As we residents of Massachusetts gambol heedlessly downward from the Mountains of Liberty toward the Swamps of Oppression, let’s take a brief breather to consider a more general commentary on surveillance.
Philosophical examinations of governmental surveillance powers center on eighteenth-century founder of utilitarianism Jeremy Bentham and twentieth-century philosopher Michel Foucault. The key concept used to inform their thinking is Bentham’s notion of the Panopticon:
The Panopticon was a prison with the cells in the outside circle and the guard tower in the center. Each prisoner was, at all times, perfectly visible to the guards. The guards were invisible to the prisoners, so prisoners had to assume that they were being permanently watched.
The way you hear Martha Coakley tell it, Massachusetts’ laws relating to when you can and cannot issue an electronic wiretapping warrant are about as effective as using a clown car to fly folks to the moon. They were passed in the 1960s, man! Don’t you know you can’t trust any law over 30?
Of course, the Bill of Rights is nearly 220 years old, and many people seem somehow to find it important despite being oldy oldy old old. So we figured, why don’t we take a look at what other comparable states do, and see if Massachusetts’ laws look comically outdated compared to them?
Let’s try our friends over in dull-but-wealthy Connecticut! What does Nutmeg State law enforcement have to do to get their donut-frosting-smeared mitts on one of those sweet, sweet electronic wiretapping warrants?
On Saturday, a new civil rights group called “Defend the 4th” conducted a successful protest against the TSA. Despite the bitter cold, over 200 people turned out, marching from various points on the MBTA system and congregating on Boston Common. People attending included folks from Anonymous, Occupy Boston, the Pirate Party, the Republicans, the Ron Paul folks, the Socialists and a most righteous quantity of press organizations. Congratulations to organizers Garret Kirkland, Tamarleigh Grenfell, Frank Capone, Petey Bouras, Elvis Rodriguez and Joshua Chance Scafidi.
I was impressed to see that even in the depth of winter, 150 people in the Boston area were willing to turn out to defend the Fourth Amendment. That’s the equivalent of 1,500 in the summer.
Why were we so upset about the TSA’s activities on the MBTA? Since 2006, the TSA has been conducting “random” bag searches on the MBTA, where they scrape bags for explosives. They are “random” because federal law requires suspicionless searches to be random in order to pass legal muster, but the TSA can (and has) selected, say, Dudley Square T station (in a mostly-black neighborhood) rather than Symphony station (in the tony South End), as their base of operations, and then “randomly” chosen one out of five travelers. If a traveler doesn’t consent to a search, they have to go to another station (or sometimes simply a different entrance to the same station). Oh, and the TSA doesn’t work shifts on the MBTA at weekends.
The TSA must think that terrorists are the dumbest people on Earth. It requires only a minimal amount of intelligence for an explosives-carrying terrorist to decide that this policy makes Sunday the best possible day for a terrorist attack.
What does this remind me of? Oh yes…
This is pure security theater. It’s designed to make the TSA look as if it’s doing something. Not coincidentally, it also extends the authority and reach of the TSA over our ordinary lives, and to justify expanded budgets. No evidence has ever been made public that any terrorist entity is targeting the MBTA. But even if there were such evidence, we have the right to travel freely around our country. The authorities, whether TSA or anyone else, must have probable cause before targeting any of us for a search. We’re not a country that does internal passports, random checkpoints, or asks citizens to show their papers without cause.
More specifically, the demonstrators’ constitutional concerns have at least some merit. In ten states (Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming), sobriety checkpoints and therefore also these kinds of random bag checks are explicitly unconstitutional. In Massachusetts, the state Constitution’s Article XIV suggests strongly that random bag searches would also be unconstitutional here:
Art. XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right [cp. are unconstitutional], if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.
Got that? To be constitutional, a search “in suspected places” must “be accompanied with a special designation of the persons or objects of search”. Random bag checks don’t do this.
This should serve notice to the TSA. People are beginning to wake up to the TSA’s disrespect for long-established rights. There’s no evidence of a threat to the MBTA; there’s no evidence that random bag checks are effective; and the checks are of doubtful legality. Without some pushback, every agency will want a piece of the homeland security pie, till our every move in public becomes the object of surveillance by a newly and aggressively militarized police presence. We can afford a gentler and more civilized way of life.
Some folks might be ashamed to use the bodies of dead kids as cover for a power grab. That clearly doesn’t include Massachusetts Attorney-General and failed Democratic Senate candidate Martha Coakley.
The Globe reports that Coakley, along with state senator Gene O’Flaherty (D-Chelsea) and state rep John Keenan (D-Salem), have introduced a new bill to massively expand law enforcement’s power to conduct electronic wiretaps of our communications (S. 1726 / HD 1194).
In her press conference, Coakley cited the school shooting in Newtown, and a 2011 case where a murder conviction was overturned because it rested on evidence obtained under a wiretap that was not valid under current Massachusetts law. What the Globe doesn’t mention, but Waltham’s Daily News Transcript does, is that the murderer in question was convicted later anyway (good reporting, Andy Metzger!).
There is not one scrap of evidence that easier electronic wiretapping would have prevented the school shooting in Newtown, or would prevent school shootings here in Massachusetts. The Newtown shooter wasn’t on Facebook or Twitter, and nothing has emerged relating to his computer or cellphone use.
More importantly, if the best evidence Coakley and friends can come up with to justify expanding wiretapping powers is a case where they got a conviction in the end anyway, that changes their argument completely. Instead of “this will help us convict more criminals”, they’re really arguing “this will save us some time and expense”.
Sorry, guys. That won’t cut it. Any limit on government investigatory powers makes investigations longer and more expensive. That’s the point. If investigations are costless, everyone will be investigated, because why not?
Last, and most laughably of all, both Coakley and O’Flaherty breathlessly told the press that “criminals have the upper hand” here in Massachusetts. Here’s a graph showing crime rates per head in Massachusetts, using federal crime statistics:
The facts show that crime has been steady at less than 3 reported crimes per 100 residents per year since around 2002, and that that level is the lowest since 1968. Criminals don’t have “the upper hand” here in Massachusetts. Crime is about as low as it’s ever likely to go.
Let’s not kid ourselves what this is about. This is not about reducing crime. Remember, they can’t think of a single case where there’s a criminal walking free today because electronic wiretapping is only allowed under narrow circumstances here in Massachusetts. This is about power. The AG’s office knows that it’s technologically possible for them to monitor more of our electronic communications, and it bugs them that it’s illegal to do, whether or not that monitoring will result in more convictions. So, they’re ginning up false fears of crime, calling this an “update”, and trying to get the people of Massachusetts to agree to join them in the brave new mass-monitored world – which they, not us, would control.
Guys, you’ve been rumbled. Your arguments don’t make sense. Find better ones or go home.
Why not let them know how you feel?
To contact the Attorney General’s office, try here.
To contact State Senator Eugene O’Flaherty, try here.
To contact State Representative John Keenan, try here.
There are no words to describe the loss to the world of brilliant technologist Aaron Swartz, who killed himself this weekend at the age of 26.
Aaron had already helped to develop RSS and Reddit, worked to stop the Stop Online Piracy Act, and was deeply involved in Internet activism. He could easily have devoted his extraordinary skills only to profit; instead, he committed himself passionately to openness and the spread of knowledge. Lawrence Lessig has summarized his work far better than I can. The creator of the World Wide Web, Tim Berners-Lee, gave the eulogy at his funeral.
Aaron’s death teaches us an important lesson about how the law operates here in 21st-century America. He was not the only local activist to be unnecessarily persecuted by government agencies. Laws relating to our Internet activities have been drawn so widely and so poorly that eager prosecutors can find grounds for indicting more or less anyone, for things that in former times the law would not have defined as crimes at all. Government agencies can now open investigations on people, and subject them to the sledgehammer of the criminal justice system, on the strength of nothing more than unwise posts on Twitter or translating the wrong materials. Prosecutors answer to nobody regarding the fairness or proportionality of their investigations.
The result is that dissidents who hamper powerful interests can far too easily be investigated and silenced. The result is that brilliant, original and public-spirited souls like Swartz exhaust their energies on meaningless legal battles, rather than developing new and wondrous technologies to solve problems we all face. We’ll never know now what Aaron Swartz would have come up with next, thanks to the casual brutality of a criminal justice system that cares more for creating criminals than for achieving justice.
Know what side you’re on. Overcriminalization hurts us all. We need to stand together, and rein in this crazy system, before it chews us all up.
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?
There are obvious analogies here to the Boston PD’s gross violations of protesters’ rights documented in the ACLU of Massachusetts’ Policing Dissent report this fall. Again, we see the fusion centers act as a nexus for the investigation and disruption, not of actual terrorist plots, but of peaceful opponents of the military-industrial complex here at home.
Just because one part of the government has a certain set of data, doesn’t mean that all other parts of the government should have it. Your tax return is kept privately within the IRS; records of your immigration applications stay with USCIS; Medicare keeps your health records private; and so on. This kind of data confidentiality used to be routine; but once again, in the service of terrorism, the normal limitations on government power are considered expendable.
This is what happened.
NCTC asked the Department of Homeland Security for access to a database on terror suspects. DHS gave NCTC the disks, on the condition that NCTC, within 30 days, remove information regarding “innocent US persons” (innocent non-US persons are apparently fair game).
NCTC couldn’t do it. In fact, after 30 days they had barely been able to download the database from the disks. Even with another 30-day extension, they couldn’t do it, and in response to this failure, they have demanded, and gotten, even broader access to even more government databases. The only constraint is that any time they access a new database, they have to publish that fact in the Federal Register.
Their problems in removing “innocent US persons”‘ data are completely understandable, because NCTC was anxious that today’s innocent person may not turn out to have been innocent tomorrow. How do you remove innocent people, when nobody is provably innocent?
From a resource standpoint, how could NCTC possibly deploy enough skilled analysts to prove the innocence of the (at minimum) hundreds of thousands of people this one database contained? And that’s just one of the many databases to which they will now have access!
This is an example of what, over at EFF when I was interning there in 2000, we used to call “Data Valdez”. The amount of data being created is enormous and essentially impossible to thoroughly analyze. The federal government has, in its various parts, access to data on every part of our lives, but no matter how fast its computers, it will never, ever have the human resources necessary to process it properly. Demanding access to ever greater oceans of data is not going to help. It’s a processing problem, not a data problem.
That’s why, at Digital Fourth, we recognize the wisdom for law enforcement of aggressively applying the constraints identified in the Fourth Amendment. Even if you have the ability to collect more data, it works better to consciously commit to collecting less. Law enforcement should, for its own sanity and ours, collect, retain and use in investigations only data that is related to investigations of actual, well-defined crimes committed by previously identified people. Only then will the volume of data collected be low enough that law enforcement will be able to process it thoughtfully and intelligently. Yes, that means that connections will be missed that will only become apparent after the fact of an attack. But we cannot insure perfectly against the probability of future attacks. We have to invest our resources rationally, and we have vastly over-invested in preventing terrorist attacks relative to other things that kill many more Americans.
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: