Lawless Surveillance, Warrantless Rationales (a critique of Obama continuation of Bush policies)

Over at The American Constitution Society for Law and Policy website, Electronic Frontier Foundation Legal Director Cindy Cohn writes about the so-called Presidential Surveillance Program, the "still-shadowy set of programs that spy on Americans in America without any probable cause or warrant." The EFF, as regular BB readers know, has fought this program for several years now -- in 2006, it filed suit against AT&T for providing the NSA with direct access to its database of communications records. Snip from Cohn's essay:

While the details are unknown, credible evidence indicates that billions of everyday communications of ordinary Americans are swept up by government computers and run through a process that includes both data-mining and review of content, to try to figure out whether any of us were involved in illegal or terrorist-related activity. That means that even the most personal and private of our electronic communications - between doctors and patients, between husbands and wives, or between children and parents - are subject to review by computer algorithms programmed by government bureaucrats or by the bureaucrats themselves.

It's a bizarre turn of events, these unwarranted general searches. Our country was founded on the rejection of "general warrants" - pieces of paper that gave the Executive (then the King) unchecked power to search colonial Americans without cause. The Fourth Amendment was adopted in part to stop these "hated writs" and to make sure that searches of the papers of Americans required a probable cause showing to a court. The warrantless surveillance program returns us to the policies of King George III only with a digital boost. It subjects a huge number our daily digital papers to threshold surveillance, then adding subsequent, more intrusive warrantless surveillance if faceless government computers and bureaucrats determine that our communications or communications patterns merit further scrutiny.

Both Yoo and Hayden draw from a similar bag of tricks to defend the surveillance programs, including claims that there was a "gap" between our domestic surveillance and our foreign intelligence surveillance.

Lawless Surveillance, Warrantless Rationales (via Rebecca McKinnon)

• [Roku]

  Noen/14:

  It’s interesting that the fundamental argument put forth for left-wing statist control, such as yours, is the same argument put forth by the religious right: People are intrinsically evil and not to be trusted.

  Both are under the same delusion as you: that the people who are attracted to running and maintaining a statist power structure will be less evil and more trustworthy than the rest of us, who find such structures repugnant. History proves this wrong, over and over again, but it’s a very seductive belief: if only the people like me could tell everyone else what to do, things would be better.

  This is an arrogant and nihilistic belief, whether it comes from left-wing or right-wing authoritarianism. I prefer to take a more positive view of life and humanity.

• [Cicada]

  @21- Generally speaking the tax for not voting is literally being taxed. Pluck the geese that squawk the least and all.
  See also: AARP and why people over 55 hardly ever get screwed by the government.

  @24- The problem is that it’s rare to ever successfully link the personal wellbeing of the elected official with the wellbeing of the state. Generally when this occurs, it’s because someone’s decided it’s revolution time and that’s an awful lot of trouble.
  Possibly financial incentives would be good- “Oops, ran up a trillion dollar deficit…I’m afraid you’ll be taking some of that personally when you leave office” or “Good job– unemployment’s down. Have a bonus.”
  Basically, you’d need to make the politicians’ rapacious self-interest work _for_ the country.

• [xstek99]

  Why don’t we all self identify ourselves…I have in the past advocated on twitter the intentional splashdown of the lockerbie bombers plane on way from scotland to libya, and have invited qaddafi to stay at my hunting lodge in burnet, texas, since they don’t want him in new jersey. last time i was flying i noticed a crew of terrorists disguised as baggage handlers down on the ramp messing with the underneath of my airplane, nobody cares…when everyone is in the database, it’s not much of a database is it?

• [elbowling]

  One can blame both parties simultaneously and not leaders Bush and later a Obama in separate chains of policy decision making. The purple state speech sounded super, but unfortunately purple is made of the same combination of red and blue we’ve always seen, and the only way to protect our civil liberties is to blend in another color. Green anyone?

• [Red Leatherman]

  Bush policies? The first time words said in the privacy of my home were quoted verbatim by law enforcement. Was back in ’98. no warrants or legal line taps no authorized surveillance in play there. Just bored police in a very small community with nothing better to do but look for something to do.
  I learned what kind of world I live in that day.
  And I’m not saying how I overheard them quoting me.

• [Takuan]

  http://www.reuters.com/article/technologyNews/idUSTRE57R22620090828

• [ab3a]

  This is not a liberal or a conservative thing. It’s all about power.

  Any excuse to grab authority over a group or resource is rarely ever passed up. And once given it is rarely ever released voluntarily.

  Bush had a golden opportunity to grab additional presidential powers. He did it. Obama, despite his very different politics, sees the value of this authority and isn’t that eager to let go of it.

  Welcome to the real study of politics.

• [jgs]

  @Noen #22 — OK. But:

  But advances in technology tip the balance in favor of smaller groups and that is I think a real danger.

  And what if one of those smaller groups has managed to capture, say, the legislative branch of government? In that case, the more unlimited the power exercised by that branch, the deeper the trouble we’re in.

  If only it were just a thought experiment…

• [jgs]

  #29 — You think we should return to the days of “Gentlemen do not read each other’s mail”?

  Sounds great. Really. You first. Make sure you bring the French along.

• [johnphantom]

  Obama may lose my vote over things like this, which means I will go back to not voting.

  I voted for the first time in my 40 years of life in 2008, because of the raping that the Bush/neocons have been doing to this great country.

  /I am sad, very sad

• [Anonymous]

  Boo – bloody -hoo, Americans are in no position to complain. It’s well known those same programs spy on non-US citizens without qualms and have done for many years; with a number of cases suggesting the information is used to influence trade and commercial negotiations even with allied democracies.
  All of a sudden, when you realise that they do it to you too, it’s a terrible thing! That’s what people around the world think of when they call the US hypocritical.
  (But if you want to get off your asses and stop them doing this, I’d be happy to support you)

• [noen]

  Yeah, not participating in democracy will get you everything you fear johnphantom. You only just started to give a fuck in 2008? That attitude is exactly why the Bush mafia family got where it did in the first place.

  –

  There is the other side to this which needs to be kept in mind. In a world of increasing population density there is an increased need for security. Advances in communication technology means that criminals are better able to plan and execute their crimes. Advances in other areas give individuals a power to rival that of the state. With a little bit of effort a dedicated group can bring a powerful nation to it’s knees.

  Civilization is relatively fragile. It’s continued functioning depends on it’s various antagonisms being subordinate to the ruling authority. Social and technological advances tend to grant more power to societies’ antagonists (white supremacists, the KKK, anarchists, communists ect.) and thereby threaten the stability of society as a whole.

  And it would be a very bad thing if our civilization were to collapse.

• [Cicada]

  Meant as a literal question, not as snark– has anyone ever convinced a government to give up detection or enforcement powers by means other than revolution?

• [Takuan]

  I see this again and again. Voting is not picking what you want. We all learn this as children: you can’t always get what you want. Voting is saying what you WILL NOT accept. Meaning if you don’t use your franchise to fight the clear evil by casting a ballot for something, even ANYTHING, else: you do not understand democracy. Or real life.

  Bad people use this. Foolish people are used by it.

  In the case of America: inability to generate more than two parties means an eventual failed state.

• [Anonymous]

  If P2P “making available” is illegal for the masses then it follows that making available by the TELCOS is also conspiracy to illegal search and seizure per the fourth amendment and subject to civil damages if not criminal penalties.

• [Anonymous]

  watch out, now they are onto you!

• [jakx92]

  Of course. Governments give up power all the time. Like when… Uh…

• [Jonathan]

  Rest assured that that the Obama administration has plenty of experience on tap to spin this one. David Axelrod, Obama’s most prominent political advisor, previously headed an astroturfing firm that worked on “voter-persuasion” for AT&T.

• [Anonymous]

  Here’s a novel idea: Fix the economy so people can have jobs so there’s little incentive for doing “bad things” so there’s no need for “pre-crime” tactics to make up for inability to cope with Actual crimes?

• [ab3a]

  “Men and nations behave wisely once they have exhausted all the other alternatives.” –Abba Eban

  That pretty much describes the politics of this age.

• [Blue]

  Governments reduce regulations on corporations all the time, Cicada. Like the financial services industry and banking: to give them more freedom. This is usually done by lobbying and … other incentives.

  Is that what you mean?

• [jgs]

  @Noen #14 — ah, the old “we had to destroy the Constitution in order to save it” argument. The question is not whether civilization will be torn down by the barbarians unless The Authorities have certain wiretap powers. The question is whether said wiretap powers are legal or constitutional. Evidence indicates they are not. If they are really so breathlessly, melodramatically vital, let the law be changed, or if need be the Constitution amended. If the law and Constitution are simply disregarded by the government for convenience’ sake then we arguably have already lost the civilization you say said such powers are needed to protect. Guess you proved your point about it being relatively fragile, anyway.

  Or maybe you don’t view a healthy system of laws as an essential part of civilization?

• [johnphantom]

  Noen, I do not see the point in voting when it means nothing.

• [mdh]

  I believe the years 2001 – 2008 provide ample evidence that we are not to be trusted.

• [Ito Kagehisa]

  JohnPhantom, you may believe voting means nothing, but you are flat out wrong.

  When you don’t visit the polling place, you cast a vote for the status quo, you send an explicit message of acceptance and support for the current administration and its policies. Your failure to vote is entered into a spreadsheet and your viewpoint is registered as “everything’s OK and peachy for John Phantom, he wants more of the same”.

  I’m not kidding about this, and it’s not a figure of speech. This is how it works in the USA. When you don’t vote, you endorse the people in power, at least as far as the lawmakers and other elected officials are concerned. If you can’t be bothered to vote, they sincerely believe you are happy with them.

  Even if every voting booth in the country is rigged against you (and I assure you, mine is not; I watch it like a hawk and I thoroughly understand the technology) you can still vote for the party in power – by not voting.

• [Cicada]

  @5- Exactly the sort of answer I was wondering about, yes. Hadn’t thought of that angle.

  Now how much do civil liberties groups shell out a year in campaign contributions?
  (I presume they mainly think that being right has some persuasive weight…which it would if you could buy a TV spot with fifty feet of moral high ground)

• [Takuan]

  I honestly think refusal to participate in democracy by voting really ought to cost that person something. Either loss or compromise of citizenship, or just plain money. Consider it a fair tax on those that can’t be bothered and want others to think for them.

• [noen]

  “The question is not whether civilization will be torn down by the barbarians unless The Authorities have certain wiretap powers. The question is whether said wiretap powers are legal or constitutional.”

  Yes I understand that. Please bear in mind what I said was “on the other hand”. There is always another side to things I thought it important to spell out a few. It also help spur on discussion.

  The larger problem as I see it is that we are the barbarians. Society has always been made up of conflicting subgroups who would be at each others throats if it weren’t for the power and authority of the state. But advances in technology tip the balance in favor of smaller groups and that is I think a real danger.

  I’m hardly the first to make that observation either. Many sci-fi authors have felt that increases in technology would also demand a more regimented society. If I were an alien and wanted to destroy humanity all I’d have to do is hand out a bunch of Star Trek like phasers. You’d all be dead within a year.

  “Or maybe you don’t view a healthy system of laws as an essential part of civilization?”

  I do, I am mostly playing devil’s advocate.

• [Thebes]

  “God forbid we should ever be twenty years without without such a rebellion” – Thomas Jefferson

  Now we’ve been far longer, and look where its gotten us. Can’t say much more or else the Department of Precrime might indefinitely detain me for “national security”.

• [Anonymous]

  You people think this is a continuation of Bush policies? Get real! The government has been doing this sort of thing since the 40′s

• [LeavingHalfway]

  #5 Annon:

  It’s really far too late for that.

• [Anonymous]

  I rather like xstek99′s idea…

  You’ll never get many people to do it, but I think there are enough hard core civil liberties types that would go for the following plan:

  After every phone conversation, simply start spouting out code words that are likely to be flagged. Same with IMs, tweets, etc. On certain e-mails (between friends – anyone not in on the plan would think you are nuts probably).

  If even a million people, or maybe just hundreds of thousands did this, on a regular basis, their systems would have to crash wouldn’t they? Every flagged transmission must take human interpretation and they simply don’t have the manpower for that, even with their fancy surveillance age gadgetry.

  Anyone up for it? Remember, this requires dedication and a small likelihood you’ll encounter some miffed federal agents at some point (though they can’t legally do anything to you).