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peristaltorJust to get the disclosures out of the way . . . as most of you know I would consider myself a left-leaning libertarian on the issue of government surveillance and what should and should not be allowed. Ah, but now I'm not as certain as once I was. I've just finished Shane Harris' The Watchers: The Rise of America's Surveillance State. It turns out the surveillance issue is not as cut and dried, not as black or white, good or evil, as the scanty media coverage has managed to convey.
For example, take wiretapping. Back in the good ol' days, a wire was connected at a telephone exchange to a very specific wing nut. Each wing nut on these switchers connected to an individual telephone line. Once that line was tapped with that wire, every time the telephone on the other end of that wire was picked up a recorder started documenting the phone's activity. The system was so specific as to be almost foolproof (unless one considers party lines, but perhaps that is another story).
`
Let's say the local police had good reason to suspect Mr. X of wrongdoing, and were making a case against him. They would compile the evidence behind these suspicions and go to a local judge, who would either deny or (more probably) grant the request to have Mr. X's phone tapped. Thus the executive branch of our government (the police) would have to seek permission from the judicial system (the courts and judges) to investigate an individual they suspected of breaking the laws passed by the legislative branch (national and state congresses). Ah, the separation of powers. That's how it should work.
But Mr. Harris points out in his book that this system is not exactly broken, but not exactly functioning, either. One cannot tap a wire anymore. The phone systems have kept up with the times and gone digital. There are no wing nuts conveniently located for the wire to tap. Phone calls get shuttled across the same wires and fiber cables as the LJ post you're reading right now. The law has been broadened to include phones used by individuals under surveillance; but in the age of disposable and one-use cell phones, voice mail drops, call scramblers and all the other goodies we have created, how does one in the executive branch "tap" the needed phone?
The answer is fairly simple, really. Think of an investigation as a fishing trip, where fish is not an individual but a crime. We Sunday fishers are most familiar with the simple hook and line. An old style wire tap is just like this hook and line, except every fish has a specific watering hole that they and only they feed. We get a warrant, hook the worm and dangle. If things get fishy, if the surveilled say enough things through the phone to convince a prosecutor to proceed with the case, we set the hook and reel in the fish.
With no specific place for the suspect fish to feed (aka the real world of digital communications) this analogy is fatally flawed. A better fishing method would be to net all the fish in the area and sort through them to find the fish, the crime, we are seeking, but to let the other un-fishy fish go free. That's the rationale behind warrant-less wiretapping, at least in principal. Law enforcement scoops up all the chatter through all the phones and other devices not because they want to, but because there's really no other way.
Harris notes that Candidate Obama spoke on this subject very differently from President Obama. Why? Probably because of John Brennen, a CIA operative assigned to advise the candidate on security matters and interviewed for Harris' book. Without the wing nuts at the exchanges, other steps simply had to be taken for any surveillance to occur. The president's change in policy might simply reflect that salient fact.
Ah, but here we have the problem: How does a country, one with a grievously divided electorate, broken corporate media, and fatally compromised legislative system update its surveillance laws to reflect the changing technical times?
Sadly, the Bush administration did this by just ignoring the law. Instead of addressing the changed telephone tech, they simply demanded call information from the telcos and severely punished those who dared raise and attempt get clarification for the fuzzy legal questions that existed. In essence, they acted just like the administration whose excesses prompted the toughened legal standard and judicial review in the mid-1970s.
I was discussing my reading with a friend who proves just about the only other person I know who even likes discussing such topics. He is now where I used to be, one who doesn't think the government has any right whatsoever gathering un-warranted conversations and communication. Period. I thought of an analogous situation.
For years, planning agencies have gauged traffic flow by posting people with hand clickers, clipboards and reflective vests on overpasses, or by the less accurate method of those pressure trip hoses which count each time a car runs over them. I've wondered why they didn't just place cameras at strategic locations and make videos of rush hour, using some image processing later to get an exact count. Furthermore, with a bit of refined image and some recognition software, they could get an idea not just of traffic flow along one stretch of highway, but by recognizing individual cars captured over a few days of commute they could get an almost exact pattern of every road driven by the individual commuters. Why not?
According to my friend, they had no right to this information. He may be right, I don't know for sure. I, however, challenged him to cite the statute stating unequivocally that it isn't specifically prohibited. Remember, I reminded him, laws are phrased to prevent specific unwanted behaviors, not to proactively prohibit behaviors no one thinks is a yet problem. Unless some DOT scandal prompted congress to ban visual car tracking, I doubt there's anything stopping the practice on the books.
I continued. Perhaps traffic planning agencies as arms of the executive branch of government can't gather data is such a way, but I wondered aloud why I shouldn't do this, perhaps with a cadre of like-minded info-gatherers. We would not be bound by the same separation of powers legislation that limits the DOT. As private citizens, we could sit with our cameras at overpasses one commute after another and see how many individual cars passed by two or more of our cameras later. I see absolutely nothing wrong with this. Call it a quirky art project, present this gathered data in a suitably cool high- or low-tech display and it could even get NEA funding.
For that matter, I continued, who needs tech? Let's say I was an autistic savant with excellent eyesight. Is there any law preventing me from standing at an overpass without a camera and simply memorizing or recording with some sort of shorthand code the cars as they flow passed? That I highly doubt. That would probably infringe on our freedom of assembly rights and definitely on our freedoms of expression and speech.
Any lawyers out there reading should feel free to chime in with statutes that may or may not cover the above scenarios. As usual, I'm genuinely curious.
After reading Harris' book, I now realize that in the digital age the flow of our electronic communication is exactly analogous to our transportation flow. Both take place on a combination of public and private infrastructure, our roads and cables, especially those cables designated as common carriers. Considering the FCC might broaden what constitutes a common carrier today -- a move I for one would welcome, since it would become a de facto tool for enforcing net neutrality -- this question becomes more and more relevant.
So, what should we do? I honestly don't know. I'm all for preserving the separation of powers and avoiding yet another president who doesn't respect the letter and spirit of the law. Harris spent quite a bit of his book interviewing the man who developed what I think might work, a program that anonymizes personal data, allowing data analysts progressive clarity into the personal information only when they detect patterns in the data flow. This program also tracked analyst activity, watching the watchers, as it were, in case later events dictate an investigation. That program was also killed, at least in its pure form. It was moved off the budget of one department, but revived by another under a black budget immune to congressional review. All of the anonymizing qualities the original program lent the data, as well as the analyst tracking, were lost in the transition. Bottom line; the US now has an enormously powerful surveillance system that is accountable to no one.
I'll give Harris the final word.
For example, take wiretapping. Back in the good ol' days, a wire was connected at a telephone exchange to a very specific wing nut. Each wing nut on these switchers connected to an individual telephone line. Once that line was tapped with that wire, every time the telephone on the other end of that wire was picked up a recorder started documenting the phone's activity. The system was so specific as to be almost foolproof (unless one considers party lines, but perhaps that is another story).
`
Let's say the local police had good reason to suspect Mr. X of wrongdoing, and were making a case against him. They would compile the evidence behind these suspicions and go to a local judge, who would either deny or (more probably) grant the request to have Mr. X's phone tapped. Thus the executive branch of our government (the police) would have to seek permission from the judicial system (the courts and judges) to investigate an individual they suspected of breaking the laws passed by the legislative branch (national and state congresses). Ah, the separation of powers. That's how it should work.
But Mr. Harris points out in his book that this system is not exactly broken, but not exactly functioning, either. One cannot tap a wire anymore. The phone systems have kept up with the times and gone digital. There are no wing nuts conveniently located for the wire to tap. Phone calls get shuttled across the same wires and fiber cables as the LJ post you're reading right now. The law has been broadened to include phones used by individuals under surveillance; but in the age of disposable and one-use cell phones, voice mail drops, call scramblers and all the other goodies we have created, how does one in the executive branch "tap" the needed phone?
The answer is fairly simple, really. Think of an investigation as a fishing trip, where fish is not an individual but a crime. We Sunday fishers are most familiar with the simple hook and line. An old style wire tap is just like this hook and line, except every fish has a specific watering hole that they and only they feed. We get a warrant, hook the worm and dangle. If things get fishy, if the surveilled say enough things through the phone to convince a prosecutor to proceed with the case, we set the hook and reel in the fish.
With no specific place for the suspect fish to feed (aka the real world of digital communications) this analogy is fatally flawed. A better fishing method would be to net all the fish in the area and sort through them to find the fish, the crime, we are seeking, but to let the other un-fishy fish go free. That's the rationale behind warrant-less wiretapping, at least in principal. Law enforcement scoops up all the chatter through all the phones and other devices not because they want to, but because there's really no other way.
Harris notes that Candidate Obama spoke on this subject very differently from President Obama. Why? Probably because of John Brennen, a CIA operative assigned to advise the candidate on security matters and interviewed for Harris' book. Without the wing nuts at the exchanges, other steps simply had to be taken for any surveillance to occur. The president's change in policy might simply reflect that salient fact.
Ah, but here we have the problem: How does a country, one with a grievously divided electorate, broken corporate media, and fatally compromised legislative system update its surveillance laws to reflect the changing technical times?
Sadly, the Bush administration did this by just ignoring the law. Instead of addressing the changed telephone tech, they simply demanded call information from the telcos and severely punished those who dared raise and attempt get clarification for the fuzzy legal questions that existed. In essence, they acted just like the administration whose excesses prompted the toughened legal standard and judicial review in the mid-1970s.
I was discussing my reading with a friend who proves just about the only other person I know who even likes discussing such topics. He is now where I used to be, one who doesn't think the government has any right whatsoever gathering un-warranted conversations and communication. Period. I thought of an analogous situation.
For years, planning agencies have gauged traffic flow by posting people with hand clickers, clipboards and reflective vests on overpasses, or by the less accurate method of those pressure trip hoses which count each time a car runs over them. I've wondered why they didn't just place cameras at strategic locations and make videos of rush hour, using some image processing later to get an exact count. Furthermore, with a bit of refined image and some recognition software, they could get an idea not just of traffic flow along one stretch of highway, but by recognizing individual cars captured over a few days of commute they could get an almost exact pattern of every road driven by the individual commuters. Why not?
According to my friend, they had no right to this information. He may be right, I don't know for sure. I, however, challenged him to cite the statute stating unequivocally that it isn't specifically prohibited. Remember, I reminded him, laws are phrased to prevent specific unwanted behaviors, not to proactively prohibit behaviors no one thinks is a yet problem. Unless some DOT scandal prompted congress to ban visual car tracking, I doubt there's anything stopping the practice on the books.
I continued. Perhaps traffic planning agencies as arms of the executive branch of government can't gather data is such a way, but I wondered aloud why I shouldn't do this, perhaps with a cadre of like-minded info-gatherers. We would not be bound by the same separation of powers legislation that limits the DOT. As private citizens, we could sit with our cameras at overpasses one commute after another and see how many individual cars passed by two or more of our cameras later. I see absolutely nothing wrong with this. Call it a quirky art project, present this gathered data in a suitably cool high- or low-tech display and it could even get NEA funding.
For that matter, I continued, who needs tech? Let's say I was an autistic savant with excellent eyesight. Is there any law preventing me from standing at an overpass without a camera and simply memorizing or recording with some sort of shorthand code the cars as they flow passed? That I highly doubt. That would probably infringe on our freedom of assembly rights and definitely on our freedoms of expression and speech.
Any lawyers out there reading should feel free to chime in with statutes that may or may not cover the above scenarios. As usual, I'm genuinely curious.
After reading Harris' book, I now realize that in the digital age the flow of our electronic communication is exactly analogous to our transportation flow. Both take place on a combination of public and private infrastructure, our roads and cables, especially those cables designated as common carriers. Considering the FCC might broaden what constitutes a common carrier today -- a move I for one would welcome, since it would become a de facto tool for enforcing net neutrality -- this question becomes more and more relevant.
So, what should we do? I honestly don't know. I'm all for preserving the separation of powers and avoiding yet another president who doesn't respect the letter and spirit of the law. Harris spent quite a bit of his book interviewing the man who developed what I think might work, a program that anonymizes personal data, allowing data analysts progressive clarity into the personal information only when they detect patterns in the data flow. This program also tracked analyst activity, watching the watchers, as it were, in case later events dictate an investigation. That program was also killed, at least in its pure form. It was moved off the budget of one department, but revived by another under a black budget immune to congressional review. All of the anonymizing qualities the original program lent the data, as well as the analyst tracking, were lost in the transition. Bottom line; the US now has an enormously powerful surveillance system that is accountable to no one.
I'll give Harris the final word.
We no longer live in a world where we can reasonably expect certain personal information to remain private. and we have never lived in a country where the government willingly restrains itself from collecting, analyzing, and disseminating the information about our lives, our associations, and our thoughts. The intelligence surveillance laws and regulations of the late 1970s were short-lived. They were created in reaction to unquestionable abuses of power, but they began to prove their technical inadequacy in less than a decade. They have also been obsessed with regulating the collection of information rather than how it is used, which is the more important component of the intelligence system. Our elected officials could have rolled up their sleeves and dived into this complicated legal bramble, and we might have been better -- and safer -- for it. Instead, they have created laws that tilt the balance of power back to where it has usually been in the realm of national security -- toward the executive branch, and to the president in particular. We have seen the excesses born of this arrangement. But we have never lived in a time when the government has had such remarkable technological ability to watch its own citizens.
(Shane Harris, The Watchers: The Rise of America's Surveillance State, Penguin, 2010, p. 358.)