John Kerry, meet Harry Potter

lightning-bolt-i12We had several wand-wielding Harry Potters at our door last night, but fistfuls of treats protected us from their magic powers. Apparently John Kerry is a fellow Potterite.

According to reports today in the Guardian, the Independent, and elsewhere, Secretary of State Kerry has answered the international firestorm about NSA’s global surveillance with two comments:

  • “Some of these actions have reached too far.”
  • “Innocent people are not being abused in this process.”

Reached too far? Gee, ya think? Whether it’s trillions of records on millions of people or creepily listening in on Angela Merkel’s personal phone calls, yeah, the NSA has gone too far.

But about those “innocent people”? This is where the wand comes in. Across the country and around the world, we deploy courts, judges, juries, prosecutors, defense counsel, and enormous amounts of time, money, and procedures to separate the innocent from the guilty. And yet Kerry has bought into the NSA story that they target only the guilty. How do they know?

Magic is the only explanation. Somewhere in that vast Utah NSA surveillance center is a room full of wands.


Put that in your pipe

This morning I read a post by Chris Blattman called “You want to know why revolutions happen? Because little by little by little things get worse and worse.” One of the comments precisely captured my reaction: “Quite easily the most powerful thing I have read in some time.”

Blattman says his post came from a “miscellaneous comment in a reddit thread on government eavesdropping”. The writer doesn’t tell us exactly where he lives, but says, “I live in a country generally assumed to be a dictatorship. One of the Arab spring countries.” The full article is long as these things go, but please do read it. This excerpt should whet your appetite:

You want to know why revolutions happen? Because little by little by little things get worse and worse. But this thing that is happening now is big. This is the key ingredient. This allows them to know everything they need to know to accomplish the above. The fact that they are doing it is proof that they are the sort of people who might use it in the way I described. In the country I live in, they also claimed it was for the safety of the people. Same in Soviet Russia. Same in East Germany. In fact, that is always the excuse that is used to surveil everyone. But it has never ONCE proven to be the reality.

Maybe Obama won’t do it. Maybe the next guy won’t, or the one after him. Maybe this story isn’t about you. Maybe it happens 10 or 20 years from now, when a big war is happening, or after another big attack. Maybe it’s about your daughter or your son. We just don’t know yet. But what we do know is that right now, in this moment we have a choice. Are we okay with this, or not? Do we want this power to exist, or not?

While we’re on the subject, let me commend two other articles to your attention, both opinion pieces from the New York Times. The first was written by Malte Spitz, a member of the German Green Party’s executive committee who’s running for the Bundestag in the upcoming national election. He calls his essay “Germans Loved Obama. Now We Don’t Trust Him.” and in it says this:

Given our history, we Germans are not willing to trade in our liberty for potentially better security. Germans have experienced firsthand what happens when the government knows too much about someone. In the past 80 years, Germans have felt the betrayal of neighbors who informed for the Gestapo and the fear that best friends might be potential informants for the Stasi. Homes were tapped. Millions were monitored.

Although these two dictatorships, Nazi and Communist, are gone and we now live in a unified and stable democracy, we have not forgotten what happens when secret police or intelligence agencies disregard privacy. It is an integral part of our history and gives young and old alike a critical perspective on state surveillance systems.

Meanwhile, we have a piece yesterday on Diane Feinstein from Jeremy W. Peters called “Feinstein’s Support for N.S.A. Defies Liberal Critics and Repute”. Feinstein is the Chair of the Senate Intelligence Committee and, as Peters says, “To her critics, she is just another victim of Stockholm syndrome on the Congressional Intelligence Committees: an enabler of government overreach who has been intoxicated by the privilege of knowing the deepest-held state secrets.” An apt description, it seems to me, driven home by this statement:

I feel I have an obligation to do everything I can to keep this country safe. So put that in your pipe and smoke it.

Little by little by little.


Police-State Mathematics

Today on Face the Nation, former CIA and National Security Agency Director Michael Hayden was talking to Bob Schieffer about the most recent round of surveillance revelations. Schieffer said it sounded like Hayden thought maybe the government should go public with at least some of the information it’s been keeping secret. Hayden’s reply:

Here’s how I do the math. I’m willing to shave points off of my operational effectiveness in order to make the American people a bit more comfortable about what it is that we’re doing.

Talk about lowering expectations! As we breathlessly wait for President Obama’s “debate” and “dialog” about security versus privacy, keep in mind that the intelligence community will be grudgingly willing to allow the public to be “a bit more comfortable”.

We deserve better.


On our wonderfully undemocratic Constitution

ben-franklin-on-liberty-and-security-05182009Since the Boston Marathon bombings, we’ve seen a succession of polls quantifying the public’s willingness to trade freedom for security. Depending on what reports you read, our neighbors would accept everything from ubiquitous government surveillance to torture if it meant avoiding the next attack.

Thanks to the foresight of the Founders, though, our civil rights don’t depend on simple majority votes. They’re embedded in the Constitution, codified with phrases like “Congress shall make no law” and “no person shall be held” and “the accused shall enjoy the right”. Escape clauses along the lines of “as long as Congress thinks it’s a good idea” or “unless a poll says the public feels otherwise” are conspicuously absent.

To the authors of our liberties, “witch hunt” was not a metaphor. They knew what fear could do to an otherwise rational community and designed what they hoped would be a terror-resistant superstructure for a free nation. Like Ulysses bound to the mast, they constrained themselves and their posterity from easily succumbing to the siren call of a risk-free life watched over by an all-powerful State.

And the sirens are out in full force. Michael Bloomberg says, “Our laws and our interpretation of the Constitution have to change.” Circuit Judge Richard Posner predicted, “The Court can and doubtless will adjust the balance between privacy and security to reflect the increase in long-run threats to the lives of Americans.” These voices provide the rationalization for the FBI as it rewrites the Fifth Amendment and soften us up for the revelation of routine government monitoring of all phone calls. We’ve lost sight of what MIT’s Jeff Schiller told Wired a full two years before the attacks of 9/11:

Police work is hard. It’s supposed to be hard. Where it’s easy we call it a police state.

Rather than Bloomberg and Posner, let us listen instead to people like security expert Bruce Schneier:

Terrorism isn’t primarily a crime against people or property. It’s a crime against our minds, using the deaths of innocents and destruction of property as accomplices. When we react from fear, when we change our laws and policies to make our country less open, the terrorists succeed, even if their attacks fail. But when we refuse to be terrorized, when we’re indomitable in the face of terror, the terrorists fail, even if their attacks succeed.


Pat pirouettes on privacy (or maybe not)

[See below for Pat Leahy’s response to the CNET article cited here and for the follow-up CNET article.]

Only hours after the Republican Study Committee retracted a highly praised report on Copyright reform, Vermont Senator Pat Leahy has done them one better. He has taken a bill intended to limit government surveillance of your Internet activity and morphed it into one that gives you even less online privacy than you have now.

Consider these two headlines:

The first one appeared yesterday in The St. Albans Messenger (“Vermont’s oldest evening newspaper”) and begins:

A bill to protect privacy online written by U.S. Sen. Patrick Leahy, D-Vt., will be taken up by the Senate Judiciary Committee when Congress returns from recess next week. The bill would require law enforcement to obtain a warrant, and thus show probable cause, before gaining access to a person’s email, Facebook messages or other online communications.

The second, reported today by Declan McCullagh in CNET News, provides quite a different version:

A Senate proposal touted as protecting Americans’ e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law. CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans’ e-mail, is scheduled for next week.

McCullagh includes text of the revised bill, which grants warrantless surveillance privileges to any “independent regulatory agency” defined in federal code. Here’s that section of code:

Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing Finance Agency, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Regulatory Commission, the Securities and Exchange Commission, the Bureau of Consumer Financial Protection, the Office of Financial Research, Office of the Comptroller of the Currency, and any other similar agency designated by statute as a Federal independent regulatory agency or commission.

The Federal Maritime Commission? Mine Enforcement Safety and Health? The Postal Regulatory Commission? OSHA?

Apparently Washington isn’t as gridlocked as we’ve heard, at least not when a sufficiently powerful force weighs in. In this case, the powerful force is Big Brother, who’s unhappy about limits on his ability to spy on the rest of the family.

Update from the ever-vigilant Mike Masnick over at Techdirt:

There’s some debate over how serious this proposal was. A new report claims that this amendment wasn’t likely to be seriously considered, even though it does exist. Declan McCullagh is standing by his story, and saying that the claim that this amendment won’t be seriously considered is in response to the public outcry about it.

And here is Pat Leahy’s response:

The rumors about warrant exceptions being added to ECPA are incorrect. Many have come forward with ideas for discussion before markup resumes on my bill to strengthen privacy protections under ECPA. As normally happens in the legislative process, these ideas are being circulated for discussion. One of them, having to do with a warrant exception, is one that I have not supported and do not support. The whole thrust of my bill is to remedy the erosion of the public’s privacy rights under the rapid advances of technology that we have seen since ECPA was first enacted thirty years ago. In particular, my proposal would require search warrants for government access to email stored by third-party service providers – something that of course was not contemplated three decades ago.

And perhaps this is the last word, from Declan McCullagh:

Leahy scuttles his warrantless e-mail surveillance bill

After public criticism of proposal that lets government agencies warrantlessly access Americans’ e-mail, Sen. Patrick Leahy says he will “not support” such an idea at next week’s vote.

The vote is still scheduled for next week. Let’s see what the bill says and who votes how.


Some good news on privacy from the Green Mountain State

Back in March, I used Vermont’s Prescription Monitoring System (VPMS) as an example of a growing privacy problem: People turn over sensitive information to a government agency or research group under solemn assurances of confidentiality, only to find those assurances subsequently repealed or ignored. Two of my other examples were “sealed” adoption records which were later unsealed, and the Belfast Project‘s oral histories, which were demanded from Boston College by the British government in defiance of participant agreements. In all three cases, not only does the rule change represent an unconscionable and unethical breach of trust, but it’s clear that the information would not have been provided in the first place without the guarantee of privacy.

With the end this past weekend of Vermont’s legislative session, I’m pleased to report that, at least in one case, the rules have not changed: It will still require a search warrant for police to access citizens’ prescription drug records in Vermont. Despite heavy pressure from the Governor and from law-enforcement officials, the provisions written into the law in 2006 will remain in place.

Doctors provide their patients’ private data to VPMS in order to promote public health and for other medical purposes, not to support investigation or prosecution by the police. As emphasized by Rep. Ann Pugh, Chair of the House Human Services Committee, “This is a health care tool. It was created as a health care tool, not as an investigative tool.” She thus echoes Rep. Anne Donahue, who remembers the day 6 years ago when she was called upon “to vote on something I was more scared about than anything we’ve ever done. We were emphatic that this be used only as a tool for public health — that we never, ever allow this deeply personal data to be subject to review by law enforcement agencies.” In the words of Allen Gilbert of the Vermont ACLU:

This isn’t about prescription drugs, this is about the government collecting data and promising the information will be kept private and when the government promises to protect our private information in an area as sensitive as medical information, I think it’s reasonable that citizens should be able to trust that government will keep its word.

As with any data, a court can issue a warrant for release of VPMS records under appropriate showing by the government of probable cause. That’s why the Fourth Amendment to the Constitution exists, to assure the public that the government will violate their privacy in only the most carefully constrained circumstances. And so while Vermont Governor Peter Shumlin castigated the legislature’s decision as “irresponsible”, Rep. Pugh said, “We were just not willing to sacrifice Vermonters’ privacy. Law enforcement is really familiar with getting warrants. They’ve been doing that for 200 years.”

And now for at least one more.