Author: Alex Marthews

The big guys, the big dogs, are going to own everything from the White House to the courthouse. Gov. Brian Schweitzer.

In the one case where someone has evidence of having been surveilled by the government’s warrantless wiretapping program, the lawyers representing the plaintiffs have decided not to appeal to the Supreme Court. They don’t believe the current court would side with them, and if they’re right, federal overturning of the warrantless wiretapping program will have to wait on a membership of the court more favorable to the Constitution.

This raises an important strategic question for surveillance activists: Which branch of government should we focus our efforts on?

Is there any realistic prospect of electing a President who will oppose warrantless wiretapping themselves? It’s hard to imagine. In 2008, Obama opposed it vehemently in public until he was safely the nominee, and then supported it with equal vehemence in private. Despite this, there was no progressive primary challenge to him in 2011-12 that would have forced him to adopt a less radical position. Any feasible winner of a Republican primary will have wedded himself to a policy of uncritical belligerence towards America’s enemies, which will necessitate continuing the program. The federal-executive route to a solution, then, depends on pure luck – on nominating a candidate who turns out in office to be a real friend to the Constitution.

Will Congress do anything? Congress has repeatedly failed to restrain the executive on warrantless wiretapping in even the most moderate ways. Right now, only just over one-fourth of Congressmembers oppose it. They are almost all Democrats, with a leaven of Ron Paul-inspired libertarian Republicans. This will only change substantially if the Republican Party chooses to focus on and oppose this program. They have been curiously reluctant to do so, perhaps because (1) they hope that a Republican President will be able to use those powers himself one day, or (2) because Congressional Republicans are conscious of having vigorously supported the Bush-era expansion of warrantless wiretapping and would feel hypocritical for opposing it now.

Therefore, many surveillance activists have put their hopes in the federal judiciary: that if a ruling is ever made on the merits, the warrantless wiretapping program will be overturned. We have reported ourselves on a variety of cases (Amnesty v. Clapper, Jewel v. NSA and Al-Haramain v. Obama et al. However, as we hear today (h/t Techdirt), the only case that has made it far enough and has some chance of success, is not being appealed up to the Supreme Court, because the plaintiffs’ lawyers fear that a (likely) adverse ruling would create a nationwide precedent.

So if the executive won’t rule itself, Congress won’t rule the executive, and the Supreme Court won’t overrule Congress or the President, what are we left with as surveillance activists?

This is the point where many surveillance activists will say: There is nothing left but revolution. I disagree. There is one method left: a slow, frustrating method, but one that has worked for groups on other issues, and that can eventually work for us.

Two major civil liberties fights over the last decade related to gay marriage and marijuana policy. In each case, while there was certainly activity on the federal level, activists began with an environment where the majority of public opinion was clearly, and strongly, against them. Working on the state level, and starting with “friendly” states, they were able to shift state policy even in the context of strong federal hostility to changes in state law. Then, the changed state policy context began to influence legislators elected from those states, and to constrain the ability and willingness of the federal government to enforce federal law.

This is what Digital Fourth is about. We’re starting with Massachusetts. Join us.

In an entirely expected development, on December 28, while talking heads were yammering non-stop about the so-called “fiscal cliff”, the Senate quietly passed a five-year renewal of the repulsive FISA Amendments Act, re-legalizing warrantless spying on Americans and ensuring that the Fourth Amendment’s requirement of individualized suspicion before conducting surveillance remains a dead letter.

The interesting questions here are two. Why is it that the media is not giving such a gross violation of the Constitution the weight it deserves? And, why is there much more public interest in other issues?

Scott Shackford over at Reason.com has an effective article about the media presentation of this issue:

Indeed, the very secrecy behind the application of federal domestic wiretapping has made it impossible to introduce a human narrative. We do not even know how many Americans have been spied on due to these rules (which was what Wyden’s amendment was trying to fix). Like our foreign drone strikes and indefinite detention laws, the public’s distance from the actual rights violations (and government-fueled fears of acts of terrorism) is a useful barrier for the state to get away with expanding its authority beyond the Constitution’s limitations without significant voter pushback.

Whereas, just about everybody’s on Facebook.

Bluntly, the government is obsessively secret about its surveillance program at least in part for propaganda purposes. It is a lot harder to object to a program when you can’t identify the people who have been harmed, or put a face to the story. The kind of surveillance that is the subject of litigation in Jewel v. NSA, for example, where all phone calls in an exchange were routed through a secret NSA-run room, is deeply disturbing because of the awesome potential power it gives to the government, rather than because of actual prosecutions that have been mounted using improperly obtained evidence.

Perhaps, also, this is a topic that is difficult for the TV media to deal with in the time they have. It’s hard to get across to people within the span of a short broadcast how much Congresspeople of both parties are self-deceiving and willing partners in the shredding of the Constitution. It’s much easier to go with the straightforward, patriotic narrative that these measures are necessary. The Democrats agree, the Republicans agree, most Beltway commentators agree, so where’s the controversy to report?

Nearly one thousand news sources are now avidly following the details of the Petraeus sex scandal. Turn on the TV, and you’d be forgiven for thinking that some kind of cosmic hero had fallen to earth. In reality, Petraeus was pumped up from the beginning. His hero status was always a media creation, and it’s only really the media that now feels “betrayed” by the “surprise” that he was not the new Captain America that they had imagined him to be.

While his fall matters less than the coverage would suppose, it does raise a couple of questions that should make us all uneasy.

First, Petraeus and Broadwell worked hard to conceal their affair from prying eyes – setting up a dedicated Gmail account, not emailing from home, and so on – but their precautions were pathetically inadequate in the face of an FBI that has gleefully abandoned any pretense at respecting the communications privacy of Americans. Get on the government’s radar, the Petraeus case seems to tell us, and every secret you have will be spilled, whether or not any crime was actually committed.

Second, Broadwell herself had ambitions of running for office someday. That so ain’t happening now. Political opponents would barely have to lift a finger to discredit her candidacy. You can easily argue that she brought it on herself; but in this new digital age, your past humiliations stay with you all your life. There are no fresh starts and no redemptions. If past generations of presidential candidates had had all their sins – with pictures! – held against them, then scarcely a one (except perhaps Carter) would have passed the test. New generations, who have lived all their lives online, are going to be deterred from entering public life by spectacles like this, and we should expect many more. We are rapidly approaching the point where only Pralite monks will be able to risk entering public life.

Some surveillance activists might feel satisfaction in the fact that a leading figure of the surveillance state has been laid low by apparently warrantless surveillance from a competing agency. The surveillance revolution is indeed beginning to consume its own children. Truthfully, it arouses only pity in me.

Use every man after his desert, and who should escape whipping?

As usual, Glenn Greenwald hits the nail on the head:

Glenn Greenwald: Petraeus Had Affair w/ Biographer, Corporate Media Had Affair w/ Petraeus

I have steered off of discussing the presidential race so far, because on most Fourth Amendment matters the candidates of the two major parties are in complete agreement. Topics to do with surveillance, such as the NSA’s massive warrantless surveillance program, the National Defense Authorization Act, and aerial surveillance by drones and satellites equipped with high-resolution digital cameras, have been largely absent from the presidential debates and from discussions by surrogates on TV and radio. However, so that there’s no doubt on the matter, it’s worth making Digital Fourth’s position clear in advance of knowing who the president will be.

I opposed Clinton’s abuses of the Fourth Amendment under the ECHELON and Carnivore programs. After 9/11, I opposed Bush’s disregard of FISA and his massive expansion of warrantless wiretapping. I opposed Congress’s retroactive legalization of the telecommunications companies’ participation in warrantless surveillance of Americans. Under Obama, I still oppose his continuing and in some respects expanding upon Bush’s legacy.

Our stand does not depend on which party is in power. Whether the US President for the next four years is Romney or Obama, we will vigorously oppose the bipartisan effort by the deep state to disregard the Fourth Amendment. We will support efforts to hold administration officials, past and present and of either party, accountable for the abuses they have committed. Within Massachusetts, and in New England more generally, the dominance of Democrats in state office has regrettably not prevented the abusive surveillance conducted by the Boston Police Department of peaceful activists, or the futile waste of tax dollars represented by the Commonwealth Fusion Center. We are, and will continue to be, willing to work with elected officials and activists within and outside of the party system who have an interest in the meaningful restoration of US residents’ Fourth Amendment rights.

We may be frustrated by the failure of Democrats and Republicans to address this issue, but we still encourage people to go vote. Let your representatives know how you feel on these issues. Write letters, make calls, and let them know that we’re watching them watching us. If you want to help directly with Digital Fourth’s legislative efforts, sign up here. And on Election Day, may the incrementally better guy win.

Where: Cambridge Innovation Center, One Broadway, 4th Floor, Cambridge, MA 02142
When: 7pm, November 6.
RSVP to: alex@warrantless.org

Come to our nonpartisan Election Watch Night, watch the results roll in, and talk tech and surveillance stuff with Digital Fourth volunteers. There will be also a mock election for non-US Citizens.