Sunday, August 04, 2013

The Future of Surveillance, and How to Stop It

August 4, 2013, 3:30 p.m.

This series includes: "Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

The speech was videotaped by Aleksey Gurtovoy, embedded in speech text below, and by Julie Spencer of Iowa City's Public Access Television (PATV). An edited version was scheduled to be cablecast on the Iowa City PATV channel, 6:30 p.m., August 24, 31, and September 7, and at 12:00 noon on August 28, and September 4 and 11. That version is available on YouTube as "NSA Restore the Fourth Rally in Iowa City August 4, 2013," Newsline Iowa City, and here:

Excerpts appeared within local TV station KGAN-TV2 CBS' newscast of the event, "Anti-Spying Rally Targets NSA," August 4, 2013.

The Future of Surveillance, and How to Stop It
Text of Nicholas Johnson's Remarks
1984 Day: Restore the Fourth's Nationwide Action Against the NSA’s Unconstitutional Surveillance
Ped Mall, Iowa City, Iowa
August 4, 2013, 12:00-2:00 p.m.

It has been 64 years since George Orwell’s classic novel, 1984, was published in 1949.

“George Orwell was an optimist,” once a humorous line, is today a terrifying reality.

As a law professor, I’m used to speaking for entire semesters at a time. Aleksey Gurtovoy has requested a short course of 20 minutes.

That’s a tough assignment, given the legal and policy issues regarding the NSA’s spying.

Let’s start with a story: how the Fourth Amendment came to be.

[Photo and video credit: Aleksey Gurtovoy.]

Once upon a time, in a land far away, a sheriff broke into the home of a Mr. Semayne.

It was 1604, and the British judge told the King that was a no-no. The court’s opinion declared, “The house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose” – more commonly repeated as, “an Englishman’s home is his castle.”

In a later case, Entick v. Carrington, the British court examined the search warrant and declared it overly broad, because it authorized the taking of all of Entick's papers, not just those involving criminality. Moreover, it said, the warrant lacked probable cause for any search.

Those principles found their way into the Fourth Amendment to our Constitution, finally ratified in 1791. It provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Clearly, early British law and our Fourth Amendment contemplate our right to a zone of privacy. It is not an absolute right. But it can only be breached by the government if the search is "reasonable," supported by "probable cause" to believe that we have engaged in wrongdoing, and that what is being sought can be "particularly described."

So what was the problem?

Before we had a Constitution, the King considered colonists to be taxpaying British subjects. His tax officials, sent to collect from American merchants what British law said they owed, wanted to be able to look in all homes and businesses for smuggled goods.

To legalize these searches, in 1660 the English Parliament authorized the use of "writs of assistance" -- "assistance" in the sense of a sheriff, say, assisting the customs officials. The net effect was to eliminate the need for a search warrant, thus making the writ of assistance a "general search warrant."

These general search warrants authorized the British to search whomever they wished, wherever they wished, whenever they wished, for whatever they wished, with or without any reasonable basis for suspicion of wrongdoing. No specific search warrant. No identified person or place. No "oath or affirmation" of the "probable cause."

Are you beginning to connect the dots?

You see, the NSA’s surveillance of the American people today is the electronic equivalent of one of the grievances that drove our founding fathers to the revolution we commemorate every July 4th – those British “general search warrants.”

The NSA is engaged in the unreasonable search of all of us, without even a suspicion we have done anything wrong, let alone probable cause, without specifying where they will look or what they are looking for. And so it is that, 224 years later, an ever-increasing number of Americans – now nearly 50% -- again believe that government surveillance has gone too far, notwithstanding the threats of terrorism.

It has proven very difficult for the public, media – and even our elected officials – to find out basic facts about NSA surveillance.

As New Mexico Senator Tom Udall has observed, “It’s very, very difficult, I think, to have a transparent debate about secret programs, approved by a secret court, issuing secret court orders, based on secret interpretations of the law.”

Our task is made even more difficult by intelligence officials’ willingness to flat out lie. When asked by Senator Ron Wyden whether the government was collecting the meta data from citizens’ phone calls, Director of National Intelligence James Clapper responded simply, “No, sir.” Others, with scarcely more subtlety, speak in terms deliberately nuanced to deceive the public and media.

Measured by any rational benefit-cost analysis, what the government is doing to American citizens in the name of protecting us from terrorism is wildly overreaching. Since 9/11 the overwhelming percentage of deaths from terrorists has been inflicted on our uninvited military personnel in foreign countries, where our presence has both increased recruitment of terrorists abroad – while saving terrorists the cost of airfare to the U.S.

Our intelligence services’ spokespersons are asked to identify instances in which surveillance of Americans was the sole contributor to preventing violence. They struggle, dissemble, mention something between one and 13 possible instances – for which they refuse to provide details.

Moreover, the programs aren’t always effective. Alerted to the Boston bombers, they failed to connect the dots.

Even if you don’t care about personal privacy, consider the money and personnel devoted to surveillance of American citizens. Those costs are clearly grossly disproportionate to any benefits – especially when compared with other programs.

If the government was truly concerned about the preventable death of Americans, the trillions spent fighting wars abroad and conducting surveillance at home could have saved far more lives if spent on other programs. There are over 400,000 deaths a year related to smoking; 32,000 from automobile accidents; 30,000 gun deaths. Americans are 271 times more likely to die from workplace accidents than terrorist attacks. Preventable injury, disease, illness and death include such factors as obesity, lack of exercise, poor nutrition, alcohol and other drug abuse, and the failure to use seat belts and motorcycle helmets. Adequate funding of best-practices public health programs could save far more lives that surveillance ever will.

We will never totally eliminate those deaths. Nor will we totally eliminate all terrorist attacks – no matter how much surveillance we have -- whether carried out by American citizens such as Timothy McVeigh in Oklahoma City, or unsuccessfully attempted by Najibullah Zazi against the New York City subway.

Given the grossly disproportionate and ineffective expenditure on surveillance, rationalized as a life-saving effort, one need not be paranoid to wonder what the government’s real motives might be for spying on us.

It may be true there is high global risk this weekend of a massive al Qaeda attack. But it’s not unreasonable to wonder if the warnings are also efforts to support NSA surveillance.

Wolfgang Schmidt, a one-time lieutenant colonel in the former East German secret police and spy agency Stasi, has said of our NSA, "'You know, for us, this would have been a dream come true. . . . So much information, on so many people.'” [Matthew Schofield, "Memories of Stasi color Germans’ view of U.S. surveillance programs," McClatchy Washington Bureau, June 26, 2013.]

The Stasi's wiretapping ability went from one wiretap to 40 at a time. Compare Stasi’s efforts with the NSA. Watch Laura Poitras' "The Program," and read the alarming, Peter Maass, "How Laura Poitras Helped Snowden Spill His Secrets," in next Sunday's NYTimes Magazine, August 18, 2013, p. MM22.

The NSA has gone from a constitutional, specific search warrant for one person to the electronic equivalent of the old British general search warrant. Because the NSA has the technology that makes it possible, it wants to be able to search every American simultaneously and retain what they find.

The government tries to reassure us everything it is doing is "legal." That's not so clear. President Obama is both relying on a legal opinion interpreting the Patriot Act – but one so secret he can’t share what it says – and, according to this morning’s Guardian, refusing to permit the FISA court’s release of an opinion finding some NSA surveillance unconstitutional. Moreover, many who voted for the Act believe they did not authorize what the NSA is doing. [Glenn Greenwald, “Members of Congress denied access to basic information about NSA; Documents provided by two House members demonstrate how they are blocked from exercising any oversight over domestic surveillance,” The Guardian, August 4, 2013.]

But assume it is "legal." As I sometimes say of corporate abuses, “The problem is not so much that corporations violate the law as that they write the law.”

The issue is not whether an act was passed by Congress. The issue is whether it, and what is done in its name, is constitutional. And even if constitutional, is it right, is it moral, is it how we want to live? As Dr. Martin Luther King has reminded us, "We should never forget that everything Adolf Hitler did in Germany was 'legal' . . .. It was 'illegal' to aid and comfort a Jew in Hitler's Germany." [Dr. Martin Luther King, "Letter from Birmingham Jail," April 16, 1963.] Presumably what the Stasi did was also "legal."

Consider the potential for abuse from citizen surveillance justified as an anti-terrorism program.
• President Nixon authorized a burglary of Democratic National Committee headquarters. Can you imagine the value to a presidential political campaign of access to the phone calls and emails of an opponent?

• When surveillance was called Echelon, Europeans complained NSA was doing industrial espionage for American corporations, resulting in Airbus losing contracts to Boeing.

• What if, as the New York Times reports this morning, terrorist surveillance reveals a planned crime by a non-terrorist, as in the fictional TV show, “Person of Interest”? How can the constitutional rights of the discovered potential criminal be protected? [Eric Lichtblau and Michael S. Schmidt, “Other Agencies Clamor for Data N.S.A. Compiles; Concerns Over Privacy; Tension Abut Sharing in Cases Not Tied to National Security,” New York Times, August 4, 2013, p. A1.]
When I wrote this particular "potential for abuse" my only concern was that what I thought to be kind of a fictional insert for a revised edition of 1984 would provoke my critics into charging me with exaggeration and extremism: "Oh, Nick, now you've gone too far; you know our government would never do that!"

Little did I then imagine that my government was already doing it:

"Reuters has uncovered previously unreported details about a separate program, run by the U.S. Drug Enforcement Administration, that extends well beyond intelligence gathering. Its use, legal experts say, raises fundamental questions about whether the government is concealing information used to investigate and help build criminal cases against American citizens.

The DEA program is run by a secretive unit called the Special Operations Division, or SOD. . . .

The SOD forwards tips gleaned from NSA intercepts . . . to federal agents and local law enforcement officers.

John Shiffman, "How DEA program differs from recent NSA revelations," Reuters, August 5, 2013.
• How can natural curiosity be eliminated – as when UI hospital personal, curious as to the condition of Hawkeye football players with rhabdo [rhabdomyolysis], took an unauthorized peek at their medical records?

• Will there never be an instance of someone helping a friend going through a bitter divorce, by checking out their spouse’s email or bank records?
So, what can, what should, we do?

1. Citizens must take a stand.

The first thing we need to do is what you’ve already done by showing up today, following in the footsteps of America’s colonists in the 1770s. When the people will lead, their leaders will follow. Especially with a cautious Congress as election-focused and dysfunctional as ours, you and I are going to have to step up and take the lead.

2. Legislators, judges, and lawyers must refashion our law of privacy.

We have two, related, problems.

(1) In a world of ubiquitous surveillance -- video cameras, mail covers, collection of phone meta-data and comparable intrusions on privacy -- does a "reasonable expectation of privacy," our current legal standard, provide any protection?

(2) The courts have said that when you give information to a third party, such as a bank, phone company, or Internet service provider, you thereby lose any expectation of privacy.

This is the legal argument of the businesses that are collecting information about our lives, and the government agencies that then retrieve it from them -- information not constitutionally available to the government without the companies’ participation.

It is my opinion that both problems (ubiquitous surveillance and third-party transactions) require rethinking in this high tech age.

If you give your private information to a newspaper reporter, who makes no promises, you can't complain when it appears in the paper. On the other hand, we do protect the privacy of the information you provide your doctor, lawyer, or cleric.

Today, there needs to be a third category.

Credit card data may not be entitled to the protection of medical records, but it deserves more than what you give to a newspaper reporter. It’s reasonable to demand a level of trust in the business relationships that are necessities in our economy -- such as banking and phones. We are not gratuitously handing them private information; we must do so to have their service. It is given to them for a specific and limited purpose.

Certainly, the government should not be entitled to corporate records that would have violated customers’ constitutional rights if taken directly from the person whose records they are.

3. Government surveillance of American citizens should be conducted in accord with the requirements of the Fourth Amendment.

Could the government find more potential terrorists if its computers constantly monitored the phone conversations of 300 million Americans? Probably. It could find even more if FBI agents could conduct unannounced searches of 100 million American residences whenever they chose.

But as the Fourth Amendment’s history reveals, it is a specific response to the general search warrants of its time that take the form of NSA surveillance today.

To paraphrase the old saying about gravity, “Protection from unreasonable government surveillance is not just a good idea; it’s the law” – in this case, constitutional law.

Does protecting our rights to privacy mean that some criminals and terrorists will be more difficult to catch? Yes. That’s the trade-off.

But it’s a trade-off the nation’s founders made for us, and considered a more than reasonable price to pay for our rights of privacy.

4. We need a procedure to protect whistleblowers dealing with classified information.

Whether you consider Edward Snowden a hero or a traitor, the fact is that he has enabled a national deliberation even the President acknowledges is necessary. What has followed in the form of media investigations, reporting, and opinion pieces, Congressional hearings and proposed legislation, and modestly more NSA transparency, has created a better informed public.

We have laws protecting whistleblowers from retribution for revelations of conventional governmental wrongdoing. Revelations of wrongdoing in secret, classified programs, possibly unconstitutional, are if anything even more necessary and valuable in a democratic society than revelations of garden variety, unclassified mischief.

Of course, we can’t let everyone with a Top Secret clearance reveal whatever classified information they choose. But we can provide them more alternatives than (1) ongoing complicity in classified programs they believe to be unconstitutional, and (2) leaving the country when confronting the risk of life imprisonment after being charged with espionage or the treason of “aiding the enemy.”

There are many possibilities. One would be to permit whistleblowers’ confidential revelations of concerns to any member of Congress of their choosing. There are others.

We have much work to do, starting with our standing together today here in Iowa City. Thank you for this opportunity to participate in your efforts.

# # #


Steve Groenewold said...

We can't afford to let this issue slip out of the news cycle. The ubiquity of phones, cameras and drones in the near-term and long-term future is a tangled knot we'll spend years figuring out, even if it's just in our relationship with corporations. But if we don't establish definite and clear battlements to keep our government out of that data, human nature virtually guarantees we'll be forced to fight a battle over the very nature of our country sometime in the next generation.

Information is power, and that datacenter being built in Utah is more ominous than a thousand bin Ladens.

Nick said...

Advertising Notice

Notice Regarding Advertising: This blog runs an open comments section. All comments related to blog entries have (so far) remained posted, regardless of how critical. Although I would prefer that those posting comments identify themselves, anonymous comments are also accepted.

The only limitation is that advertising posing as comments will be removed. That is why one or more of the comments posted on this blog entry, containing links to unrelated matter, have been deleted.
-- Nick