Ken Roth has posted a piece on Politico advocating six key reforms for the NSA.
I resolutely reject all of them and demand that Ken Roth come up with REAL CASES of violations of civil and human rights in the #Snowden affair -- or be forever discredited as a lawfaring "progressive" using the rights issue for political struggle.
As I've endlessly repeated: human rights works by cases under the law.
I do not see a single, actual case in the volumes of material generated by Snowden's sabotage and defection; what I see are a lot of obfuscated hysterics that are designed to advance the anarchist cause against states.
Roth implies trust in the review board; it seems too hastily created and too small to inspire trust, especially with ideologue Cass Sunstein on it. No, the demands by Chris Soghoian and other hackers to the effect that one of their tribe should be allowed on this body should be rejected. The Snowden affair isn't about technology; it's about a war for power on the Internet between a liberal democratic state vulnerable to attack and a concerned international movement of anarchists now tactically allied with the Kremlin bent on bringing it to its kneeds. Emblematic of the problem is what one anonymous hacker replied on Twitter to my demand to keep hackers off the commission -- she thought the "nat" should come out of "natsec". Well, why not take out the "sec" too, while you're at it.
1. Fourth Amendment Should Not Apply to Metadata
The task here isn't to claim that the Internet supercedes old, outdated laws of 30 years ago "in a different technological era" but not to concede for a minute that real life is any different than cyber life, and that laws that apply normally and directly in the real world or "meatspace" somehow must morph and transform or be jetisoned in cyberspace.
They shouldn't.
Police have had computers, even without the Internet, for years and they used them; so did corporations, among other things, to connect phone numbers. It wasn't so time-consuming because the phone companies had automated systems even if they weren't online as today.
Cops walk the beat and scan homes and businesses and streets and cars with their eyes without requiring a search permit. They see patterns of when things are out of line and possibly signally trouble and patterns of stability. Their interactions are not intrusive in this "walking the beat" even as "human intelligence," and so it is hard to describe the numerous NSA scanners of signals intelligence are any more intrusive in looking at the beat of the world.
There's nothing wrong with reconstructing your entire direct and extended network of phone and email, which is know as the "social graph" in geek lingo. Why? Because not only is it no different than the cop on the beat, it is not looked at by organic human intelligence but only scanned by machines in routine surveillance. ONLY WHEN there is a match, is it looked at, and a warrant is required. As we've seen from the leaked documents, the NSA concedes that sometimes it "over-matches" -- there were 2766 cases, many of them accidents made *by machines*. But this was out of gadzillion transactions.
Unless Ken Roth or Glenn Greenwald come up with *a case* -- a real live case of someone mistakenly perused organically, by human eyes, and improperly put under surveillance in ways that harmed them, i.e. not accidently and without harm, I won't concede this point.
And that would not be LOVEINT, which is about employee ethics and job discipline, and not in the realm of rights, unless you can show some case that broke out of an interpersonal dispute and led to some actual civil rights abuse. Again, CASES.
It's not true that the social graph is "more revealing". Content is content. Metadata is metadata. Your 500 friends on Facebook or your 2000 followers on Twitter don't convey useful intelligence -- your messages do!
2. The U.S. Constitution does not extend overseas. The Fourth Amendment cannot be extended to a world in which hostile states and non-state actors are actively assaulting the US in cyberspace constantly, and succeeding in shocking ways. The Fourth Amendment also speaks to "unreasonable search and seizure" -- and mechanical scanning of metadata is not unreasonable nor a search in the human meaning of the term.
It's utterly false (and a good example of the creeping Siliconization of the human rights groups through stalking horses like GNI) to claim that data given to private companies is "more safe" and better protected under the Fourth Amendment than from NSA. These companies have all had privacy scandals, sometimes involving spills of emails and passwords by hackers. They all scrape copious amounts of data and know a shocking amount about users. Nothing controls them.
Laws like CISPA were rejected by the Google-driven lobbying group GNI and others and the human rights groups whipsawed on this. CISPA might well have avoided the sharpest edges of the Snowden damage by creating a legal framework for the USG and private companies to handle government requests in crime-fighting and anti-terrorism. But it was not to be because these companies refused to accept any regulation of their precious selves, and Obama preferred to rule by edict on this issue than submit to the rule of law. Snowden is their present for rejecting CISPA.
It's folly to claim that there are competitors of Facebook or Twitter like the Russian Vkontakte that are going to keep users' data more protected. Vkontakte instantly deleted the account of Andrei Sannikov and his 8000 followers the minute the Belarusian authorities arrested him after the opposition were crushed in the 2010 elections. There are numerous instances of arbitrary bans or deletions of VK and VK itself is under huge pressure from the government and its owner has been forced to sell some of his shares to pro-government companies.
Companies in the US may have to get used to the reality that they will face competition from new services that might provide First Amendment free-speech levels as Fourth Amendment non-search levels. But these companies will be extremely small, not supported as businesses but only things like Soros grants, and will fail to provide a climate most people want to socialize in -- that's already been proven in abundance by the existing history of social media. So let's not be so fast and loose about claiming a) private US companies will lose business over Snowden (I don't notice any big drop-off in Facebook accounts around the world) or that somehow they can become "better" in the extreme way imagined here.
3. Third, privacy is from other organic human eyes searching for intelligence information, not machines, and machines must not be treated as humans or treated as engines of legal force and legal personality. WHEN the information is pulled and read by humans THEN you can make a point about privacy and procedures under Fourth Amendment standards.
This point is extremely important to get right, because it's not only about privacy; it's about the "human" features given to machines that prematuredly and ominously give them rights-related agency they ought never to have. I thought Human Rights Watch was worried about killer robots! THIS is the place they have to be prevented from coming into being, by defining "privacy" as what humans look at, not machines looking for patterns. After all, it is only when the patterns are found that there is a case.
4. Fourth, regarding the FISA courts, I find nothing to change because I'm unpersuaded by extremist, lawfaring arguments around it. The FISA courts have had heavy oversight, development, fact-checking and so on by the government and Congress on a classified basis. And that's appropriate because to expose FISA to the public and make it "transparent" in the radical notion of Ken Roth and others is to open it up to hostile view and then manipulation.
As for the notion that changing judges from Republican to Democracy will change its nature, that lets us know how Ken Roth really views courts and the law -- as mere political instruments with decorations on top.
Precisely because of technical complexity AND the need to keep sensitive data from hostile eyes, the FISA courts are going to have to be reviewed internally by the government itself in appropriate checks and balances that keep the system of signals intelligence itself -- which is legitimate! -- intact.
It's hard to imagine any viable plan for change here that doesn't involve exposing the effort to fight crime and terrorism to criminals and terrorists. The police don't do that in normal cases. They don't announce on Facebook who their plainclothes officer are every day walking beats and blending in with everyone from homeless to Little League dads. They don't publish all their leads or investigations before they reach the stage of an indictment. Why would we behave any differently with FISA courts?
It isn't off base to compare these cases to the ordinary search warrant; adversarial hearings don't have to take place in public to be adversarial. If Ken Roth believes that's not possible, then let him come up with CASES of where the failure to expose sensitive information to Al Qaeda or other jihadists somehow harmed civil rights in a suspect's case.
5. Fifth, don't confuse coercive and anarchist hackers with whistleblowers - the have nothing in common. Real whistleblowers focus on cases of abuse, documented abuses they have personally witnessed. They don't make sweeping ideological claims or invoke hysterical hypotheticals cloaked with technical obfuscation as Edward Snowden has done. They don't make vast and inflated systems claimes without the numbers. Chelsea Manning never published the case that supposedly started her on the road to rebellion. Edward Snowden has never published a single concrete case of someone actually harmed by anything the NSA is doing, other than blanket ideological claims about "mass surveillance". Hey, if it's so mass, how come you got no CASES?
Whistleblowers follow procedures, and their work is about reform, not destruction. It is not about taking down the state, exposing one's country to harm, and playing into the hands of outright enemies (like Vladimir Putin). Protection of whistleblowers does not extend to protection of defectors and that has to be made abundantly clear.
It's not true that either Binney or Drake used these procedures in the way they have implied. Binney worked as a consultant for the same government he left supposedly on conscience grounds; Drake's story has not been corroborated by any independent source as whistleblowing about some valid system issue or CASES versus employee disputes that led to violation of his oath.
Whistleblowers can convince a skeptic public that they intended no harm and promoted the public interest by, you know, not defecting to China or Russia, for one, but also coming up with REAL CASES. None of them have done so.
HRW has repeatedly made very high-handed claims about whistleblowing and its supposed "lack of protections". This is rhetoric in op-ed pieces, but I don't see a single solid researched report on hrw.org that has actually examined the many vague and sometimes contradictory claims of these "whistleblowers" and actually run to ground their stories. I will believe it when I see it.
HRW takes the ideological position -- again without any CASES or any of its own serious reporting -- that the government is merely reacting over "embarassment." Somehow, I think revelation of US tactics to retaliate against Chinese hackers -- a huge problem for US national security and business! -- or revelation of Al Qaeda targets are not about "embarassment" but about serious harm. Human Rights Watch is not a good judge of this nor an honest broker and given the utter disdain for hard factual material on these issues cannot be trusted to be the arbiter of where the "balance" must be struck between classified and unclassified information.
Fifth, the reform commission is not in Congress, only have five people, and is not the answer to either damage control or reform, if needed (and I am not persuaded it is). This is not the era of the Church Committee when we had REAL CASES from Cointelpro of people harmed in various ways by various dirty tricks. NO CASES HAVE BEEN PRODUCED of anyone who has been wrongfully arrested; whose marriage has been deliberately broken up; whose reputation was damaged wrongfully in the press; who was stalked to prevent them from daily normal life, etc. Those were realities of the COINTELPRO of yesteryear which were rightfuly reported, exposed, and eliminated, but WE DON'T HAVE CASES of any sort, let along of that sort today from Snowden.
As for the "p" word, privacy can be difficult to define by law when its notions are very much on a sliding scale. Cynical geeks, particularly the ever-doxing Anonymous, think that if the information is on the Internet one way or another, by accident or design, by conscious desire or by services like Spokeo, it's fair game to concentrate it and use it to bully and harass people. Ken Roth has never, ever commented on that hugely frequent occurrence which a number of journalists and bloggers writing critically of hackers have personally experienced. So given *that* cynicism from the geek community, is it any wonder it may be present in the NSA? And we don't have an agreement -- even political, let alone legal -- as to whether metadata exposure is exposure of privacy or not.
Every anti-NSA geek who has argued this point has retorted to those like me saying that it is not, "Would you like to have all the phone numbers you've called and email addresses you've contacted put on the Internet"? But this is outrageously specious; the NSA doesn't put them on the Internet, it merely unconsciously scans them for matches to existing terrorists or criminals.
Ken Roth is making an overreach of privacy here that is itself an abuse of human rights because it makes criminals and terrorists unaccountable. Roth also leaves completely unnoticed the demand of the Crypto Party, Anonymous and many other hacker anarchists -- that they be allowed to strongly encrypt all their communications for ever beyond any government reach, even if they engage in child pornography, sale of drugs and other illegal contraband, and plotting violent overthrow of governments via Tor and Silent Circle and others. Why is that okay? What about our human rights protection from them?
Ken Roth has never been doxed or had his servers crashed or his family harassed by hackers as many of us have, or he would not be so casual about allowing the new regime of these neo-Bolsheviks to flourish.
I'd much rather see an ombudsman come into being at the NSA who might look at REAL CASES if they exist, but I'd rather see an officer of counterintelligence put to work with a well-resourced team to counter all the nonsense, lies, and hysteria put out by WikiLeaks in their conspiracy with the Kremlin to undermine a liberal democracy.
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