Joined-Up Government Can Be A Bad Thing

The National Counterterrorism Center is now being allowed access to all governmental databases to trawl for suspicious activity. The Wall Street Journal (“U.S. Terrorism Agency to Tap a Vast Database of Citizens”) and the Volokh Conspiracy (“DHS Dresses Up A Turf Fight as a Privacy Issue While Ignoring the Lessons of 9/11”) both report on this development, from opposing perspectives.

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).

Possibly terroristic non-US person Malala Yousafzai.

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?

Your government, protecting you. With science!

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.

Headlong Flaming from the Ethereal Sky: David Petraeus, Civic Leadership and the Surveillance State

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

Exopolitics 101: What to Do When Both Major Parties Agree, And You Don’t

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.

Election Watch Potluck Social!

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.

Meanwhile, Here in Massachusetts: Legislation Limiting Surveillance Proposed

Many people don’t realize that there’s plenty of activity in US state legislatures around warrants, surveillance and privacy.

Trust me. I’m from the government.

One good bill that has been proposed this session here in Massachusetts is S. 1194 / H. 1336, “An Act to protect privacy and personal data”

These identical bills were brought forward by Senate Majority Whip Harriette Chandler (D-Worcester) and Rep. Jason Lewis (D-Winchester and Stoneham) and strongly advocated for by the ACLU of Massachusetts in the last two legislative sessions.

The bills are mainly concerned with limiting the activities of the Commonwealth Fusion Center and Boston Regional Intelligence Center, and restricting the surveillance of peaceful activists. There’s a lot of reason to suppose that the main effect of the work of these centers is to chill peaceful efforts to petition the government for redress of grievances (as the First Amendment puts it).

If the bills pass, CFC and BRIC will be required to not retain criminal intelligence information or personal data if there is no reasonable suspicion that the individual is involved in criminal conduct or activity. They must adopt information security practices that minimize retransmission of such information, provide an annual report to the secretary of state, and conduct an annual audit of their information collection, which will be a public record. No state or local law enforcement agency, prosecutorial office, criminal intelligence system, police or peace officer, or agent thereof shall track, collect or maintain information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership or other entity unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is involved in criminal conduct. There are further rules specified to limit the dissemination of such “protected information” and to require individuals to sign off on such dissemination so that they can be held accountable for violations.

You can find out here who your state senator and state representative are. Please call them to let them know that you support these bills. This is the list of current supporters:

SENATE: Harriette L. Chandler, Cynthia S. Creem, Kenneth J. Donnelly, James B. Eldridge, Susan C. Fargo, Thomas M. McGee, Karen E. Spilka, Jennifer E. Benson, Steven L. Levy, Martha M. Walz
HOUSE: Frank I. Smizik, William N. Brownsberger, Peter V. Kocot, John P. Fresolo, Kay Khan, Denise Andrews, James Arciero, Cory Atkins, Ruth B. Balser, Jennifer E. Benson, Linda Campbell, Gailanne M. Cariddi, Thomas P. Conroy, Carolyn C. Dykema, James B. Eldridge, Christopher G. Fallon, Linda D. Forry, Sean Garballey, Jonathan Hecht, Bradley H. Jones, Jay R. Kaufman, Stephen Kulik, Steven L. Levy, Elizabeth A. Malia, James J. O’Day, George N. Peterson, Byron Rushing, Jeffrey Sánchez, John W. Scibak, Carl M. Sciortino, Theodore C. Speliotis, William M. Straus, Benjamin Swan, Chris Walsh, Martha M. Walz, Thomas M. Petrolati, Paul Adams, Alice K. Wolf

Worldwide Anti-Surveillance Protests Tomorrow

Protests worldwide tomorrow against the surveillance state.

As Joseph Heller once put it, “Just because you’re paranoid doesn’t mean they’re not after you.”

Symbolic Spending to Combat Terror: Or, Let’s Spend Your Tax Dollars on Snooping rather than on Anything Useful

The new US Senate report on the uselessness of fusion centers reminds me irresistibly of an old episode of “Yes Prime Minister”:

Nobody’s interested in the Social Science Research Council. Or the Milk Marketing Board. Or the Advisory Committee on Dental Establishments. Or the Dumping At Sea Representation Panel. But Government still pays money to support them.
– Don’t they do a lot of good?
– Of course they don’t. They hardly do anything at all.
– Then let’s abolish them.
– No, no, Prime Minister. They are symbols. You don’t fund them for doing work. You fund them to show what you approve of. Most government expenditure is symbolic.

The fusion centers are the signature initiative of Homeland Security Secretary Janet Napolitano. They were supposed to collate and report quickly on terror threats. The report makes clear that whatever amount – maybe as much as one billion dollars – has been spent on them, has been wasted. Investigators were unable to find a single case where a fusion center had supplied information that thwarted a terrorist threat. Instead, our money has been spent on collecting a heterogeneous mass of partially reliable information on the activities of peaceful activists.

At the same time, the ACLU of Massachusetts’ new report on the Boston Police Department’s Boston Regional Intelligence Center paints a very similar picture, with more casual person-to-person oppression thrown in (video here).

It’s no surprise if ordinary people who oppose the increased power of government to scrutinize our lives, feel anxious about putting their heads above the parapet. I was anxious myself till I became an American citizen this year. Who wouldn’t feel angry at their taxes being wasted investigating groups like Veterans for Peace?

This isn’t about any rational threat assessment. This is about symbolism and fear. The US government has spent roughly one trillion dollars on anti-terrorism efforts since September 11, 2001. That trillion dollars could have saved any number of lives if deployed on useful things. Our roads and bridges are falling apart, our public school have to scrape for money for sports, arts and field trips, and tens of thousands of Americans die each year for lack of basic preventative health care. Rather than helping with those things, our politicians wrap themselves in the flag and pour tax dollars into a black hole labeled “Anti-Terrorism”, without bothering to find out whether we’re spending too much or too little, or what’s working and what’s not. What’s it to them? It’s not their money. It’s your money and mine, and the party has got to stop.

If the fusion centers can’t demonstrate that they are providing a useful service, they should be closed. The entire intelligence, counter-terrorism and defense budget should be audited every year. We should reimpose Constitutional limits on the deep state, requiring government officials to actually justify what they are doing to neutral third parties in the judiciary. No-one gets a get-out clause, in the name of “terrorism” or anything else.

This isn’t a “far-left” thing or a “far-right” thing. Seems like any issue on which the main parties agree gets ruled out of bounds for discussion. The Sunday talk shows are all about the horse race, who’s up and who’s down and who gaffed and who didn’t. But the sad fact that most Republicans and most Democrats agree on wasting our money on stuff like this, doesn’t make it right.

The Public Is Now “The Enemy”

Newly leaked documents show that a US Air Force network operations manager was investigated last year after expressing sympathy for Wikileaks and for Pfc. Bradley Manning, under a charge of “Communicating with the Enemy”. This charge is technically punishable with death.

Glenn Greenwald reports on the case here, but I want to explore a curious element of it. For the charge of “Communicating with the Enemy” to hold water, the servicemember in question would have to have done the following:

“(a) That the accused, without proper authority, knowingly gave intelligence information to the enemy; and
(b) That the intelligence information was true, or implied the truth, at least in part.”

“Enemy” is further defined as including:

“organized forces of the enemy in time of war, any hostile body that our forces may be opposing, such as a rebellious mob or a band of renegades, and includes civilians as well as members of military organizations. “Enemy” is not restricted to the enemy government or its armed forces. All the citizens of one belligerent are enemies of the government and all the citizens of the other.”

The obvious question is: who is the “enemy”?

The simple answer is that the US government now sees Wikileaks itself as a non-state enemy organization, perhaps along the lines of SPECTRE in the James Bond movies with Julian Assange in the role of Count Blofeld; or, as a real-world analogy, like the bloodthirsty fanatics of al-Qaeda. It’s unprecedented for the US government to class as an “enemy” an organization that does not advocate, promote or use violence to further its aims, and the USAF documents themselves show the ridiculousness of the charge:

Air Force investigators were unable to come up with any actual victims that would result from helping Wikileaks, so they simply listed under “VICTIM:”, “Society” itself. This is further proof that the current exercise of American power is alien to the spirit of the Constitution. If there was no definable harm, why was there an investigation at all?

Let’s add into the mix the risible letter from NSA last month responding to Sen. Ron Wyden’s request to fund out how many US nationals’ communications were being spied upon, and saying that to inform Sen. Wyden of that would “violate the privacy of US persons.”

I ask again, who is the “enemy”?

Wikileaks is, like the New York Times, a mechanism for getting information out to the public, whether in America or elsewhere. The real “enemy” is not Wikileaks; it’s the American people itself. We have to be saved from ourselves. If we come to know too much – if information that embarrasses the American government were allowed to spread unchecked – then it would significantly undermine the ability of the American government to project its power unilaterally both at home and abroad.

Imagine a world where the government couldn’t take the country to war based on manufactured evidence, or a world where people realized that the use of American power in certain poor and Muslim areas of the world kills many innocent people and creates more new terrorists than are killed.

The real crime here isn’t “Communicating with the Enemy [sic]” We need a new term, and fortunately history gives us a clear precedent. So, in honor of the Soviet dissident Solzhenitsyn, I’m christening this crime “Anti-American Agitation”, or Triple-A.

We have got to get over the fact that there will always be, somewhere on the Earth, people who are harboring negative thoughts about the United States. Such feelings are a natural corollary of empire. We can’t stop people feeling that way by showering them either with propaganda or with bombs. We can, however, act to undermine anti-American sentiments by not actively supporting oppressive and undemocratic governments. For some reason, though, this cheap, safe, and effective alternative to current American policy never seems to occur to people in power.

To those who seem to be hastening to have America emulate the might and decadence of Rome: empires always fall. Rome fell, the British Empire fell, the Soviet empire fell. Trying to control too much engenders rebellion, and efforts to suppress rebellion make people lose faith in the empire’s reason for being. Let us not therefore, O Lord, become like the empire Tacitus describes, in the mouth of a British rebel:

“The terrible Romans, from whose oppression escape is vainly sought by obedience and submission. Robbers of the world, having by their universal plunder exhausted the land, they rifle the deep. If the enemy be rich, they are rapacious; if he be poor, they lust for dominion; neither the east nor the west has been able to satisfy them. Alone among men they covet with equal eagerness poverty and riches. To robbery, slaughter, plunder, they give the lying name of empire; they make a solitude and call it peace.”

DHS: All Your Blogs Are Belong To Us

Who is the Department of Homeland Security tracking online? EPIC brings the results of a Freedom of Information Act request that discloses a Department of Homeland Security contract with General Dynamics to monitor comments on websites.

DHSblogsmonitored

Thanks for the tips, DHS snooping guys! If I hadn’t been reading some of these before, I certainly will now!

Aside from the regular sites here that monitor and translate foreign news sources relating to threats to national security, there is a heavy emphasis on sites that take a critical view of the surveillance state (especially Wikileaks, Cryptome and Wired). Amusingly for my pedantic soul, Homeland Security Watch is listed twice.

Back in the days of J. Edgar Hoover’s COINTELPRO, government agents often had to physically impersonate civil rights activists if they wanted to be privy to their communistic conspiracies. Indeed, Occupy shows that they still do. But if J. Edgar Hoover had had the technological tools available to today’s FBI/DHS, there might have been no civil rights movement at all. The ability to plan dissent in secret, without fear of arbitrary imprisonment, torture and trial, was much on the mind of the insurgents we now call the Founders, and underlies the protections of the Fourth, Fifth, Sixth, Seventh and Eighth Amendments. The Founders, in fact, were keen in principle to safeguard the right to behave in ways the government of the day emphatically disapproves of.

I’m not saying that we can’t expect the government to snoop on people online. Comments on websites are in public view, and those who make them have no reasonable expectation of privacy in what they say. However, I am letting you know that (a) they are doing it, (b) that they provably have a priority focus on undermining opposition to the surveillance state, and that (c) if you’re interested enough in these issues to be reading this stuff, you’re probably right to be feeling watched.

Happy surfing!

obey-eye-poster-fnl

The House Reauthorizes the FISA Amendments Act, but Opposition Grows Among House Democrats

I care very passionately about Fourth Amendment rights, and of all the legislation on this issue, the FISA Amendments Act is possibly the worst. Hurriedly passed in 2008 with the Bush administration having one foot out the door, it retroactively immunized telecommunications companies from liability relating to their blatant disregard of laws intended to keep Americans’ phone calls secret. It allowed the executive branch to spy on Americans’ communications and retain their content, provided that the intent was to capture the content of communications with foreign nationals relating to terrorism – and who can say what the intent was? It was a blank check for the executive to do as it pleased, and perhaps that’s why then-Senator Obama voted for it.

You might think, then, that a House held by a party that waxes at length about how America is groaning under the tyranny of the Marxist-in-chief might oppose reissuing that blank check. As it turns out, not so much. The final vote tally was 301-118 in favor, including 227 Republican Yea votes.

So, what’s going on? What is happening to House Democratic support for civil liberties? And why are House Republicans giving the Obama administration a blank check on this, and only this issue?

Unexpectedly, among House Democrats, it’s not because the change in President has made them newly comfortable with warrantless surveillance. In 2008, when the law was originally proposed, 128 Democrats voted Yes, as opposed to 74 today. Many more House Democrats opposed it in 2012 than opposed it in 2008, even with a Democrat in the White House. 12 Democrats voted Nay in 2008 and Yea in 2012, and 9 Democrats moved the other way. However, Democrats new to the House, elected in 2008 and 2010, were much more likely to oppose reauthorization of the FISA Amendments Act. This is presumably because warrantless surveillance was a hot issue with the Democratic base during the last years of the Bush administration, making it more likely that freshman Democrats would have run on opposition to warrantless surveillance relative to Democrats previously in the House.

The seven Nay votes among Republicans came from Amash (R-MI), Duncan (R-TN), Gibson (R-NY), Johnson (R-IL), Jones (R-NC), McClintock (R-CA) and Paul (R-TX ). They’re not Tea Party Caucus people (only two of its 61 members opposed reauthorization); instead, Ron Paul’s Liberty Caucus is leading the way.  We can deduce from this that the Tea Party folks really don’t care about the Fourth Amendment, or alternatively that they really think that the surveillance covered under the FISA Amendments Act relates only to foreign nationals. Freshman Rep. Trey Gowdy (R-SC) asked tellingly during the one hour of debate allowed, “Are we to believe that the Fourth Amendment applies to the entire world?”, and many other speeches showed that House supporters of reauthorization thought it related only to foreign nationals.

Let me be blunt (I’m not that good at being tactful). There’s no out. There are no exceptions. The Constitution applies always, and people who claim it doesn’t can go suck it. Our Fourth Amendment should apply to every US government action anywhere in the world. Other governments’ actions can be bound by their own constitutions. But each government actor swears to uphold the Constitution, and they should do it. When the prison camp at Guantanamo Bay was set up, it was set up there on the theory that Guantanamo Bay was not US soil and the Constitution therefore didn’t apply there. I believe that wherever in the world the US government exercises control, its acts should be bound by the US constitution. If the US government wants to argue that the US constitution doesn’t apply at Guantanamo, then no legal vacuum can exist, and the US government is therefore bound in its actions there by the constitution of Cuba, from whom the US government leases Guantanamo Bay. And who wants that?

The courts, unfortunately, have endorsed executive abuses of the Fourth Amendment in part, and have introduced invalid distinctions between US governments spying on American nationals and US governments spying on foreign nationals. One day, I hope to see those distinctions overturned, and a uniform standard of probable cause applying to all surveillance efforts.

The FISA Amendments Act reauthorization now moves to the Senate. Please write your Senator to let them know that, for the sake of all of us, this vicious legislation should be allowed to die. Senator Ron Wyden (D-OR), to his immense credit, has put a hold on the reauthorization; please thank him here.

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