Category Archives: Privacy

Some Thoughts on the PRISM “Fact Sheet”

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DNI James Clapper, over the weekend, declassified and released a Fact Sheet on the just revealed PRISM project.  PRISM is represented as an internal government IT program whose purpose is to gather

foreign intelligence information from electronic communication service providers under court supervision, as authorized by Section 702 of the Foreign Intelligence Surveillance Act….

under which

All such information is obtained with FISA Court approval and with the knowledge of the provider based upon a written directive from the Attorney General and the Director of National Intelligence.  In short, Section 702 facilitates the targeted acquisition of foreign intelligence information concerning foreign targets located outside the United States under court oversight.

As some might expect, I have some thoughts on the program as described in the Sheet.

The Fact Sheet first addressed in general terms the collections themselves.

The “provider” (Yahoo!, Facebook, et al.) is required to provide the data, but the source of the requirement is confusing to me.  FISA Court approval (I’ll elide how we know, given the secrecy of the Court and associated proceedings, that the Court approved, or under what parameters), but direction of the AG and the DNI, is my point of confusion here: is the requirement a Court order requested by the AG/DNI, or is it an order by the AG/DNI that is merely sanctioned by the Court?  In the open world of police work and prosecuting attorneys, neither the police nor the prosecutor can direct a man to submit to a search that has been sanctioned by a court.  The search has to be pursuant to a warrant explicitly issued by the court, albeit in response to request for one by the police/prosecutor—and supported by a showing of probable cause.

Next, must the AG and the DNI jointly request/order delivery of the information, or can either do this?

On the matter of targeting (there’s that term…) individuals:

The Government cannot target anyone under the court-approved procedures…unless there is an appropriate, and documented, foreign intelligence purpose for the acquisition (such as for the prevention of terrorism, hostile cyber activities, or nuclear proliferation) and the foreign target is reasonably believed to be outside the United States.

What level of proof must be offered the FISA Court to support an allegation of a foreign intelligence purpose?  Just the bald claim?  Probable cause (which must underlie that other search warrant)?  Some other standard?

Next, what is the definition of “reasonably believed?”

On the matter of oversight:

[T]he notion that…activities are not subject to internal and external oversight is similarly incorrect. Collection of intelligence information…is subject to an extensive oversight regime, incorporating reviews by the Executive, Legislative, and Judicial branches.

How do we know the degree or efficacy of the oversight?  It’s secret.  Note, though, that the dishonesty of the present administration only emphasizes this concern.  It’s government secrecy here that raises the question, not Obama “transparency.”

The Fact Sheet then moved on to the FISA Courts.

All FISA collection…is overseen and monitored by the F ISA Court, a specially established Federal court comprised of 11 Federal judges appointed by the Chief Justice of the United States.

It’s a Federal court whose judges are not vetted and approved by the Senate, as Constitutionally provided.  They seem, then, not to be Article III judges.  How, then can they be Federal judges?

No risks here.

On “targeting” approvals:

The FISC [FISA Court] must approve targeting and minimization procedures…prior to the acquisition of any surveillance information.

How do we know the limits are being honored?  It’s a secret process.

On those minimization procedures:

Minimization procedures [require that] the dissemination of information about US persons is expressly prohibited unless it is necessary to understand foreign intelligence or assess its importance, is evidence of a crime, or indicates a threat of death or serious bodily harm.

Whose judgment of necessity?  Is the FISA Court involved in this subsequent determination, or are these judgments left to the Intelligence community?

The Fact Sheet then moved to the other government branches’ involvement.

On Congress’ involvement:

The DNI and AG provide exhaustive semiannual reports assessing compliance with the targeting and minimization procedures.

How do we know the reports are truthful?  The underlying data are classified.  Moreover, given the blatant stonewalling of this administration concerning the provision of data and testimony concerning the IRS, Fast and Furious, the free press attacks, the Benghazi disaster, and so on, on what basis do we conclude the underlying data would be available to a classified Congressional hearing in a timely manner?  Note that the stonewalling of the present administration only emphasizes this concern.  It’s government secrecy here that raises the question, not Obama “transparency.”

On the Executive Branch leadership involvement:

The Executive Branch, including through its independent Inspectors General, carries out extensive oversight…which includes regular on-site reviews of how…authorities are being implemented.

We’ve seen the…effectiveness…of two of the Executive Branch’s Inspectors General: State’s vis-à-vis Benghazi and Treasury’s vis-à-vis the IRS.  Moreover, on what basis do we believe that IG reports on a classified operation or series of operations will be readily available, even to a classified Congressional hearing?

The Fact Sheet concluded with a short series of claimed successes under PRISM (without providing any substantiation for the claims).  Suppose, though, the claims are true.  See this for some thoughts on surveillance vs freedom.

In the end, though, it comes down to trust, since some activities must be carried out at the expense of individual liberty—those search warrants, for instance—and some activities must be done in secret in order to avoid tipping off the enemy.

Trust is a terrible thing to have wasted.

Surveillance vs Freedom

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It is an either/or case.  We can’t have our individual freedoms with Government looking over our shoulders all the time.

To be sure, whenever men form a social compact led by a consensual government, we give up a small measure of our freedoms to that government to enable it to help us protect our freedoms.  This protection includes protecting for us that component of our freedom given over to our government for the purpose.  But that’s voluntary at the time of the compact’s formation, and it does not authorize the consensual government to arrogate ever more of our liberties—or of our responsibilities—to itself on its claimed need.

When Government does such usurping, even “for the greater good” (how Benthamite is that?), that can only come at the direct expense of individual liberty.  After a very low threshold, the trade-off becomes a zero-sum game.

“Surveillance” foiled a train plot, says an intel official.  I’ll elide here the questionable circumstances of this claim by a carefully anonymous official.*

Tim Murphy, a former No. 2 official at the FBI, says the programs [emphasis added]

have been successful in connecting the dots [to prevent attacks].  I can positively say, because of programs like this, people were identified in this country with terrorist ties, and we were able to stop possible attacks[.]

(Never mind that this logic is invalid, in the minds of many, when used to argue against gun control laws.)

On the other hand, alert citizens foiled a bomb plot in New York City.  Courageous citizens foiled an airliner-as-bomb attack on the White House.  Incompetence foiled an airliner bomb plot over Detroit.

We’ve also seen, further, that “surveillance” has been used to make direct attacks on individual Americans and groups who disagree with the present administration.  “Surveillance” has been used to directly and overtly attack our free press and individual members of that facility.  “Surveillance” also has been used to turn over personal information of American individuals and groups to foreign countries—even when the citizens or groups are wholly unrelated to the subject of the…investigation…but are simply caught in the Government’s generalized dragnet:

[T]he British government has also been secretly gathering intelligence from US Internet companies via the US National Security Agency data-mining project.

President Barack Obama has insisted this broad surveillance isn’t Big Brother in action, but then he said,

[T]he modest encroachments on privacy that are involved in getting phone numbers and duration without a name attached and not looking at content, that on net it was worth us doing[.]

Phone numbers without names is an utterly disingenuous claim to make.  It’s child’s play to attach a name to a number after the number has been collected.  See White Pages, for instance, and Get Human, and Spokeo.  Those are just some of the publicly available sources.

Next, how do we know Government isn’t “looking at content?”  The process is secret.  Further, we know Government is looking at content through PRISM; that’s the purpose of that blanket surveillance.

As even The New York Times is beginning to figure out,

The administration has now lost all credibility on this issue.

With the demonstrated dishonesty of the present administration (in truth, the dishonesty isn’t unique to this administration—which emphasizes the danger—this one’s transgressions are just the present and most publicized ones), how is it possible to accept Government assurances of “trust us?”

James Clapper, Director of National Intelligence, who declassified information about the programs this past week so he could defend their use, warned: “Discussing programs like this publicly will have an impact on the behavior of our adversaries and make it more difficult for us to understand their intentions.”

That’s certainly a risk we run in an open, and so free, society.  The obverse, however, of keeping such invasive programs secret and away from the public’s discourse is a far more terrible risk to our security.

Again: there is no balancing our individual liberties with our security.  Additionally, the Constitution doesn’t protect our liberties “except when Government asserts a greater need.”  We have no security without our liberties.  There is a need for surveillance, under certain closely specified conditions; however, there cannot be surveillance and freedom under Obama’s cynical “trust us” conditions.

 

* This official is behaving suspiciously along two dimensions: he’s making a “trust government” claim, and he’s saying “trust me” while telling us things he’s not authorized to tell us.  On what basis do we believe him?

It Doesn’t Get Much More Naked Than This

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Recall Connecticut’s recently passed extensive gun ban law, a bill passed in the emotional aftermath of the Newtown shootings.  Essentially, it banned firearms the State’s government has defined as “assault” weapons.

Last Monday, the legislature “tweaked” that bill to “clear up confusion;” Governor Dannel Malloy (D) is expected to sign it.  One of the tweaks cleared up confusion surrounding the legal possession of these weapons that had been on order before the original legislation was signed into law but not received until after enactment.  Such firearms can now be legally possessed.

It’s another tweak that’s of interest here, though: this one expanded the list of those who can legally acquire these “assault” weapons, now that the gun ban law has been enacted:

  • sworn and certified officers at the department of motor vehicles
  • the chief state’s attorney office
  • the department of energy and environmental protection
  • some constables with police certification

Additionally, the tweak

  • exempts [the above] officers from the certificate requirement for long gun ownership
  • allows them to [retain their “assault”] weapons and large capacity magazines after their service ends by registering them.

Notice that: the citizenry are being denied the ability to possess weapons adequate for their own purposes (an inalienable right and a right acknowledged by the 2nd Amendment), but a broadened list of government officials is granted the ability to possess “assault” weapons.

State Senator Joe Markley (R) is on the right track, but he was a lone voice in the Connecticut wilderness:

I think if we acknowledge that we are putting law enforcement officers at risk by limiting their ability to defend themselves [thus, the allowed expansion of weapons possessions], I think we have to acknowledge that we’re putting homeowners at risk by limiting their ability to defend themselves.

Now why would a government seek to disarm the citizenry while expanding its own arsenal?

Hmm….

A Moral Question

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Dr Paul McHugh has one, in particular concerning Vermont’s just enacted Patient Choice and Control at End of Life Act, which authorizes physician-assisted suicide, and to which he objects.

As McHugh points out,

The reasons for opposing…physician-assisted suicide never went away.  The reasons have been with us since ancient Greek doctors wrote in the Hippocratic oath that “I will neither give a deadly drug to anybody if asked for it nor will I make a suggestion to that effect.”  The oath is a central tenet in the profession of medicine, and it has remained so for centuries.

Indeed, the reasons are both wide ranging and of long standing.  And wholly valid, for those who agree with McHugh.  However, these are all moral reasons, and morality is an arena in which government has no place, any more than it has a place dictating or preventing the exercise of religion—for it is through religion that most of us find our morals, including on the matter of suicide, physician assisted or otherwise.

Such morals are among (in the present example) the patient, those who love him (and where appropriate have control over his fate), the doctor involved, and God.  This is no place for government.

Moreover, nothing in Vermont’s law requires a doctor to participate in a patient’s suicide; the law only permits him to.  If a doctor considers such a participation to be immoral, or for any other reason he does not wish to participate, he remains free to decline.

But, but—economic pressures will force him to participate, or public opprobrium will force him to do so.  Nonsense.  Eliding, for instance, the fact that the widespread support for McHugh’s position demonstrates that opprobrium will be balanced with approbation, a doctor who allows himself to be pushed into an act he considers immoral—or allows himself to be pushed into overriding that “any other reason”—is not a victim of an absent law, but only of the weakness of his own morality.

A Thought on the IRS

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Peggy Noonan wants an investigation into the IRS and its behavior over the last few years.  She has ample justification for one:

We do not know who ordered the targeting of conservative groups and individuals, or why, or exactly when it began.  We don’t know who executed the orders or directives. We do not know the full scope or extent of the scandal.  We don’t know, for instance, how many applicants for tax-exempt status were abused.

We know the IRS commissioner wasn’t telling the truth in March 2012, when he testified: “There’s absolutely no targeting.”  We have learned that Lois Lerner lied when she claimed she had spontaneously admitted the targeting in a Q-and-A at a Washington meeting.  …  We know the tax-exempt bureau Ms Lerner ran did not simply make mistakes because it was overwhelmed with requests—the targeting began before a surge in applications.  And Ms Lerner did not learn about the targeting in 2012—the IRS audit timeline shows she was briefed in June 2011.  She said the targeting was the work of rogue agents in the Cincinnati office.  But the Washington Post spoke to an IRS worker there, who said: “Everything comes from the top.”

And, she points out that we know about Catherine Engelbrecht.  We also know that the weight of the targets do not support the premise of this being simply an inability by low-level IRS employees to interpret the relevant tax law—”they” interpreted it, in Noonan’s words, “with a vengeance.”  And we know who “they” is: as a worker in the IRS’ Cincinnati office told the Washington Post,

Everything comes from the top.  We don’t have any authority to make those decisions without someone signing off on them.  There has to be a directive.

“The top” would include Lerner, who after denying any wrong-doing then pled the 5th in an effort to prevent anyone questioning whether that was true.  “The top” would include the ex-IRS Commissioner Douglas Schulman, who lied to the House of Representatives when he testified that there was no targeting going on—even as it then was going full tilt.  “The top” would include soon-to-be ex-Acting IRS Commissioner Steven Miller, who actively stonewalled, if not outright lied to, the House during his own testimony.

Noonan wants an investigation, a dead serious one:

The IRS has colorfully demonstrated that it cannot investigate itself.  The Obama administration wants the FBI—which answers to Eric Holder’s Justice Department—to investigate, but that would not be credible.  The investigators of the IRS must be independent of the administration, or their conclusions will not be trustworthy.

An independent counsel, with all the powers of that office, is what we need.

As she says, if the IRS isn’t stopped now, it never will be.  But an independent investigation also will meet with stonewalling and delay—and we have two critical national elections coming up in 2014 and 2016, short one and three years away.

What’s needed is a complete elimination of the IRS and a new agency put into its place— with today’s IRS incumbents, at all levels, ineligible to apply for work there.  (Separately, but just as critically, a total reform of our tax code into a simple flat rate, no exceptions system is necessary—which would dovetail nicely with replacing the present IRS with a much smaller, simpler tax collection agency.)  Unfortunately, this both is no more likely to happen than a serious investigation, and it also will take time.

Which puts a premium on getting started.