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by danps

How strange is too strange for bedfellows?

4:31 am in Uncategorized by danps

Cross posted from Pruning Shears.

Political coalitions often bring together otherwise adversarial groups: In the eighties a subset of feminists and Christian fundamentalists worked together on anti-pornography issues; starting in the nineties immigrant rights and business groups found common cause on citizenship reform (still no success though); earlier this year environmentalists and Tea Party members created a Green Tea movement for local renewable energy choice; there are lots of examples.

The Utah Data Center

When working on a specific issue it’s often practical to turn a blind eye to the motives of one’s partners, especially when the issue in question has dicey prospects. In theory, anyway. The issue of National Security Agency (NSA) reform, though, presents some allies the left might want to be a little wary of.

California’s Tenth Amendment Center (TAC) is creating the most cognitive dissonance right now. Founder Michael Boldin appears to be a bit of a gadfly, though he seems to spend more time courting the far right than anyone else. I hadn’t given him or his group a second thought until last weekend, when I read about a wildly creative proposal for fighting the NSA’s new Utah data center: By cutting off its water supply.

The problem (to my mind) is that the TAC immediately cripples its own proposal by framing it in terms of a bunch of high-minded claptrap (PDF). Even its local action page recommends communities pass 4th Amendment Protection Resolutions.

The NSA can’t be successfully fought with those kind of direct challenges to the federal government. Congress has greased the skids, presidents love the power, and secret rubber stamp courts are eager to approve of everything placed before them. Anyone who wants to openly defy all of that should be ready to get very familiar with federal prison cuisine. And I suspect there won’t be many volunteering to become martyrs to that cause.

Using sub-federal level legislation to show disapproval of the NSA is worth considering, though. Within its defined scope. Creating an environment that says “we don’t like this and you are not welcome here” is a lot more realistic than a Constitutional showdown, and may – unlike pinning all hopes on a single, grand duel – accomplish something by slowly eroding support for the NSA.

I would think there are an abundance of hilariously subversive ways to make that disapproval plain. For instance, set the speed limit at all roads leading to the data center to five miles an hour – and speed trap the hell out of it. Zoning ordinances, property laws, and so on contain a wealth of details, with devils in them, for people to creatively work against the surveillance state. You don’t need to start by chaining yourself to the courthouse door.

Between Boldin’s grandiose strategy, protests-too-much references to proto-secessionists and wildly inapt comparisons to civil rights leaders, it’s a bit hard to imagine the average liberal signing on to his approach. The same goes for Stop Watching Us, which mysteriously sprang up a couple months ago just in time to announce a big protest – and is still advertising the protest on its home page, incidentally (“On October 26th, join us” etc).

This thing – group? organization? web site? what the hell is it? – has no contact page, no officers listed, no known funding, no history, nothing. Nothing but the whiff of Koch-funded astroturf, anyway. Yet it is very concerned with NSA spying. Give them your contact information and I’m sure they will keep you abreast of all the important ways you can help them do whatever it is they think of next.

Then there is the new Reform Government Surveillance (RGS) web site (via), created by big tech companies now that obediently handing over massive quantities of data to the government is a PR problem. At least this site is backed by known entities and is advocating more than romantic displays of bluster. On the other hand, there are no legislative partners listed, nor are proposals or even model legislation offered. All it has is (brace yourself) high minded claptrap,1 this time from tech executives.

Should those principles be translated into bills and introduced in Congress, it might be at least somewhat worthwhile. Legislation that even ostensibly reined in surveillance would be a good indicator of the national mood. That’s better than nothing.

Of course, supporting RGS means throwing in with the very companies that went along with the program just fine as long as it remained secret. Companies that also, incidentally, engage in some pretty unsavory activities when they are not lamenting the new unpopularity of helping the government spy on everyone. For instance, Google has recently launched a civil re-engineering program that allows their privilegemobiles to muscle people out of public spaces. With friends like that who needs enemies?

Still, what can an individual do? If one opposes the surveillance state, the options are pretty thin. It will probably never be a flashpoint issue, something that stands on its own and gets sustained, dramatic attention. (That might even be appropriate. This comment on the controversy over Pope Francis besting Edward Snowden for Time’s Person of the Year gives a good indication of why many rightly put government surveillance low on their civic To Do list.) Contacting representatives at key moments is a good and useful thing, but being a part of any ongoing campaign will require progressives to figure out just how much tolerance they have for working with those they otherwise oppose.

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by danps

US tech companies hamstrung by US surveillance

4:57 am in Uncategorized by danps

Cross posted from Pruning Shears.

About two and a half years ago I posted on the danger of the US turning into a tech pariah over its data collection policies. At the time I thought the main sticking points would be foreign governments’ concerns about their own confidential data being sent abroad, and objections to privacy violations that American companies’ indiscriminate collection practices (e.g. Google Street View) would subject their citizens to.

AT&T, spying, surveillance

I was wrong about that issue being a simmering pot getting ready to boil. It just sort of stayed on the back burner, which I still find somewhat surprising. There has been pretty compelling evidence since as least 2006 that US tech companies have been allowing the government to indiscriminately suck up Internet traffic. Though the Wired article characterizes it as being in the service of a domestic surveillance program, it seems clear that the program would not exclude foreign traffic.

Maybe it was an out of sight, out of mind situation; maybe foreign governments weren’t willing to confront the US as long as their own citizens were in the dark; who knows. For whatever reason, the merger of American IT companies’ data and the US government’s surveillance apparatus didn’t seem to trouble anyone too terribly much – until Edward Snowden came along.

The details from his leaks have stirred up serious worries outside the States. The main source of concern (and I feel like an idiot for not anticipating this) is the implication for the business community. Individuals having their data collected and shared without their consent are still pretty much on their own. But companies that are purchasing remote storage – also known as The Cloud and Big Data – in the US do not have to simply resign themselves to having the National Security Agency blind carbon copied on anything they put there.

There is already evidence that purchasing decisions are changing based on this; for just one eye-popping example (emph. in orig.):

In a survey conducted after the Snowden leaks, 10% of the foreign companies using cloud computing services said they’d already cancelled a project with a US cloud provider and 56% said they’d be less likely to use US-based providers.

Those providers are over a barrel now. They can’t just give earnest assurances that they really value their customers’ privacy and work super hard to keep it protected. Everyone knows the US government is pretty much destined to end up with any data that gets stored on American soil. The spying capability has been getting baked into domestic infrastructure for years now, probably to the point that there are more back doors than anyone can even keep track of.

There isn’t really any easy way out, either. An injury that long in the making will take a long time to rehabilitate. One action that might help would be increased Congressional oversight of the NSA, which could help explain why the recent bill reining in the NSA lost by such a surprisingly thin margin. (It would also be a cynically appropriate parallel with Europe: Violation of citizens’ rights are yawned at, but threats to corporate profitability get immediate action.)

The one thing these companies have going for them is a lack of ready competition. I’ll double down on my 2011 prediction that other countries will start to prioritize server farms located on their own soil. It may now start to be seen as a matter of each country’s national security to have its most important data confined within its borders. Until that infrastructure is built, though, American companies have some time to repair their reputations.

While storage providers have gotten the most attention on this issue, there may be an impact on device makers as well. A pecking order could develop based on how tightly integrated they are with US tech. At the bottom would be those like Apple based in America and running American operating systems. Next would be foreign device makers like Samsung, HTC and Nokia that run American operating systems like Windows 8 and Android. Then at the top, funny enough given their dismal market share, would be non-American companies running non-American operating systems. In other words, a company like BlackBerry that has a good (but not bulletproof) reputation for security might be well positioned to thrive in an environment that suddenly undergoes a seismic shift.

Predictions are dicey, obviously. But regardless of what happens going forward, American tech companies are suddenly in a real jam. There’s no easy way out of it either, because outside the US there is openness to alternatives that would have been hard to imagine not too long ago.

by danps

U.S. spying on Americans: Unpopular, and unlikely to end

4:04 am in Uncategorized by danps

Two recent stories have made for an interesting juxtaposition. First, the map of America’s intelligence underworld had some important contours filled in last Sunday with the New York Times’ report on the secret body of law that it called “almost a parallel Supreme Court.” Then on Wednesday a Quinnipiac poll showed a substantial increase in support of civil liberties. Taken together they might suggest a new dynamic in how the federal government relates to Americans on these issues.

Spy vs. Spy

Spy vs. Spy

Government has historically had free rein based on a general public ignorance of the policies; it looks like going forward those policies will exist in a cloud of popular disapproval. Such opposition puts the continued presence of the surveillance state in a new light: Following the Constitution on civil liberties and human rights has to this point basically been on the honor system. We don’t have any mechanism that springs to life when there are credible allegations of wrongdoing in these areas; it’s up to the leaders in the relevant institutions to have the will to follow through on their obligations. They will not face any sanction if they fail to, though.

For instance, look at the Convention Against Torture. Congress passed it, Ronald Reagan signed it, and under the Constitution it is the law of the land. Yet there have been credible allegations of torture for at least a decade now. No action has been taken. We like to pretend the Constitution has some sort of compulsion or force to it, but in the end it is only relevant to the extent it is willingly followed. Ultimately, all that matters is what those sworn to defending the Constitution decide to enforce. If officials responsible for investigating torture don’t feel like investigating torture, it won’t be – Constitution be damned.

Violations of civil liberties have been a little trickier for the federal government to dismiss, but so far so good. We now have an established precedent that those who are unjustly spied on cannot show standing to sue – even when they can. That technicality disposed of, the NSA and other intelligence agencies have carte blanche to snoop to their hearts’ content.

Now that its scope is becoming clearer, though, public opinion is turning pretty decisively against it. That is not necessarily a problem for the government. As with torture, it is largely on the honor system. The visible legal system has established its Helleresque logic of no one having any standing, the shadow legal system has its rubber stamp pretty much set up for drive-thru approval, and a whole infrastructure is in place according to a novel understanding of what law is. (We’ve come a long way from the “tricky legalisms adopted in classified memos” that Jane Mayer wrote about in The Dark Side.)

This is the age of impunity. If you manage to get to a certain critical level of importance, you are above the law. It’s true in the political world, as with torture and spying, and it’s true in the financial world as well. In the late eighties, the Savings and Loan crisis – which was of a far smaller scale than the 2008 meltdown – produced 1,100 criminal prosecutions and 839 convictions. Yet the most recent crisis produced zero of either. (And incidentally, as we approach the five year anniversary of the meltdown in October, keep in mind that statutes of limitations on what happened will begin to expire.)

Officials have not had to follow much more than their own moral compass in any of these matters. It isn’t as though anyone in Congress will go to jail for failing to provide robust oversight. And it’s not as though that body’s approval rating could go much lower. What’s one more failure at this point?

But the creation of a shadow government is not going over well, and that widespread public disapproval is a new complication. Many were initially cowed with ticking time bomb scenarios and other fearmongering into acquiescing to an awful lot immediately after 9/11. The populace seems to be getting its bearings back, though.

Leaders could just say damn the torpedoes, full speed ahead – and that is probably the most likely outcome at the moment. In which case, we will have begun something of an experiment: seeing just how contemptuous of the citizenry elected officials can be (and how corrosively cynical citizens can in turn become towards those representatives) and still retain the consent of the governed.
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by danps

Yes, Congress and the President are responsible for the surveillance state

2:55 am in Uncategorized by danps


Cross posted from Pruning Shears.

There is an emerging theme on the left that the true blame for our metastasized domestic spying programs lies with the American people. John Cole put it bluntly (via): “No, you want to see the villain, look in the mirror.” Charles Pierce was a little more diplomatic:

You can argue — and I have — that we all tacitly consented to this kind of thing when we allowed our legislators to pass the Patriot Act without facing any substantial pushback at the polls, and that we all continued to consent to it by not making it a bigger issue in our politics than we have.

This is an unusual framing, something we don’t use in just about any other context. Do we say to the long term unemployed: You tacitly consented to your unemployable state by allowing legislators to pursue contractionary policies?

After the Citizens United ruling did anyone say: The American people are responsible for the campaign finance mess, because they voted for the representatives who nominated the judges who etc? How about the abuse of the filibuster in the Senate? Blaming citizens for gradually developing systemic problems in Washington that only reveal themselves over time is absurd. It seems to me the primary responsibility lies with those who are creating and supporting these problems.

The electorate does have a role to play, but its ability to force changes is time- and process-constrained, at least on the big issues. For instance, the most effective citizen response to Citizens United would be a Constitutional amendment declaring that corporations are not people. Such an effort doesn’t happen overnight though; it takes a lot of people working over a long period of time.

The same is true with domestic spying. Citizens are just now learning the roughest contours of it. Like Citizens United it hints at a deep rot, something that will require a remedy on the order of a Constitutional amendment. Saying in the wake of the first emerging details that it’s citizens’ fault for not fixing institution-spanning corruption is crazy.

Another silly aspect of this critique is its over-simplification of electoral politics. Candidates run for office on platforms – whole bundles of positions. Voters don’t get to pick and choose elements of different platforms and construct their ideal candidate. They choose who aligns best with their beliefs, and that can mean voting for someone with objectionable positions on certain issues.

Sometimes none of the candidates will have a palatable stance on an issue. If you think Wall Street has not been properly investigated for the financial meltdown of 2008, who do you vote for? In, say, last November’s presidential election, which candidate was promising to crack down hard on Wall Street? If that was your most important issue, who should you have voted for? Yet presumably greedy and sociopathic bank executives, captured regulators and timid politicians are not the problem. Look in the mirror, right?

Civil liberties will never have a critical mass of popular support; they will always need principled support inside government. Someone who has been out of work for six months or can’t afford to have that worsening ache checked by a doctor is not going to prioritize the Fourth Amendment. The need for enlightened support is, again, not controversial in other areas.

A year after the Supreme Court’s Loving v. Virginia decision, roughly three fourths of Americans disapproved of interracial marriage. The idea that a policy that polls well must be continued is strange. (Though Nate Silver wonders just how substantial that support is given that the public is mostly in the dark on the details.)

The blame, long term, over decades, does indeed lie with the populace. But short and medium term, it belongs to those implementing the policy. That means George Bush and Barack Obama, as well as the Congresses that have so readily acquiesced to executive branch power grabs. In fact, Congress should probably get the biggest share of the blame for the current mess.

We seem to have stumbled upon an Achilles heel in our system of checks and balances. A branch of government will not jealously guard that power which there is no political benefit in exercising, and will give away those powers whose exercise is politically detrimental. Congress may theoretically have oversight of the surveillance state, but only bad things can come from exercising that oversight. How should we expect that to turn out? About the way it has: With stupidly named Gangs that are constrained to the point of uselessness, and an institutional aversion to doing anything hard.

That last point is not just true of intelligence oversight. In his new book Dirty Wars, Jeremy Scahill quotes (extended excerpt here) Colonel Douglas Macgregor about Congress’ meekness toward the Cheney/Rumsfeld-era Department of defense: “We have no interest in the Senate, in holding anyone accountable and enforcing the laws.” Taking positions that are widely unpopular or that create friction with one’s acquaintances takes a certain amount of spine. Any system that requires courage might be fatally flawed. But the lion’s share of responsibility for abuses still goes to those who abdicate or unjustly seize power.

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by danps

James Rosen, irresponsible journalism and untrustworthy governance

6:45 am in Uncategorized by danps


Cross posted from Pruning Shears.

Earlier this week I had a brief and unproductive Twitter exchange with Libby Spencer over leaks, whistleblowers and journalists. It was prompted by this from BooMan:

We need to get our heads around the distinction between a whistleblower, who observes criminal or unethical behavior by government officials, and a criminal who leaks highly sensitive classified intelligence that burns sources and endangers our national security. Sometimes these two things can overlap, as when we learned that the NSA was conducting warrantless wiretaps in violation of current law. Bradley Manning revealed official wrongdoing, too, but he also did so with no discrimination.

Libby supported this point of view, I disagreed, and it quickly became obvious we wouldn’t get anything productive done 140 characters at a time. So here is the post-length treatment. The summarized version of her position (correct me if I’m wrong Libby!) is to side with the government in cases where, as BooMan writes, a leaker provides information without discrimination, or when outlets engage in irresponsible journalism.

I think the distinction between a “whistleblower” and “a criminal who leaks highly sensitive classified intelligence that burns sources and endangers our national security” is specious (though he allows that “these two things can overlap”). My whistleblower may be your criminal who leaks etc. It largely depends on whether you support the leak in question.

BooMan’s post starts out looking at the recently revealed Justice Department (JD) investigation of James Rosen. Coming on the heels of the AP phone records seizure, it immediately became linked to that scandal. (That’s very fortunate timing! I wonder how the WaPo managed to unearth that “newly obtained court affidavit” at such a critical moment.)

There seem to be two big differences between them, though. The first is that Rosen was more narrowly targeted than the AP was, the second is that Rosen appeared to want to force a change in US policy as part of his reporting. So at least some the details on this particular case seem to support the JD’s actions.

The problem is that BooMan is not content to stay with the details of that one particular case. He moves on to some pretty troubling generalizations instead – his condemnation of indiscriminate leaking, for example.

Whistleblowers typically approach journalists in part because they want an organization with experience and resources to comb through the documents and figure out what to publish. Daniel Ellsberg indiscriminately leaked 7,000 pages to The New York Times. Do Libby and BooMan consider him a criminal?

We can debate whether WikiLeaks is a media outlet (I think it is, or at least it was at the time of its Afghan war diary coverage), but Manning’s smuggled documents were published simultaneously – and with the cooperation of – The Guardian, The New York Times and Der Spiegel. Did those outlets engage in irresponsible journalism?

This debate doesn’t happen in a vacuum. Those who have been on the receiving end of the surveillance state’s attention tend to look at a story like Rosen’s in the broader context of the government attacks on the First Amendment. If national security reporting is now fair game for government attack, there’s no reason to think it will remain confined to sketchy characters like Rosen. Scoops like those from Charlie Savage and the New York Times will also presumably receive more scrutiny as well.

The American government’s sordid history of deception with highly classified intelligence goes back a long way. It’s somewhat astonishing to read someone uncritically pass along government claims that something endangers what BooMan calls “our” precious bodily fluids national security given its track record. One of the most visible tools used to keep information from the public has been the state secrets privilege (SSP), which was literally founded on a lie:

Although the state secrets privilege has existed in some form since the early 19th century, its modern use, and the rules governing its invocation, derive from the landmark Supreme Court case United States v. Reynolds, 345 U.S. 1 (1953). In Reynolds, the widows of three civilians who died in the crash of a military plane in Georgia filed a wrongful death action against the government. In response to their request for the accident report, the government insisted that the report could not be disclosed because it contained information about secret military equipment that was being tested aboard the aircraft during the fatal flight. When the accident report was finally declassified in 2004, it contained no details whatsoever about secret equipment. The government’s true motivation in asserting the state secrets privilege was to cover up its own negligence.

Of course, we didn’t find that out until fifty years later. When the government engages in objectionable and secretive behavior we only find out haphazardly. There is no mechanism that allows this stuff to make its way to the public domain. For the instances we are fortunate enough to discover, taking national security claims at face value has not been a good bet. For instance, even the judicial review in Reynolds was crucially dependent not on evidence but on earnest assurances from the executive branch (emph. added):

In the majority opinion, the court, having not seen the documents in question, relied on the Air Force affidavit to conclude that certainly there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.

The SSP has remained a popular way for presidents – previous and current included – to cloak dubious activities in secrecy. Given that decades-long pattern (and the aggressive post-9/11 buildout of the surveillance state), it requires a pretty ahistoircal outlook to swallow whole the charge that James Rosen is “an aider, abettor and/or co-conspirator.” We should expect more than government-furnished email excerpts, at least.

Those who defend the status quo deserve similar scrutiny. For instance, BooMan’s claim that “[t]he report relied on sources in the North Korean government” is sloppy. The story cites “sources inside North Korea,” not inside its government. I haven’t seen any reporting that the source was an actual government official, but those who are defending the JD’s actions (BooMan and see also the Mediaite story) have made that claim. Maybe that is a trivial distinction, but maybe it is something the JD is willing to have people infer.

The problem with all this cloak and dagger stuff is that ordinary citizens cannot reliably inform themselves on the issue. The quick way to choose whom to believe is to pick the side you like better. But after that first snap decision, it helps to look at the various parties’ credibility. This may be where Libby and I part company, because I have become so distrustful of government snooping and deception that I no longer believe its national security claims without some sort of independent corroboration. She still seems willing to. Maybe that makes me cynical or her gullible; who knows.

What I do know is that we are now in the twelfth year of a war that we are told encompasses the entire globe and that by definition will never end. And war corrupts democracy: It prevents citizens from becoming educated on one of the most important issues a nation can engage in. It turns political opponents into traitors and adversarial reporting into treason. Those who push back on a wartime president are endangering (our) national security. Those who question the wisdom of our policies are giving aid and comfort to the enemy. War does not, to put it mildly, promote a culture of free and open inquiry in the country that wages it. In an environment like that, I’ll err on the side of skepticism.

UPDATE: Libby responds here.