. . . because much of the content relates both to Washington, D.C., and "outside the beltway" -- the heartland, specifically Iowa -- and because after going from Iowa to Washington via Texas and California I subsequently returned, From DC 2 Iowa.
Showing posts with label domestic surveillance. Show all posts
Showing posts with label domestic surveillance. Show all posts
We don't know much about the extent to which American companies have been complicit in the NSA's spying on American citizens. They are legally prevented from telling us, and have requested permission from the government to do so (but have consistently been denied their requests). Yesterday the owner of one such company, confronted with, as he put it, the choice "to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit," chose the latter. Here is the full text of his letter, posted on Lavabit.com, followed by some relevant stories and hundreds of comments. Hopefully, this courageous -- and costly -- decision of his, and the worldwide interest in, and support of, his case will help to bring these issues to a rational, and constitutional, conclusion. -- N.J. [Photo credit: Ladar Levison's Facebook page photo]
Letter to Customers from Lavabit Owner Ladar Levison
My Fellow Users,
I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit. After significant soul searching, I have decided to suspend operations. I wish that I could legally share with you the events that led to my decision. I cannot. I feel you deserve to know what’s going on--the first amendment is supposed to guarantee me the freedom to speak out in situations like this. Unfortunately, Congress has passed laws that say otherwise. As things currently stand, I cannot share my experiences over the last six weeks, even though I have twice made the appropriate requests.
What’s going to happen now? We’ve already started preparing the paperwork needed to continue to fight for the Constitution in the Fourth Circuit Court of Appeals. A favorable decision would allow me resurrect Lavabit as an American company.
This experience has taught me one very important lesson: without congressional action or a strong judicial precedent, I would _strongly_ recommend against anyone trusting their private data to a company with physical ties to the United States.
Sincerely,
Ladar Levison
Owner and Operator, Lavabit LLC
Defending the constitution is expensive! Help us by donating to the Lavabit Legal Defense Fund here.
# # #
First reported here, Xeni Jardin, "Lavabit, Email Service Snowden Reportedly Used, Abruptly Shuts Down," Boing Boing, August 8, 2013, The Guardian added a good bit to the story: "The email service reportedly used by surveillance whistleblower Edward Snowden abruptly shut down on Thursday [Aug. 8] after its owner cryptically announced his refusal to become 'complicit in crimes against the American people.' Lavabit, an email service that boasted of its security features and claimed 350,000 customers, is no more, apparently after rejecting a court order for cooperation with the US government to participate in surveillance on its customers. It is the first such company known to have shuttered rather than comply with government surveillance." Spencer Ackerman, "Lavabit email service abruptly shut down citing government interference,"The Guardian, August 9, 2013.
Comments on the Guardian's story, almost exclusively supportive, increased another couple of hundred while I wrote this. You can go directly to them here.
The New York Times, also had a report, including Silent Circle's voluntary shut down: "A Texas-based company called Lavabit, which was reportedly used by Edward J. Snowden, announced its suspension Thursday afternoon, citing concerns about secret government court orders. By evening, Silent Circle, a Maryland-based firm that counts heads of state among its customers, said it was following Lavabit’s lead and shutting its e-mail service as a protective measure. Taken together, the closures signal that e-mails, even if they are encrypted, can be accessed by government authorities and that the only way to prevent turning over the data is to obliterate the servers that the data sits on." Somini Sengupta, "Two Providers of Secure E-Mail Shut Down,"New York Times/Bits, August 8, 2013.
The Washington Post reports, among other things, that the NSA's invasion of formerly secure cloud services could cost American business as much as $35 billion. (Of course, Amazon's Bezos, now the owner of the Washington Post, is the owner of one of the nation's largest cloud service providers.)
"Silent Circle’s business is based on promising absolute confidentiality to its clients. 'There are some very high profile, highly targeted groups of people' among the firm’s customers, says Silent Circle CEO Mike Janke. 'We felt we were going to be targeted, without a doubt. We see the writing the wall, and we have decided that it is best for us to shut down Silent Mail now,' the company wrote in a Thursday blog post. 'We have not received subpoenas, warrants, security letters, or anything else by any government, and this is why we are acting now.' . . . One recent estimate suggested that U.S. companies could lose as much as $35 billion as fears of NSA surveillance lead foreign companies to cancel their contracts with U.S. cloud service providers." Timothy B. Lee, "Another e-mail service shuts down over government spying concerns,"Washington Post, August 9, 2013.
The Wall Street Journal's brief story notes that "In 2011, a telecom company fought the Federal Bureau of Investigation in court over a request for customer records. That same year, Sonic.net, a Santa Rosa, Calif.-based Internet provider, also fought a court order on a WikiLeaks supporter." Danny Yadron, " Snowden’s Email Service Shuts; SnowdenMail is No More,"Wall Street Journal,. August 8, 2013.
In addition to which, the New York Times added its editorial voice today to criticism of the NSA's spying on Americans generally: "Apparently no espionage tool that Congress gives the National Security Agency is big enough or intrusive enough to satisfy the agency’s inexhaustible appetite . . .. Time and again, the N.S.A. has pushed past the limits that lawmakers thought they had imposed . . . guaranteed by the Constitution. . . . [I]it copies virtually all overseas messages . . . then scans them to see if they contain any references [that] might have a link to terrorists. That could very well include . . . family members expressing fears of a terror attack. Or messages between an editor and a reporter who is covering international security issues. Or the privileged conversation between a lawyer and a client who is being investigated. Data collection on this scale goes far beyond what Congress authorized . . .. [T]his practice . . . is unquestionably the bulk collection of American communications . . .. Despite President Obama’s claim this week that 'there is no spying on Americans,' the evidence shows that such spying is greater than the public ever knew." Editorial Board, "Breaking Through Limits on Spying,"New York Times, August 9, 2013, p. A18.
Naturally, the common people don't want war; neither in Russia, nor in England, nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. . . . [T]he people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.
-- Nazi leader (second to Hitler) Herman Goering, April 18, 1946, quoted in Gustave Gilbert, Nuremberg Diary (1947), confirmed by Snopes.com.
We are in the process of losing one of our most precious rights as Americans; one our nation's founders fought the Revolutionary War to obtain for us: our rights to privacy guaranteed in the Fourth Amendment. See, "The Future of Surveillance, and How to Stop It," August 4, 2013. [Photo credit: Gregory Johnson.]
Make no mistake, it should be obvious that no American, including myself, treats casually the possibility of another 9/11. (Though now 50%, including myself, believe that eliminating every destructive, violent act, regardless of significance, is neither possible nor worth further loss of Americans' privacy rights.) And clearly, I am not saying that there will not be any terrorists' acts during the remainder of this week. How on earth could I know? There may be.
But I find this last weekend's rush to embassy closings throughout the Middle East and Africa very troubling.
1. The timing was suspicious. Having barely avoided passage of a Congressional bill restricting the NSA's domestic surveillance of Americans, only hours later this new, unspecified, terrorist threat -- primarily abroad -- offered the opportunity to brief all of those who had voted for the bill, saying in effect, "See, we told you how well the NSA's surveillance programs work and protect Americans' safety." ("Some analysts and Congressional officials suggested Friday that emphasizing a terrorist threat now was a good way to divert attention from the uproar over the N.S.A.'s data-collection programs." Eric Schmitt, "Qaeda Messages Prompt U.S. Terror Warning,"New York Times, August 3, 2013, p. A1. Never mind that this newly found threat abroad, and the surveillance that uncovered it, is totally unrelated to the domestic surveillance that produced the nation's uprising of opposition and the bill for which those legislators had just voted. As the New York Times editorialized today, "No one has questioned the N.S.A.’s role in collecting intelligence overseas, but the debate is about domestic efforts to vacuum up large volumes of data on the phone calls of every American that are legally questionable and needlessly violate Americans’ rights. A threat from Al Qaeda, no matter how serious, should not divert attention from a thorough investigation of the domestic spying."
2. Governments, including ours, are notorious for manipulating their population with fear. Struggling to find a reason for invading Iraq, the Administration came up with a number of scary assertions, all of which proved to be false -- that Saddam Hussein had weapons of mass destruction, was an ally of al Qaeda who helped plan 9/11, and that he had aluminum tubes for purposes of building atomic weapons. They were following Goering's advice (quoted above) to "tell them [the people] they are being attacked," up to and including, as Condoleeza Rice put it on CNN, September 9, 2002, "We don't want the smoking gun to be a mushroom cloud." Bill Moyers, "Buying the War," Bill Moyers' Journal, April 25, 2007.
3. The supposed threat was so general as to be worthless. "Something is going to happen, somewhere, sometime this week -- maybe as soon as Sunday," we were told. How helpful is it to know that there may be a suicide bomber outside an American embassy somewhere in Africa, or a train derailed in France, or hackers into the power grid causing a blackout throughout the Midwest -- or something else we can't imagine at a place we'd never suspect? What are we supposed to do with that information? Isn't that now true of every day of every week? We've been living with that, and most folks have been going about their business -- with the realization that more pedestrians are killed each year than died in the 9/11 disaster. Aside from scaring people, and gaining support for NSA domestic surveillance, what was the point?
4. Isn't it more likely this was what's called "rabbit chatter"? The intelligence community talks of "chatter," meaning what their surveillance picks up as cell phone conversations or text messages. But the terrorists -- especially their top leaders ["Ayman al-Zawahri, who succeeded Osama bin Laden as the head of the global terrorist group, and Nasser al-Wuhayshi, the head of the Yemen-based Al Qaeda in the Arabian Peninsula," Eric Schmitt and Mark Mazzetti, "Qaeda Leader's Edict to Yemen Affiliate Is Said To Prompt Alert,"New York Times, August 6, 2013, p. A1.] -- did not need Edward Snowden to tell them this was going on. They are many things, including evil. But they are not dumb. They have work-arounds, including couriers, for carrying on communication among themselves when they don't want to let the NSA in on their plans.
When they do let us listen it's usually deliberate, and designed to mislead us. Indeed, in this instance, concerned that our intelligence might miss their messages, "the Qaeda leader, Ayman al-Zawahri, posted on jihadist forums on Tuesday [August 30] . . . his address [calling] for attacks on American interests in response to its military actions in the Muslim world and American drone strikes in Pakistan and Yemen" -- something we could have found out with a $200 used laptop rather than a multi-hundred-billion-dollar NSA. Eric Schmitt, "Qaeda Messages Prompt U.S. Terror Warning,"New York Times, August 3, 2013, p. A1. (Our "military actions," not incidentally, have been an enormous recruiting program for AQAP (Al Qaeda in the Arabian Peninsula), which has seen the number of volunteers increase after every drone strike.)
The intercepted messages were most likely their "rabbit chatter" -- as in, "Oh, look at the cute rabbit!" -- designed to take our eye off of the ball, cause the U.S. government to spread the terror amongst us, and save Al Qaeda the cost of the airline tickets to send their terrorists here -- kind of a win-win from their perspective. We should not be dismissive, or otherwise find their rabbit chatter reassuring. After all, it just means they're planning on carrying out something else while we're busy gearing up for embassy bombings in the Middle East or Africa. But it does mean it's highly unlikely they are going to risk telling us their plans.
5. The media's reaction was frightening. Most newspapers and TV programs fell in line as propagandist cheerleaders, repeating the Administration's line with great solemnity and alarm, without a whisper from reporters -- or the opportunity for guests -- to express either skepticism or even ask serious questions about what our government was doing. It's Iraq all over again. As Bill Moyers observed in 2007 about the media's role in that war, "Four years ago this spring the Bush administration . . . plunged our country into a war . . .. The story of how high officials misled the country has been told. But they couldn't have done it on their own; they needed a compliant press, to pass on their propaganda as news and cheer them on. . . . [T]he story of how the media bought what the White House was selling has not been told in depth . . .. As the war rages into its fifth year, we look back at those months leading up to the invasion, when our press largely surrendered its independence and skepticism to join with our government in marching to war." Bill Moyers, "Buying the War," Bill Moyers' Journal, April 25, 2007.
6. The government's double standard hypocrisy doesn't build trust. Have you noticed? Our government has leaked that it is monitoring the Al Qaeda leadership, by name (see 4, above), that it includes messages between Pakistan and Yemen, the time it received the messages in question, and their content. So far as I have read, there has been little to nothing written about the possible risk to our national security, and the effectiveness of NSA programs, from these revelations.
Compare this to the reaction to Edward Snowden's revelations. He carefully did not reveal such details; he was concerned about domestic surveillance programs relatively unknown to the public (and, as it's turned out, many senators and members of congress. If I recall correctly, he said little if anything about our foreign surveillance of Al Qaeda operatives.
The former, the government's revelations, may well have caused serious damage to the real efforts to protect us from terrorism. Whether you consider Snowden a hero or a criminal, it's hard to deny that his revelations did not risk that kind of damage.
And yet, those providing the government's revelations are apparently not going to confront even criticism, let alone prosecution. Meanwhile, those in the intelligence community, and their apologists in Congress, while silent about the government's leaks, describe Edward Snowden as a "traitor," engaged in "treason," who ought to be imprisoned for life if not put to death.
What is the consistent theme here?
It seems to me it relates to the impact on the Administration's, and intelligence community's, public relations. Revelations that embarrass the government will be considered "treason" (for example, that the government has withheld from the American people the extent to which it is spying on them). Those that demonstrate how wonderful our surveillance programs are working to protect us from terrorism (deceptively suggesting the unrelated domestic surveillance programs are equally valuable) will be considered "patriotism."
7. More bizarre, inexplicable inconsistency further challenges government's credibility. If there really is a potential danger to all U.S. embassies in the Middle East and Africa, warranting their closing and protection of their employees -- a matter as to which I don't express an opinion -- why, oh why, would our embassies in the two countries where we are at a stage of "war" be exempt??!! "The United States is to keep some of its embassies in North Africa and the Middle East closed until the end of the week as a precaution due to a possible al-Qaeda terror threat. Yesterday [Aug. 4] 21 diplomatic posts were shut . . .. However US embassies in Kabul, Baghdad and Algiers will reopen today [Aug. 5]." "Terror Threat Keeps Some U.S. Embassies Closed Until Saturday," Euronews, August 5, 2013.
8. "Do unto others . . .." Imagine for a moment that the roles were reversed. Imagine that Canada was letting Al Qaeda have bases for drones -- or unable to prevent them. Imagine that Al Qaeda was targeting our leaders -- pick your favorites: Senators and members of Congress, the President, Joint Chiefs of Staff, football coaches, hedge fund managers, whoever you feel closest to. Imagine that, in the process, they ended up killing, probably unintentionally, members of your family, or your church, or your football team. Can you understand why what we are doing in Yemen -- as I write this -- is increasing, much faster than it is decreasing, the number of Yemenis who join AQAP, but the far greater numbers who simply seek revenge against us?
As I write this, I am sitting in the room where I lay on the floor, my head in the radio speaker, December 7, 1941, listening to the news that the Japanese had bombed Pearl Harbor, while my father brought me the globe, spun it, and pointed out Hawaii -- perhaps in an effort to reassure me it was farther away than Cedar Rapids. We may be better off these days, in a way, not accepting on blind faith everything our government tells us. But there were advantages to the government motivating us with a spirit of patriotism, rather than with a fear of terrorism. We came together as a nation then, fought and won a world war in less than half the time it will take us to become, and remain, bogged down in Afghanistan. There was a role for everyone in WWII, including seven-year-old boys; there was no political capital to be gained by a senator declaring his party's primary political goal was to make the president fail; then, that would have been regarded as treason.
I wish I could feel the sense of trust in my government this evening that I felt 70 years ago, but I just can't.
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:
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 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.
• 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.
