Frank La Rue, UN Special Rapporteur on Freedom of Expression. Photo by Catherine A. Fitzpatrick 2013
On September 26, I went to a program at the New York University Law School sponsored by the Open Society Foundation (Soros). Eventually the audio tape will be posted online and then I'll link it here and you can listen yourself. Meanwhile, I'll give you my overall impressions, including side conversations, which is something you can't get just from a tape.
Here was the program:
“Surveillance, Privacy, and Freedom of Expression”
Philip Alston at NYU Law School
Center for Human Rights and Global Justice
Frank LaRue, UN Special Rapporteur on Freedom of Expression.
· Robert Litt, General Counsel of the Office of the Director of National Intelligence.
· Katitza Rodriguez, International Rights Director, Electronic Frontier Foundation.
· Philip Alston (Moderator), Co-Chair, NYU Center for Human Rights and Global Justice.
In the end, Robert Litt didn't come, and I never did hear the reason why -- if it was explained possibly in the first minute of the presentations (I was a few minutes late), I missed it and no one referred to it.
Mr. Litt need not have worried if he stayed away for fear of heckling -- there were some in this crowd who were more skeptical of Snowden and his works than I would have thought, and somebody should have come to stand up to the lunacy of the paranoid academics.
ARE THE CRYPTO KIDS LOSING?
Even by their own admission, the panel was one-sided -- and given that most of the questions tended to run to statements amounting to "isn't it worse even than you're saying, and how do we know" or "what can we do to hide" - it was obviously a tough venue. Even so, there were questions of dissent, including mine.
And what was most important is my take-home: the Snowden-lovers and advocates of radical transparency for governments and absolute encryption for anarchist hackers are worried that they have not attracted the American public in large numbers to their cause, and they are worried they are losing.
They are disappointed that Americans don't seem to care they are being watched. They are frustrated that the mainstream press has largely lost interest and they don't know what to do -- they are jumping over their own knees.
Prof. Philip Alston opened the meeting with plenty of jokes about how we should keep our cell phones on so the NSA could listen, and that the meeting was being recorded by NYU and OSF -- but also likely by the NSA -- and of course many questions also chimed in with this theme that we all live in a giant Panopticon.
A little funny-looking fuzzy caterpillar seeming to have emerged with a piece of its chrysalis was crawling along the table in the audience -- and it seemed to be emblematic of the sense that something was secretly moving around and maybe going to burrow in somewhere...
Photo by Catherine A. Fitzpatrick 2013
Surprisingly (or perhaps not), Philip Alston, who is a long-time "progressive" and social rights advocate at the UN joining every anti-American cause, condemned the New York Times for only running a few editorials and not caring enough-- despite the fact that the Times has been utterly captured by Laura Poitras as we can easily see from their blessing of her tendentious take on the NSA in an op-ed video; Peter Maass' breathless profile of her; and today's piece co-written with Risen.
Alston yawned demonstratively to illustrate how the Times and the ACLU weren't interested (?!) -- and then even called out the ACLU for not doing enough, although of course they've lawfared around this like crazy with class-action suits and put out various campaigns on the subject.
Gosh, could they be forgiven for covering Syria or the stop-and-frisk issues instead of abstract geek stuff about how we might be spied on but aren't really, because they can't prove it!
DOESN'T TOR ENABLE CRIMINALS?
One young fellow from PEN American Center, the writers and translators organization that defends freedom of speech -- to my surprise asked the very question about Tor that I would ask -- isn't it a cover for child pornographers and doesn't that raise issues about the circumvention and encryption movement if they are willing to let criminals benefit from their software?
PEN is obviously under pressure from some radical members -- the same who complained about the fact that the new director, Suzanne Nossel, came from the Obama administration -- to "do something" regarding Snowden's supposed revelations. So recently they put out stuff, to my dismay. I doubt this was put as a vote to the entire membership.
LA RUE ADVOCATES FOR ABSOLUTE ENCRYPTION
Several NYU audience members asked if it really was appropriate to have absolute encryption that ultimately the government could not break through to legitimately track actual criminals.
And to my horror, Frank La Rue came out definitively for absolute encryption, and insisted that people encrypt themselves to the maximum and prevent governments from decrypting them or maintaining backdoors in software or even having warrants to pursue criminals. That was really wild -- surely he could have conceded that much, and if he gets pushback on this, he may walk that back (and he won't get pushback on it except from me most likely, given that he is surrounded by absolutely adoring fans, and likely discredits the US government's critique of him by merely invoking "wars" or "drones" unrelated to his mandate). But he explained that the needs of human rights defenders to protect individuals' human rights outweights the rationale of the state to access encrypted communications.
Communism as Victim, Radical Revolution as Blessed in Latin America
La Rue is from Guatamala, where the human rights movement has been strong and where unspeakable horrors were committed against leftist activists and indigenous peoples in the 1980s and some of which lingered years later. I totally understand where he is coming from, having seen the witnesses to these horrors during my time at Human Rights Watch for 10 years (1980-1990).
I think the modern human rights movement coming out of these roots protective of victimized revolutionaries, however, tends to lack any understanding of what is wrong with revolution, what is wrong with clandestine movements, what is wrong with conspiracy -- all of which were hallmarks of communist/radical socialist governments that came to power in Eurasia, Asia and Africa and were ultimately overthrown, and also hallmarks of revolutionary movements that didn't come to power with few exceptions (Cuba, Nicaragua, Venezuela) and were victimized by conservative governments in Latin America.
In South America in the 1970s and 1980s, there were massive abuses of human rights by right-wing governments -- mainly victimizing leftist and communist activists and their relatives. The problem was that this reality then enabled the left in North America to get away without critiquing communism and leftism itself then. They didn't care that communism had caused in its day millions of people to be jailed and killed in the Soviet Union and its allies -- and continued its repressive reign well into the 1990s. It was if all that suffering and the proof of the horror and futility of the communist ideology in another part of the world were bracketed out, made invisible, relegated to history, and some purity of purpose far from these horrors was ascribed to the movements in Latin America because they had bad governments.
We could never question communism and its crimes anywhere, even given oppressive states like Cuba, because the communists were victims -- it was victimology at its finest. This created a paradigm of the Latin American activist as always good, always better than his government, and never required to explain why he made common cause with oppressive governments overseas or in fact had a revolutionary ideology antithetical to human rights (and when the Sandinistas came to power that was immediately obvious from suppression of the media and assembly, and remains obvious today in Cuba and Venezuela).
Human rights lawyers and activists who may or may not have been communists tended not to confront their communist/socialist clients over their ideologies antithetical to a liberal society and human rights per se -- simply because they were victims and thus tended not to question the revolutionary and ideological approach to justice as distinct from the universalist human rights approach.
Thus you got apologists for the Sandinistas, who killed and oppressed people and were finally thrown out and to this day, the after-effects of white-washing them are still felt in something like Bill DeBlasio's campaign for mayor in New York, where he is unapologetic about visiting Nicaragua and "helping poor people" and remains uncritical of the Sandinistas -- and the liberal media can bless that and portray anyone who questions what that meant politically for us and Latin America as mere conservatives or McCarthyites or red baiters. Atrocious.
The human rights movement that grew out of these atrocities was very strong, rooted in institutions like the "liberation theology" elements of the Catholic Church and the labor unions, and justifiably very proud of itself for overthrowing dictators like Pinochet and standing up to the United States -- and rightly so. The Truth Commissions process that they began is always held up as emblematic for any society trying to make the transition to justice.
And being such clear-cut victims of torture and such pure champions of good -- and able to bracket out any discussion of the horrors of communism elsewhere in the world as merely propaganda by their oppressive governments, and able to amplify any real or perceived wrong by the US -- some of the civic activists in Latin America are incredibly self-righteous and insular, hateful of America, admiring of Russia which they see as somehow "progressive" through the Cuban/Soviet lens and the biggest believers in that superior supra-sovereign transnational "international community" which mainly consists of...them and their colleagues in NGOs and multilaterals like the UN which they'd like to have more control and power.
If you wonder why Glenn Greenwald emigrated to Brazil, it's not only because of his husband -- it's because his views of the world match up perfectly with the environment there.
So that explains why Frank La Rue can tell an audience that regardless of the very real problem of criminals taking advantage of encryption in schemes like Tor, ultimately the balance has to be weighed in favour of human rights activists who will need encryption to perform their important and unimpeachable work. That's how it is, see. Human rights and other types of civic activists in a transnational network trump all, and trump any legitimate, even very liberal and democratic government, which is by necessity always (in the view of these types) going to tend toward evil and bad faith if they have "too much power". They do this because governments are suspect, activists are good -- and should never be questioned as it is self-evident.
There is absolutely no mechanism of accountability to be deployed on these people themselves -- and just like the communists who indeed were wrongfully thrown into the sea in rightfully condemned atrocities -- as victims, as champions of justice, they believe they should never be confronted with the illiberalisms and radical propositions antithetical to human rights which they represent. That maximum encryption can't be right if it enables the abuse of children's rights by child pornogrphaers or the abuse of women's rights by stalkers and rapists or the abuse of health rights by drug dealers or even the abuse of the right to life by terrorists just doesn't fit into the supposed rights paradigms of such activists -- which needs revolutionary freedom more than other people's rights.
But ultimately, human rights -- and the goods and influence offered by the international human rights movement -- was a way for activists to leave behind discredited communist revolution, which ultimately did not prevail in their countries as planned by revolutionaries, and embark on a discourse not with outdated Marxist lexicon but one of rights that still embodied the same social justice principles.
TRANS-NATIONAL ELITE FREES THE INTERNET
Soros -- one of the greatest funders of this trans-national self-righteous elite -- is of course not going to challenge these views in any way -- even in the name of a competition of ideas or a pluralistic open society -- and will only champion them. Indeed, Soros has really long ago abandoned the idea of an open society in the sense of pluralism and competition, and himself has heavily put a thumb on the scale with billions to stack the public discourse in favour of "scientifically correct" versions of "progressivism." That's very dangerous because several things happen -- a) the "progressive" project fails -- and deservedly fails because it is too extreme and unpopular b) the "progressive" project, rigidly ideologically and absolutely sure of its infallibility never modifies and brings whatever good it represents to a larger societal proposition where it is compromised but still effective.
Why would you keep hanging around and debating, oh, climate change or national security policy with people you thought were yahoos and unscientific crazies, when the science had already shown you were right and now it was merely a question of amplification and even coercive imposition?
WILL THE UN BLESS ABSOLUTE ENCRYPTION?
To be sure, Frank La Rue has no standing for this personal position on encryption in any UN document or interpretation of a document in a general comment anywhere, and the countries of the UN are hardly going to turn absolute encryption into a right any times soon, if ever.
Every single freedom-of-expression article or comment or jurisprudence always adds on to this right variations of the concept "except as necessary for public order and morals in a democratic society" - fully mindful of the fact that exceptions should not play into the hands of tyrants who use concepts of "public order" over-broadly or capriciously. There isn't a single article or interpretation that says that rights can be maximized beyond legitimate crime-fighting.
That's why the language drafted by staff at Soros and its grantees at the Electronic Frontier Foundation, Access, etc. that has now been picked up by Frank La Rue, the Secretary General and the High Commissioner for Human Rights states that surveillance "may" be used for fighting terrorism or crime -- but implies that if it is used, it is perhaps suspect or shouldn't be used and other unspecified means should be used first. It's pretty awful -- and I suppose the only saving grace is that what these "progressives" say at the UN generally tends not to get far beyond them to actually influence states' policies, although it begins to have a corrosive effect.
NO REGULATORY BODY FOR THE INTERNET
Frank is mindful of the attempts by the ITU to take over the Internet, the ineffectiveness of other bodies to stop it, and the problems of the "bad-minded countries" -- which now includes -- or is even led by -- the US itself, in the eyes of these radicals. He favours the "multi-stakeholder approach" -- in my view, a flawed concept that enables both Big IT and radical NGOs undemocratically to take over the Internet. But for him, the "multi-stakeholder approach" is how the trans-national network of "progressive" elites, its fingers heavily on the scales, manages to take over, so naturally love it.
Even so, La Rue is unwilling to concede ANY body to rule over the Internet (which in fact means tacitly letting multistakeholders rule it) -- even those filled with like-minded "progressives" like the IETF or the IEEE -- oh, there are probably too many capitalist corporations influencing them in the end for his taste - -he railed against private corporations for violating privacy as well, although they are non-state actors that did not sign the International Covenant on Civil and Political Rights which governs his mandate.
STATE DEPARTMENT DOESN'T BUY IT
La Rue mentioned that he had had a "high level and professional" discussion at the State Department, but that the lawyers constantly contradicted him. I happen to know this wasn't the high level he imagined, and while professional, I'm not sure those involved were sufficiently aware of what they needed to push back hard on -- like this ridicularity of maximum encryption.
State's lawyers did push back on his antagonism to secret courts to deal with intelligence matters -- he denounced Sweden's new FISA-like court, after first denouncing them for not having any court of this type at all, and then adding it - he corrected his out-of-date report, but then doubled down on attacking the secret nature of these courts.
Again, there is nothing in UN writ that establishes that counterintelligence work can't be done in secret or that law-enforcement of any kind has to constantly open his hand up to criminal suspects in the course of its work. Yet in the UN context, just as there is no treaty that affirms the right to capitalism and protects private property as a principle for a social system (as distinct as for an individual right), there is no affirmation of what a state's legitimate pursuit of crime is. Therefore in that context, it's easy to dream up trans-sovereign notions like the Ruggie Business Principles and push them over as "international" to curb capitalist corporations -- and find a lot of enthusiasm in the socialist-minded Group of 77.
In the same way, it's easy to dream up notions of privacy or surveillance -- as the Access and EFF have done with a 100 other NGOs but no states -- and then invoke them as supranational and needed to be imposed on states in this or that interpretatation. This is the NGO game at the UN, and I get it, and sometimes it's a worthy game, i.e. such as with the Guiding Principles on Internally Displaced Persons.
Mainly, Frank La Rue wanted to talk about his crusade for the Right to Truth -- another project of his separate to the fight for privacy and encryption -- and yes, it is fraught with problems which I'll return to some other day.
THE CALIFORNIA IDEOLOGY IN ACTION: EFF'S LITIGATION AND SNOWDEN'S DOX
The Electronic Frontier Foundation activist Katiza Rodriguez is a Peruvian digital rights activist who has long worked in the field and now represents EFF's international programs.
In my view, this is the kind of person who no doubt does good and important work in her context opposing a conservative government, but who is used by the old technolibertarians/technocommunists who were the founders of EFF like John Gillmore and John Perry Barlow (Mitch Kapor has left them) to give themselves more rights credibility and regional/international/global south than they have themselves.
In fact, I think it's part of a whole stealth "march through the institutions" that these dire wolves have cunningly devised to get themselves out of the criminal taint of hackerdom into the more pure realm of the law and halo'd human rights movement. They've made a very concerted effort at getting their people in more liberal and better known (on the East Coast anyway) institutions like Committee to Protect Journalists and gotten them into lobbying organizations like New America Foundation (which is now getting overrun with the crypto kids).
They went through this whole fandago of devising and deploying Rights Con (aptly named!) to take advantage of the ebay millionaire's wife, Elaine Donahoe, an Obama bundler, who got into the position of US ambassador to the UN Human Rights Council, and then use that perch to push "Internet freedom" as they understand it -- which as we're coming to see means freedom from government and even freedom from criminal prosecution (absolute encryption, and of course piracy, Bitcoin, etc.).
This is all in keeping with the libertarian utopian notion that these men had in the California Ideology to create an autonomous Internet free of any constraint where they could be as licentious as possible and steal copies and make business models from other people's content, and also penetrate government and corporate security at will in a grab for power for themselves and their vision of society.
Rodriguez gave a sanitized version of EFF's history, claiming that it was founded to fight for Internet freedom. That's not really the case; it was founded to use the ACLU litigation model to try to exonerate and de-criminalize phreakers and hackers who had stolen security documents from phone companies, including their plans for dealing with public emergencies, all described in the very self-serving and tendentious book about them by Bruce Sterling.
I've been debating John Perry Barlow for years, and I know his absolutist notion of permission for piracy, his copyleftism, his belief in the superiority of morals rooted only in himself and his friends, and his antagonism to the rule of law, especially over himself, his friends, and the Internet (remember his infantile manifesto for cyberspace). While EFF activists tend to deflect criticism about Barlow by saying he's not really in charge directly of programs anymore, the reality is that his essential Internet sanitizing of criminality -- the flouting of the rule of law over the Internet -- permeates everything that EFF does.
And as I've pointed out, their lost cases -- the litigation they tried on topics like Verizon metadata, in lawfaring their notion of Internet freedom, is exactly the list Snowden used to hack with.
I don't think this is an accident, as the Snowden expedition run by WikiLeaks, paid for by the Fund for Free Press is very much intertwined with the leadership of EFF -- and I will return to this subject.
Most of what Rodriguez said was also designed to play into the paradigm of the oppressive Latin American government and the good activists fighting it -- and who could disagree? (Oh, except those progressive Brazilians, Venezuelans and Cubans, of course). That hackers supported by EFF are mainly directed at the United States of America, and not at Latin American governments, doesn't faze her, because no doubt in her worldview, Washington is the seat of evil that helps prop up the authoritarian governments in the region -- oh, except Cuba and Venezuela which are models for all "progressive" peoples.
Rodriguez said she particularly appreciated La Rue's work and the UN bodies supporting Internet rights because it amplified their own cause and made it thus seem stronger than it was in reality by internationalizing it. This is an old NGO trick and one I am happy to play myself as we all are in trying to tackle the problems of oppressive governments. The unfortunate reality, however is that this particular gang has nothing to bring itself to accountability like the governments they wish to confront. And increasingly it's clear to me that what they mean by freedom is not what we had always meant by rights, and that the absolutism of their vision will likely discredit Open Society Foundations in the end -- or maybe not, if OSF is absolutely certain of its own righteousness, which it is -- although I publicly have my doubts about this.
YOU HAVE NO CASE
I raised my hand and asked about the problem of there being no cases, no human face, no proof, no justiciable cases -- which Alston had to understand as he has spent his life fending off complaints about the lack of justiciability of economic rights. I said the lack of traction was because there were no individual cases, and I suspected there weren't any. All that was being discussed was the hypothetical of machine capacity and how it might be used or not by a government with good faith or not.
But it was indicative of the mindset of this crowd that Alston immediately reworded my question to be merely one about how "the movement" could be more effective with its cyber cause by "putting a human face on it."
The ACLU representative had a good excuse for the lack of cases -- why, the NSA is so secret, we just don't know. Why, that's classified information and that's why we don't know it. Why, these courts are so secret we just don't know about them.
Well, wait a minute, guys. Edward Snowden hacked a whole bunch of stuff that used to be really secret. So he didn't hack stuff that could have shown there really were individual cases? Really? And among what Snowden exposed was precisely the information about the wars of the FISA court -- and we really haven't seen a single FISA ruling or concern expressed about individual cases, as opposed to various machine capacities for dredging this or that.
The ACLU guy added that in the old days of COINTELPRO, yes, there were cases like the surveillance of Martin Luther King, Jr., and this personalized the problem. But now it is so pervasive and so blanket that it is hard to personalize as such.
And this spoke to some of the points of the people asking questions, which is that privacy itself is now a different concept than it was before the Internet.
I found the ACLU answers utterly lame -- I think there are no cases because there just aren't cases. That the NSA doesn't do the wrong intended. The fact that on Twitter even as I spoke there was a news flash that 9 people were improperly put under surveillance in LOVEINT, which somebody then later raised to me, doesn't mean a thing. Those are cases of employee behaviour in violation of work rules; they don't indicate a systemic flaw that enables the system to persecute people as the state, as opposed to an idiosyncratic individual with this or that burning personal need to spy on an ex-boyfriend or whatever.
OFFLINE AND ONLINE
Several people expressed the opinion that it was hard to get Americans to care about their communications being monitored when they themselves were responsible for putting so much online. And one young man pointed out that the person online wasn't the same as the physical person in the real world, that logging on, one loses rights because one isn't a full person. This is a variation of Clay Shirky's idea that the individual merely becomes a function of a socialized collective -- and Beth Noveck essentially says the same thing about individuals and groups online -- which is why I've always found them anathema to human rights and democracy online. This notional idea of the fractured individual becomes possible merely because of the immersiveness of the virtual reality of the Internet, but it really needs to be shed in favour of a plain-villa notion of offline rights of the individual applying online as well because online is only a tool, and offline prosecution of crime -- like theft or terrorism -- applies online as well because nothing in cyberspace magically cleanses human nature.
I caught up with an old acquaintance who is a professor who follows these issues and he pointed out that he was concerned about this "offline applies online" -- which I could add was promoted by EFF and company, promulgated by Donohoe and incorporated into the US resolution on Internet freedom (which I was very critical of last year because it incorporated too much hidden socialism in the "development" invocations). For this professor, I believe it was because it was not really about law and rights -- and I pointed out that EFF is very selective about what they port online from offline -- notably, that old fashion walking the beat that police use to prevent and prosecute crime isn't allowed in their Unicorn Realm.
He also expressed concern about the very notion of "Internet freedom" -- perhaps Evgeny Morozov would join him there, since even the Internet as a social construct falls under Morozov's axe. I pointed out that we never talked about "typewriter freedom" or "telephone freedom" or "fax freedom" but saw these as tools embodying the freedom of expression. The only reason why the EFF gang needs to add on stuff to FoEx is because they want a different society achieved by revolutionary means disguised as "rights" -- and they've merely figured out like generations of radicals before them that cloaking things as rights and litigating them as if they were constitutionally-guaranteed or trying to legislate them are all great ways to disguise the fact that your revolution is antithetical to the rule of law -- which you won't apply to yourselves.
Quite a few people came up to me and said they liked my question and shared my concern. But some of these people merely worried while "the movement" was failing and how they could "get traction with the public".
Hmm, maybe by not fleeing to Russia, I suggested -- no one has ever explained why these comrades couldn't have started in Venezuela with the leaks -- or even Brazil, as we see how friendly the government is to the Greenwald enterprise now.
GUERILLA MANIFESTO
One young woman came up and said she liked my question, but I tried to explain to her that in fact she really didn't if she supported the gang. I mentioned that even the case Snowden mentioned of the "suspected hacker's girlfriend" was never explicated. I said I thought it was Quinn Norton, and explained how I thought she had lied about Swartz authorizing the guerilla manifesto to protect her boyfriend and that she didn't know the basics even how to get through questioning. And this, of course, is a function of her revolutionary approach, supporting revolutionary methods -- had Swartz and she pursued only lawful methods and respected the law and used non-coercive methods, then if they wound up in the hands of law-enforcement, they could get through questioning more honestly. This young woman said she knew Quinn and she knew Jake (Appelbaum), which is probably why she came up to me -- to gather intel to report back on them. Good! She neither confirmed or denied that the "suspected hacker's girlfriend" was Quinn.
I think they need public questioning about their lack of accountability. If Appelbaum really thinks he is going to be arrested -- and arrested unfairly -- he should return and face the music and exonerate himself with all those good lawyers at EFF and the ACLU who will stand behind him just like they stood behind Aaron Swartz, right?
Right?
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