12

Judge Posner’s Troubling Call for Massive Surveillance

posner1.jpgJudge Richard Posner has written an op-ed in the Washington Post today where he calls for a massive program of surveillance of U.S. citizens — their email, documents, phone conversations, nearly everything they say or do — regardless of whether they are suspected of any wrongdoing or not. Posner’s argument is quite startling and troublesome. Posner writes:

The collection, mainly through electronic means, of vast amounts of personal data is said to invade privacy. But machine collection and processing of data cannot, as such, invade privacy. Because of their volume, the data are first sifted by computers, which search for names, addresses, phone numbers, etc., that may have intelligence value. This initial sifting, far from invading privacy (a computer is not a sentient being), keeps most private data from being read by any intelligence officer.

In other words, Posner is saying that so long as the data is gathered by computers, there’s no privacy invasion if the government collects everything. It is also odd for Posner to say this, because in Northwestern Memorial Hospital v. Ashcroft, 362 F.3d 963 (7th Cir. 2004), he held that even records without identifying information could constitute an invasion of privacy: “Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy.” Posner’s conclusion that records that are anonymized could still violate people’s privacy is a radical one, and I find it hard to square with what he says in the op-ed.

So, taking Posner’s argument to the extreme, there’s no problem if the government were to wiretap, install video cameras in our homes, collect every document we ever wrote, and so on — so long as the information were collected by computers and not seen by human eyes. But what about the vast power this gives the government? What about the potential for government abuse? What about the chilling effects on people’s speech and freedom? Posner ignores these things.

Posner goes on to write:

Read More

14

Hypothetical: What If President Bush Were Correct About His Surveillance Powers?

george-bush1.jpgThere’s been some terrific analysis in the blogosphere about whether President Bush is correct that he had the power to authorize warrantless surveillance. (See here and here for a roundup of posts.) The arguments thus far focus on what the President has already done, but the President has stated that he will continue the warrantless surveillance “for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens.”

Suppose the President is right that he has the power to do this based on his “inherent authority” as Commander-in-Chief. The implications are quite alarming. It means that the President, in his sole discretion, can secretly authorize the NSA to engage in electronic surveillance on U.S. citizens until the War on Terrorism is over. This is a war without a foreseeable end. Under his argument, there seems to be no reason why he can’t authorize other agencies to engage in surveillance, such as the FBI and CIA. And why does it need to be limited just to wiretaps? Perhaps video surveillance, bugs, searches of homes, gathering documents, and more.

Under his argument, Bush could continue to ignore the requirements of any law that stands in his way. What could Congress do? Congress could try to enact a law to clarify that it wants the President to abide by existing laws. Of course, the President could veto that law, but suppose Congress overrode the veto. According to the President’s logic, he could still say that his “inherent authority” allows him to ignore it.

The problem with Bush’s argument is that he has articulated virtually no conceivable limits to his power. The stakes of the debate aren’t just about what the President has already done. They are about what the President has defiantly declared he has the power to do in the future.

1

Federal Judge Resigns from the FISA Court

The Washington Post reports:

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John G. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court’s work.

2

NSA Surveillance: Blog Post Roundup II

In addition to the blog post roundup I did yesterday, here are more blog posts about Bush’s NSA surveillance worth reading:

David Cole, Bush’s Illegal Spying (Salon, Dec. 20, 2005)

“Attorney General Gonzales contends that the authorization by Congress to use military force somehow implicitly gave the president power to wiretap Americans at home. But nothing in the authorization even mentions wiretaps. And that claim is directly contrary to the express language in FISA limiting any such authority. While intercepting the enemy’s communications on the battlefield may well be an incident of the war power, wiretapping hundreds of people inside the United States who are not known to be members of al-Qaida in no way qualifies as an incidental wartime authority.”

Marty Lederman, Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless (Dec. 20, 2005)

“1. Because it’s not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place — which is why the Administration could not work within the existing (very deferential, pro-government) authorities.

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not “those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”

3. It’s also presumably not a “fundamental incident of war” for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program.”

Read More

6

Wikipedia Irony: Jimmy Wales Edits His Own Entry

Wikipedia.jpgA story in Wired reveals that Jimmy Wales, the founder of Wikipedia, has been editing his own Wikipedia entry:

Public edit logs reveal that Wales has changed his own Wikipedia bio 18 times, deleting phrases describing former Wikipedia employee Larry Sanger as a co-founder of the site.

The changes were reported Monday by technology writer Rogers Cadenhead on his blog, Workbench, spurring Sanger to launch a dialogue on Wikipedia about revisionist history.

In an interview with Wired News, Wales acknowledged he’s made changes to his bio, but said the edits were made to correct factual errors and provide a more rounded version of events.

While he said that Wikipedia generally frowns on people editing entries about themselves, there is no hard and fast rule against it.

“People shouldn’t do it, including me,” he said. “I wish I hadn’t done it. It’s in poor taste…. People have a lot of information about themselves but staying objective is difficult. That’s the trade-off in editing entries about yourself…. If you see a blatant error or misconception about yourself, you really want to set it straight.”

According to technology writer Cadenhead, who ferreted out the record of changes, Wales has altered sentences that gave Larry Sanger credit for co-founding Wikipedia seven times.

Recently, Adam Curry got shamed across the blogosphere for editing part of an entry pertaining to himself.

Should people be editing or creating entries for themselves in Wikipedia?

On the one hand, people’s self-interest might prevent them from editing objectively. People also might use Wikipedia as a kind of vanity press of sorts, creating entries about themselves filled with praise. I’m actually surprised that there isn’t more of this going on, as it can be quite flattering to have an entry for oneself or one’s organization in Wikipedia.

One the other hand, who knows better about Jimmy Wales than Jimmy Wales? If the people actually involved in various entries are shamed into not being able to edit them, we lose a valuable source of information.

Related Posts:

1. Wiki Thyself

2. Other posts about Wikipedia are collected in the Wiki Category Archive

1

What Else?

question.jpgCongress is gearing up to investigate the NSA domestic surveillance program. That’s better than Congress doing nothing—but it doesn’t give much reason to cheer. The NSA program is only one of a recent series of disturbing revelations about the Administration and the war on terror: detention of suspects with little or no process; secret prisons in Europe; people being hooded, stuffed in planes, and delivered to foreign governments; and, quite possibly, the use of torture.

If Congress is serious about checking Presidential powers, it needs to look far beyond what it already knows has taken place.

Rather than simply get to the bottom of domestic surveillance, Congress needs to get a better handle on what else the Administration is doing and plans to do in this war.

At this point, very little seems unimaginable. Are there, for instance, American citizens held secretly in this country or abroad? What kinds of interrogation techniques have American officials practiced and what are they trained to do? What plans are currently in place to get information from a captured suspect in the event of a ticking bomb? Are other agencies involved in spying without warrants? Have people been removed from the United States without a hearing? Under what circumstances are detainees denied counsel? Has the government asked anybody to give up U.S. citizenship in exchange for dismissing criminal charges?

Have family members of a suspect been taken into custody to exert pressure on the suspect? Has there been spying on leaders of political organizations or members of government? Who will be rounded up in the event of another attack? Is there a plan for martial law?

Congress has the resources to explore these kinds of issues. Congress might of course—and, to a large extent, it probably should—conduct its investigation without revealing what it finds to the general public.

But the bottom line is this: when all is said and done, history must show that whatever happened in the war on terror, Congress knew about it and gave approval.

7

NSA Surveillance: Blog Post Roundup

There is a lot of great analysis and opinion in the blogosphere regarding Bush’s authorization of warrantless NSA surveillance. Here are some useful links:

News Articles

James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts (N.Y. Times, Dec. 16, 2005) (original article to break the story)

Scott Shane, Behind Power, One Principle as Bush Pushes Prerogatives (N.Y. Times, Dec. 17, 2005)

Peter Baker, President Acknowledges Approving Secretive Eavesdropping (Wash. Post, Dec. 18, 2005)

AP, Bush Says U.S. Spy Program Is Essential and Legal (AP, Dec. 19, 2005)

Statutes, Cases, and Other Materials

Foreign Intelligence Surveillance Act (FISA) (1978)

Authorization for Use of Military Force (Sept. 14, 2001)

Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence (Dec. 19, 2005)

United States v. United States District Court, 407 U.S. 297 (1972) (aka the Keith case) (Fourth Amendment analysis of national security surveillance)

Hamdi v. Rumsfeld, 124 S. Ct. 981 (2004) (analysis of the scope of authority granted by Congress’s Authorization to Use Military Force)

Blog Posts (in no particular order and by no means comprehensive)

Orin Kerr, Legal Analysis of the NSA Domestic Surveillance Program (Dec. 19, 2005)

“My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don’t know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.”

(This is the most lengthy and detailed analysis to date.)

Orin Kerr, Domestic Surveillance by the NSA? (Dec. 15, 2005)

“While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff.”

Read More

21

Beyond His Power: Bush’s Authorization of Warrantless NSA Surveillance

NSA2a.jpgIn this post, I aim to explore more in depth whether Bush had the legal power to authorize warrantless NSA surveillance. As I was putting the finishing touches on this post, I noticed that Orin Kerr beat me to the punch, and I find that we’ve identified the same issues and are in substantial agreement. His post is a lot longer and more detailed than mine (which is quite long itself), so read mine for a broader overview and Orin’s for the treatise-length account.

1. Fourth Amendment

The Fourth Amendment standards are somewhat vague. The Supreme Court declared in United States v. United States District Court, 407 U.S. 297 (1972) (often called the Keith case) that the Fourth Amendment required a warrant for the government to engage in electronic surveillance for domestic criminal investigations. However, the Court noted:

. . . [D]omestic security surveillance may involve different policy and practical considerations from the surveillance of “ordinary crime.” The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. . . . Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government’s preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime. . . . .

Different standards [for gathering domestic security intelligence] may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection.

Read More

1

Welcome to the Google-Borg

USAToday.com is running a banner headline today for an article: “Google becoming an auxiliary brain.” Here’s the article, and here’s the thesis of the reporter, Elizabeth Weise:

If we are the sum total of our knowledge and experiences, then the Internet is a collection of other people’s knowledge and experiences. And Google — so ubiquitous that it has become its own verb — allows us to tap into that collection.

I generally enjoyed reading this, and it’s way too easy to nitpick USA Today, but here are a few reactions:

1) It’s a pretty clear example of the cyborg trope isn’t it? Google isn’t billed as just a novel information source, like a television, it’s billed as a “brain” — a technological extension of human biology. And like the brain of the Star Trek Borg, it is a collective mind we now share. This collective brain-sharing is billed not as scary, but nifty.

2) Despite the excerpt above, if you read this, Google appears to be getting a great deal of credit for the Web itself. Throughout, Weise’s language makes this an article about Google as information repository, not as search provider. To be clear: Larry, Serge, and company built a great search tool that helps you find information that other people put on the Web (and one that hands you an advertisement along the way).

3) In somewhat of a contradiction, it appears that people who provide information on the Web are not to be trusted. Weise quotes a research librarian from Georgia:

And even when malicious intent isn’t the problem, mastery of a subject can be, says Jacobson. “The opinions that get heard are from people who have a lot of time to create websites, not necessarily the people with the best information.”

Can’t trust those people who have time to create websites, can you? Oh wait — isn’t that the definition of my Googlebrain? What is curious is that the answer seems to be no, because this comment doesn’t follow the discussion of Google, but… Wikipedia. So Wikipedia is less trustworthy than the Web (aka “Google”)? Oh well.

Further reading: Danah Boyd on the Seigenthaler fuss.

6

Should Google, Yahoo, and Microsoft Help China Filter Searches?

china1a.bmpAn interesting article from Salon discusses how Google, Yahoo, and Microsoft assist the Chinese government with censorship. The companies filter out search results that the government wants to censor, and they help the government track down individuals engaging in criticism and dissent:

To conduct business in China, popular Internet companies Yahoo, Microsoft and Google have had to accommodate a regime that forbids free speech, bars political parties and jails journalists. This means filtering searches on their sites, censoring news and providing evidence in the trials of political dissidents — or risk having their sites blocked in China. Forced to choose between ignoring the world’s hottest market or implicitly endorsing a system of censorship that a recent Harvard study called “the most sophisticated effort of its kind in the world,” the companies have decided to cooperate.

“Business is business,” Jack Ma, CEO of Alibaba.com, which controls Yahoo China, told the Financial Times. “It’s not politics.”

How do companies cooperate? The article explains:

Read More