Wednesday, July 03, 2013

Surveillance: Differences of Degree and of Kind

July 3, 2013, 11:30 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.

We've Become What Nation's Founders Feared

On this year's July 4th eve, it seems appropriate to note that what our government is doing to the American people today with its NSA surveillance, is the modern day equivalent of what drove our founding fathers to the revolution we commemorate.

It is what motivated their inclusion of the Fourth Amendment's protections in our Constitution's Bill of Rights, and a Declaration of Independence from the oppressive "general search warrants" of the British.

What were these British "general warrants"? It's a long story, but here's the gist.

The British customs and tax officials wanted to collect from the American merchants what British law said they owed. Smuggling was a way to avoid payment. So they wanted to be able to search businesses and homes for smuggled goods.

British law provides the philosophical and legal origins of the requirements of our Fourth Amendment, dating from at least Semayne's case (1604) and Entick v. Carrington (1765). So far, so good.

The problem was that, from the perspective of the King, American merchants might be British subjects for purposes of paying taxes, but they did not enjoy the rights of British subjects when it came to British officers' searches of their homes and businesses. [Cartoon credit: Jeff Parker, recipient of numerous awards for syndicated cartoons during his 21 years with Florida Today. July 3, 2013.]

In 1660 the English Parliament authorized the use of "writs of assistance" by customs officials in America -- "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," or "general warrant."

Which brings us to an appropriate time to examine the details of our Fourth Amendment (similar in most respects to the 18th Century requirements for British search warrants).

The Fourth Amendment 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."

Note that the 1765 Entick case, referenced above, found the warrant over broad, in that it authorized the taking of all of Entick's papers, not just those involving criminality. Our language is "particularly describing the . . . things to be seized." It also found the warrant lacked probable cause for any search. Our language is "no Warrants shall issue, but upon probable cause."

Clearly, what early British law, and our Fourth Amendment, contemplate is, as Sir Edward Coke stated in Semayne, that "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose." That is to say, we all have a legal. moral (and in the U.S. today, constitutional) right to a zone of privacy surrounding our "persons, houses, papers, and effects." It cannot be casually violated. Indeed, it can be breached by the government only when the search is "reasonable," supported by "probable cause" to believe that we -- not people in general, but we in particular -- have engaged in wrongdoing, and that what is being searched for can be "particularly described" in advance.

The general warrants, by contrast, authorized the customs officials 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." No judicial oversight.

This past month I wrote a three part blog essay series about privacy and government surveillance. "Law's Losing Race With Technology; Redefining Privacy," June 7; "From Zazi to Stasi; Trusting a Governent That Doesn't Trust You," June 9; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?" June 11.

In the second ("From Zazi to Stasi") I noted the similarities between what the Stasi was doing and what our NSA is doing. It was only a couple weeks later that I came upon a former Stasi officer's take on how the American government is spying on its citizens.

Wolfgang Schmidt, a one-time lieutenant colonel in the former East German secret police and security/spy agency has said of our NSA, "'You know, for us, this would have been a dream come true.' . . . [H]is department was limited to tapping 40 phones at a time, he recalled. . . . He finds breathtaking the idea that the U.S. government receives daily reports on the cellphone usage of millions of Americans and can monitor the Internet traffic of millions more. 'So much information, on so many people,' he said." Matthew Schofield, "Memories of Stasi color Germans’ view of U.S. surveillance programs," McClatchy Washington Bureau, June 26, 2013.

He makes an important point: a difference to be "a difference" has to make a difference. A difference of degree may be a difference that makes no difference. A difference of kind does make a difference.

On your way out the door to a picnic, you ask someone, "What's the temperature?" In this case the difference between 73 degrees and 75 degrees is -- in addition to being literally a difference of degree -- a difference that makes no difference.

When the Stasi's wiretapping ability went from one wiretap to 40, that was a difference. It made a difference. But not that much difference. You clandestinely listen in on one person's conversations, you listen in on 40. But when the NSA goes from a constitutional presumption of one search warrant at a time, for one person at a time, with probable cause, approved by a reviewing judge, to a general search warrant that entitles them to spy on every American simultaneously, just because they have the technology that makes it possible, that is a difference that makes an enormous difference.

We are assured by our government that everything it is doing is "legal." That's not so clear. A part of the problem is that the lawyers' opinion interpreting the Patriot Act that President Obama and his surveillance folks are relying on, they contend is so secret that they can't tell us what it says. Some of those who voted for the Act believe that what is happening is not authorized by the Act.

But assume it is "legal," in the sense that what is being done is in accord with an act of Congress. The question is whether that act, and what is being done in pursuance of that act, is constitutional. And even if it is 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. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers." Dr. Martin Luther King, "Letter from Birmingham Jail," April 16, 1963. Presumably what the Stasi was doing was also "legal."

There was more bad news on the surveillance front today than I like to confront in a 24-hour period before July 4th.

First I read that there is a "Mail Isolation Control and Tracking program, in which Postal Service computers photograph the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces last year. It is not known how long the government saves the images." Ron Nixon, "U.S. Postal Service Logging All Mail for Law Enforcement," New York Times, July 4, 2013.

Then I find out that "As Congress considers a new immigration law that would expand the fleet of unmanned drones along the border, the agency in charge of border protection is increasingly offering the drones it already owns to a variety of domestic law-enforcement agencies . . . . Three years ago, the drones were used by other agencies 30 times; in 2012, that jumped to 250 times. . . . [T]he border agency said data collected by the drones could be shared with other government agencies, raising concerns about the privacy of Americans within the nation’s borders. . . . [It] raised the possibility of eventually equipping its drones with 'nonlethal weapons' to 'immobilize' people and vehicles trying to cross the border illegally. . . . A bill proposed in the House of Representatives would prohibit firearms on drones in domestic airspace, but not necessarily other weapons like tear gas or pellets. The agency has used Predator drones, the same vehicles used overseas by the United States military since 2005. . . . [They] can fly for 20 hours nonstop. They are based in Arizona, Florida, North Dakota and Texas." Somini Sengupta, "U.S. Border Agency Lets Other Units Use Its Drones," New York Times, July 4, 2013.

Finally, I learn that those wonderful folks who brought us our laptops and smart phones, software and apps -- our friends -- have been hip deep in the spy business from the beginning. We only got a hint of this recently. Now we find out, "Former U.S. officials and intelligence sources say the collaboration between the tech industry and spy agencies is both broader and deeper than most people realize, dating back to the formative years of Silicon Valley itself. As U.S. intelligence agencies accelerate efforts to acquire new technology and fund research on cybersecurity, they have invested in start-up companies, encouraged firms to put more military and intelligence veterans on company boards, and nurtured a broad network of personal relationships with top technology executives. And they are using those connections to carry out specific espionage missions, current and former officials say . . .." Joseph Menn, "Strong Ties Bind Spy Agencies and Silicon Valley," Reuters/New York Times, July 3, 2013.

I've read the Fourth Amendment over and over. Nowhere in it can I find that its protections only extend to the content of: a letter inside a postal envelope, a phone conversation, or an email message. Nowhere in it can I find authorization for surveillance of the entire American population simultaneously, without suspicion or probable cause, to discover to and from whom everyone is writing, talking and emailing. [See below for commentary on "what is a 'search'?"]

What our government is doing, and doing more and more with the passage of time, is the modern day equivalent of the 18th Century British "general search warrants." It is what our Fourth Amendment was deliberately, and specifically, designed to prohibit. The founders insisted that these rights "shall not be violated."

They are being violated. And tomorrow, July 4th, is a good day to reflect upon that fact, and our history.

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What is a "search"?

An issue I have deliberately kept out of the blog essay, above, involves the definition of a "search." The discussion of that issue is not necessary to the general point made in the essay. But it may be necessary to anticipate critics' comments.

It arises as follows. A prohibition on "unreasonable searches" requires not one, but two, findings: (1) that the search was unreasonable, but also (2) that there was, in fact, a "search."

For example, assume a city has an ordinance prohibiting homeowners from keeping old, non-functioning vehicles in their yards. A city official walks, or drives, by a home with three cars in the yard; one's on blocks, another has the hood up, revealing no engine, and the third is severely rusted out. She cites the homeowner with a violation of the ordinance. Can the homeowner claim a Fourth Amendment violation? Was this an "unreasonable search"?

Most would say, "No." Why? Because the Supreme Court's Katz opinion, and its progeny, suggest the standard should be, in this case, (1) did the homeowner have an "expectation of privacy," and if so (2) was that expectation something most people would consider to have been reasonable? Most people would not expect that which they have left in plain sight from the street would be legally protected from being seen by passersby. And if they did have such an expectation, most people would not consider that expectation to have been reasonable.

So far, OK. But we're left with a couple of problems. (1) In a world of ubiquitous surveillance video cameras, mail covers, collection of all phone call meta-data, and comparable intrusions on privacy does a "reasonable expectation of privacy" provide us 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 the information from them (information that the government might not have been able to acquire constitutionally without their involvement).

It is my opinion that both problems (ubiquitous surveillance and third-party transactions) require rethinking in this high tech age. If you hold information you consider to be private, and you turn it over to a newspaper reporter (who makes no promise of protecting your privacy), you can't really complain when it ends up in the local paper. On the other hand, we do protect the privacy of information you hand over to your doctor, lawyer, or priest. And I think there needs to be a third category these days. The information you necessarily have to provide a credit card company, for example, may not be entitled to the protection accorded information you give your doctor. But neither, in my opinion, should it be accorded no more protection than what you hand over to a newspaper reporter, neighbor, or colleague. I believe there is, in fact, a reasonableness in demanding a level of trust in our relationships, business or otherwise, that are necessities in our economy -- such as banking and phones. We need these services. We are not gratuitously handing them private information; it is a necessity that we do so in order for them to provide the service. It is given to them for a specific and limited purpose. And that is what I argue in "Law's Losing Race With Technology; Redefining Privacy," June 7.

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