John Gilmore explains why spying for "the right reasons" is still wrong

After an NSA cryptographer took to ZDNet to defend his organization's lawless surveillance, EFF co-founder John Gilmore posted a long and thoughtful reply to the Cryptography mailing list (an absolute must-read, these days), in which he explains why the idea that spies should be able to spy on everyone, so long as they do so for the right reasons, is a bad idea. It's a high-level version of an argument a lot of us are having these days, so it's worth reading carefully. The tl;dr is "There will always be 'emergencies', always 'crises', always 'evildoers", always 'opportunities', that would be relieved 'if we could just do X that wasn't allowed until now'."

Having watched the Drug War over the last 50 years, NSA for 30 years, and TSA/DHS over the last decade, I have zero faith that NSA can collect intimite data about every person in America and on the planet, and then never use that data for any purpose that is counter to the interest of the people surveilled. There will always be "emergencies", always "crises", always "evildoers", always "opportunities", that would be relieved "if we could just do X that wasn't allowed until now". So what if general warrants are explicitly forbidden? And if searching people without cause is prohibited? We could catch two alleged terrorists -- or a few thousand people with sexual images -- or 750,000 pot smokers -- or 400,000 hard-working Mexican migrants -- every year, if we just use tricky legalisms to ignore those pesky rules. So the government does ignore them. Will you or your loved ones fall into the next witchhunt? Our largest city was just found guilty of forcibly stopping and physically searching hundreds of thousands of black and latino people without cause for a decade -- a racist program defended both before and after the verdict by the Mayor, the Police Commission, the City Council, and state legislators. NSA has secretly been doing warrantless, suspicionless, non-physical searches on every American with a phone for a decade, all using secret gerrymandered catch-22 loopholes in the published constitution and laws, defended before and after by the President, the Congress and all the courts. Make rules for NSA? We already have published rules for NSA and it doesn't follow them today!

So Mr Barkan moves on to why NSA would never work against the citizens. The US imprisons more people than any country on earth, and murders far more than most, but it's all OK because those poor, overworked, rule-bound government employees who are doing it are "defending freedom". Bullshit they are! Somehow scores of countries have found freedom without descending to this level of lawlessness and repression. NSA cannot operate outside of this context; rules that might work in a hypothetical honest and free government, will not work in the corrupt and lawless government that we have in the United States.

NSA employees are accountable for following the rules, Mr. Barkan? Don't make me laugh. There's a word for it: impunity. EFF has diligently pursued NSA in court for most of a decade, and has still gotten no court to even consider the question "is what NSA did legal?" Other agencies like DoJ and HHS regularly retain big powers and budgets by officially lying about whether marijuana has any medical uses, rather than following the statutes, despite millions of Americans who use it on the advice of their doctor. None of these officials lose their jobs. Find me a senior federal official anywhere who has ever lost their job over major malfeasance like wiretapping, torture, kidnapping, indefinite imprisonment, assassination, or malicious use of power -- let alone been prosecuted or imprisoned for it. Innocent citizens go to prison all the time, from neighborhood blacks to medical marijuana gardeners to Tommy Chong and Martha Stewart -- high officials never.

[Cryptography] Gilmore response to NSA mathematician's "make rules for NSA" appeal