I had no knowledge of the NSA’s programs, but I’m not surprised by most of it.  James Bamford articulated in The Puzzle Palace in 1980 what the NSA was capable of, and it has always been clear to me that they would establish whatever intelligence capabilities they could in order to carry out their mission.  There are several areas that raise substantial concerns:

1.  NSA’s own documents indicate that they intended to interfere with and degrade crypto standards.  That on its own has caused the agency substantial harm to its reputation that will take decades to recover from.  But they haven’t just sullied their own reputation but that of the National Institutes of Standards and Technology (NIST) who are a true braintrust.  Furthermore, they’ve caused the discounting in the discourse of anyone who is technology knowledgeable who have either recently held or currently hold government posts.  I will come back to this issue below.

2.  It is clear that the FISA mechanism just broke down, and that its oversight entirely failed.  Neither Congress nor the Supreme Court took its role seriously.  They all gave so much deference to the executive because of that bugaboo word “terrorism” that they failed to safeguard our way of life.  That to me is unforgivable and I blame both parties for it.  In fact I wrote about this risk on September 12, 2001.  I wrote then:

I am equally concerned about Congress or the President taking liberties with our liberties beyond what is called for. Already, millions of people are stranded away from their loved ones, and commerce has come to a halt. Let’s not do what the terrorists could not, by shrinking in fear in the face of aggression, nor should we surrender our freedom.

Sadly, here we are.

3. There are reports about law enforcement taking intelligence information and scrubbing the origin.  Where I come from we call that tampering with evidence in an egregious attempt to get around those pesky 4th and 5th amendments.

4. The NSA’s activities have caused great harm to U.S. services industry because other nations and their citizens have no notion as to when their information will be shared.  This is keenly true for companies such as Google and Microsoft who, it is reported, were ordered to reveal information.  The great Tip O’Neill said that all politics is local.  That may be true, but in a global market place, all sales are local.

It would be wrong to simply lay blame on the NSA.  They were following their mission.  Their oversight simply failed.  Congress needs oversight.  That is our responsibility.

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Should you go to prison just for lying?

I tell my child, as we all tell our children, that lying is wrong.  A lot of things are wrong.  But does that mean you should go to federal prison?  Guess what: that is exactly what can happen if you lie in a federal investigation.  What’s more, you might not even know that there’s an investigation!  Today’s Wall Street Journal has as the next installment in its serious of the criminalization of America the woeful tale of marine biologist Nancy Black, is facing a $100,000 legal bill and criminal charges for lying, when she didn’t know there was an investigation, and she didn’t believe she was either lying or misleading anyone.  In fact she thought she was cooperating with someone from the National Oceanic and Atmospheric Administration (NOAA).

How could this be?  Here is what 18 USC 1001 has to say:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(2) makes any materially false, fictitious, or fraudulent statement or representation; or
(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

The breadth of this law is staggering, and the results could be perverse.  While the jury should have a good view of this, why would anyone not assert their 5th amendment rights when talking to anyone from the federal government?  After all, who knows if there’s an investigation?  Want to end up with a $100,000 legal bill finding out?

This is a law that prosecutors under administrations of both parties have used.  So what should it say?  Perhaps there needs to be a tie to a conviction of an actual crime we care about.  Perhaps the standard otherwise needs to be such that only sworn statements are applicable, in which case isn’t the existing purgery law enough?  And it has the added benefit of putting someone on notice that they could be held accountable for lying.

 

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As if they read my blog…

The Wall Street Journal has a follow-up today that talks about how police track our locations with our cell phones.  Now, answering one of my own questions, thanks to some discussion with my wife, what is the difference between using a GPS tracker and a cell phone?

First, of course you can always turn off your cell phone.  Because you know you are being tracked, you have a means to defend your privacy.  Is it a reasonable means?  I would argue “no”.  In addition, the feds do not own the data.  Instead they have to go to the phone companies to get it.  And they do that quite a bit more than using GPS trackers, according to the article.  And why not?  You pay for the cell phone and your carrier retains the data.  It’s darn cheap for the police to make use of all of that rather than have to pay for the tracker and manage it.

There’s another big difference that I alluded to.  Police in America do get a court order for cell phone location information.  This is why I believe the Obama administration should fail.  It is not an onerous task, judging by numbers, to get such an order, and since it isn’t, the onus falls on the administration to show why they shouldn’t make use of the exact same mechanism when the technology changes.

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GPS and the 4th Amendment: Can police track you without your knowledge?

Does the government have the right to know where you are at all times?  This is a question that will be answered by the Supreme Court over the next year.  The Wall Street Journal reports that the Supreme Court will examine today a case in which the police and the FBI attached a GPS tracking device to the car of a night club owner who was suspected of dealing drugs.  At issue is whether this constituted an unreasonable search or seizure by the government, a violation of the Fourth Amendment of the U.S. Constitution.

As the article points out, the Fourth Amendment protects us only from the government eye when there is some reasonable expectation of privacy.  That which occurs on the street in plain view is not usually considered private.  However, in this case, the question is whether the body of evidence gathered by the police would be considerably more than just some onlooker happening to see you at a particular point in time.  Instead, it would be more like an concerted army of people following you 24 hours per day for as long as the GPS unit were in place.

From a technology perspective, while it may be possible to detect such tracking devices, it might prove very difficult.  For one thing, there’s no reason the device would need to signal to the police every moment of the day where it is.  Rather it could store the information and transmit it only periodically.

What’s more, we all carry tracking devices with us nearly 24 hours per day.  They’re called cell phones.  While some use GPS, the cell phone network knows where you are (or at least where your phone is), with or without GPS.

Here are my questions:

  1. Does the government need a warrant to receive cellular network location data?  If so, what is the difference between cellular network location data and GPS tracking data?
  2. If the government has the right to install a tracking device, assuming you could find the device, do you have the right to remove it?  After all, it is your vehicle.
  3. If the government has the right to track you via GPS, can others do the same?  What is to stop insurance companies, employers, or criminals from tracking you?

It’s the first question I find most profound, because if the government is allowed to attach these devices to you without a warrant, without any cause, they can follow anyone from anywhere to anywhere at any time, from birth to death.  In fact, they could create an enormous database to simply keep track of the location of everyone.

This is not to say that the government shouldn’t track people it reasonably believes to be criminals.  That is why the judiciary exists- to provide oversight over the process so that peoples’ rights can be balanced.

One final scary thought: such a database might already exist, and might be in the hands of criminals.  As I wrote above, cellular companies already know where you are.  If they’ve been hacked and don’t know it, who knows where that data resides?

 

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House Republicans Read the Constitution

That’s right.  On day 2 of their rule in the House, the AP reports that House Republicans will read the U.S. Constitution.  Better late than never, I suppose.  Of course I would like a reading comprehension test to follow.  Let’s hope that they don’t read the Constitution off an iPod/iPhone app.  When President Obama did his recess appointments last week, I wanted to review Article II (Powers of the President), and it was at that point I thought I should carry a pocket version.  I’ll leave out the names of the guilty, but one free version had truncated each of the articles, and another free version omitted Article II entirely.  That’s probably the version Congress would enjoy.  Fortunately the National Constitution Center in Philadelphia has done a very nice job on theirs.  Funnily enough, however, the Constitution is not accessible from their home page.  Here’s a link to Cornell that I like.

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