Wednesday, June 12, 2013

Clapp Trap

Director of National "Intelligence" 
James Unwittingly Inspector Clouseau Clapp

It was rich to witness Clapp's obligatory melodramatic, derisively Harrumphing Indignation when the Snowdon NSA leak thing surfaced. Inconveniently for Mr. Pants on Fire:
 In a March 12 Senate hearing, Sen. Ron Wyden asked Director of National Intelligence James Clapper, "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" Clapper responded, "No, sir... Not wittingly." Since last week, it's become clear that Clapper's statement was not exactly true. Clapper's given a series of interviews to explain the comment, each time getting closer to admitting that what he said was not true. 
"Not wittingly"? Right.

I feel like I'm stuck in Groundhog Day.


Is the 4th Amendment effectively dead?

JUNE 21st UPDATE

Some things are utterly predictable.
Lawyers eye NSA data as treasure trove for evidence in murder, divorce cases
By Bob Sullivan, Columnist, NBC News

The National Security Agency has spent years demanding that companies turn over their data. Now, the spy agency finds the shoe is on the other foot. A defendant in a Florida murder trial says telephone records collected by the NSA as part of its surveillance programs hold evidence that would help prove his innocence, and his lawyer has demanded that prosecutors produce those records. On Wednesday, the federal government filed a motion saying it would refuse, citing national security. But experts say the novel legal argument could encourage other lawyers to fight for access to the newly disclosed NSA surveillance database...

Mission Creep. Coming to a jurisdiction near you soon.

apropos, as I observed back in 2002 while writing about the Homeland Security Act and the proposed "Total Information Awareness" program:
...While HSA contains privacy and data security language restricting the use of TIA-type data to (ill-defined) Homeland Security purposes, we will likely see relentless pressure by law enforcement for access to the information, on the grounds that more effective overall law enforcement via access to TIA data will free up police resources for Homeland Security duties. One need not read far into the HSA to see blurring of enforcement lines. For example, the new Department is directed to

"...monitor connections between illegal drug trafficking and terrorism, coordinate efforts to sever such connections, and otherwise contribute to efforts to interdict illegal drug trafficking." [TITLE I, Section 101(b)(1)(G), page 14]

Given the federal government's simplistic yet relentless media campaign of the past year arguing that "Drug Use Aids Terrorists," well, you get the point (or should).

More generally, under TITLE I, Section 101(b)2), RESPONSIBILITY FOR INVESTIGATING AND PROSECUTING TERRORISM:

"Except as specifically provided by law with respect to entities transferred to the Department under this Act, primary responsibility for investigating and prosecuting acts of terrorism shall be vested not in the Department, but rather in Federal, State, and local law enforcement agencies with jurisdiction over the acts in question." (pp 14-15)

Well, Federal, State, and local law enforcement agencies may well -- perhaps quietly -- argue that they cannot perform their duties pursuant to HSA without access to the integrated, panoptic TIA data repositories. Conveniently, HSA is replete with broad language granting this or that Director or Assistant Secretary discretion over what constitute "reasonable" administrative measures under the Act.

It gets worse. HSA is also peppered with language mandating two-way coordination of activities, communications, and data-sharing with "the private sector." HSA officials are charged with "...creating and fostering strategic communications with the private sector to enhance the primary mission of the Department to protect the American homeland" (page 17), "...creating and managing private sector advisory councils composed of representatives of industries and associations designated by the Secretary" (page 18), "...promoting existing public-private partnerships and developing new public-private partnerships to provide for collaboration and mutual support to address homeland security challenges" (pp 18-19), and so forth...
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AUGUST 13 UPDATE


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NOVEMBER 10th UPDATE

Heard this author interviewed on NPR with Bill Moyers last night. Just bought the Kindle edition of the book.



FOREWORD by Lewis Lapham 

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. —Benjamin Franklin 

The evidence gathered by Heidi Boghosian on the following pages attests to the pathology of an American government so frightened by its own citizens that it classifies them as probable enemies. Suspicious of all forms of unlicensed expression, the custodians of the nation’s conscience find the practice of democracy to be both uncivil and unsafe. Entirely too many people in the room or the parking lot who don’t do what they’re told, don’t swallow their prescribed daily dosages of the think-tank swill slopped into their bowls by the wardens of the corporate security state. 

Such people present the risk of having thoughts of their own, and therefore they must be carefully and constantly watched. How constantly and how carefully is the lesson embedded in Spying on Democracy. Before reading the book I knew that over the last fifty years the U.S. government had been stepping up its scrutiny of a populace that it chooses to regard as a mob. I had yet to appreciate the extent to which the computers have been programmed with the mind of a lunatic conspiracy theorist. 

Heidi Boghosian shows the hydra-headed data banks to be targeted at all sectors of American society, at school-children and the mothers of school-children, at church congregations, credit card members, and Facebook friends, at everybody and anybody at work or at play with the tracking device otherwise known as a cell phone. 

So intrusive is the surveillance that nobody leaves home without it. The clothes sold in both upscale and down-market retail outlets come with radio-frequency ID tags sewn into a stitch or a seam. Thousands of cameras installed in the lobbies of apartment and office buildings (also on roofs and in basements, in movie theaters and barbershops, in the eye sockets of the mannequins in department store windows) register and record the comings and goings of a citizenry deemed unfit to mind its own business. The corporate and political gentry distrust democratic government for its being by definition a work in progress, a never-ending argument between the inertia of things as they are and the energy inherent in the hope of things as they might become. 

The country was founded by people willing to engage the argument. The Protestant dissenters arriving in the early seventeenth century on the shores of Massachusetts Bay brought with them little else except a cargo of contraband words. They possessed what they believed to be clear refutations of the lies told by the lords temporal and spiritual in Europe, and they settled the New England wilderness as an act of disobedience rooted in what they recognized as a “quarrel with Providence.” Translated into the eighteenth-century language of secular politics, the quarrel resulted in the Declaration of Independence and a constitution predicated on James Madison’s notion that whereas “in Europe charters of liberty have been granted by power,” America would set the example of “charters of power granted by Liberty.” The government established in Philadelphia in 1787 sought to ally itself with the ongoing discoveries of something new under the sun, with the ceaseless making and remaking not only of fortunes but also of laws. To a woman who had asked what the gentlemen had made of their deliberations, Benjamin Franklin is reported to have said, “A republic, Madam, if you can keep it.” 

The government enthroned in Washington in 2013 holds the view that the experiment with democracy has gone far enough, the upkeep of a republic more trouble than it’s worth. Let too many freedoms wander around loose in the streets, and who knows when somebody will turn up with a guillotine, or a bomb. The reconfiguration of Madison’s premise took shape during the prolonged Cold War with the Russians. How else to counter the threat of a paranoid offense unless with the fielding of an equally paranoid defense? The once-upon-a-time sons of liberty set to work replacing the antiquated U.S. republic with what President Dwight Eisenhower recognized in 1956 as a “military-industrial complex” arming itself with weapons of every conceivable caliber and size, with a vast armada of naval vessels afloat on eight seas and seven oceans, with guidance systems as “infallible” as those deployed by the seventeenth-century Spanish Inquisition. 

During the years 1947 to 1989, the constant reminder of next week’s day of judgment provided the parties in power in Washington with justification for muffling the voices of dissent. Unpopular during even the happiest of stock market booms, dissent during times of war attracts the attention of the police. The parade marshals regard any breaking through the rope lines of consensus as unpatriotic and disloyal; the voicing of impolitic opinions comes to be confused with treason, civil liberties to be regarded as so much toxic waste. Nor do governments willingly relinquish charters of power seized under the pretext of apocalypse. 

The loss of the Soviet threat in the 1990s brought forth as its replacement the war on drugs, a war waged not to defend the American people but to secure a perimeter around the majesty of the state. The terrorist attacks on New York and Washington on the morning of September 11, 2001, upgraded the war on drugs to a war against “all the world’s evil,” and by nightfall what was still left of the notion of a democratic republic framed on the premise of an argument had been suspended until further notice, cancelled because of rain. The barbarian was at the gates, civilization trembled in the balance, and now was not the time for any careless choice of word. 

Nor is such a time anywhere foreseen by the national intelligence agencies that in the years since the fall of the World Trade Center have added to their payrolls 100,000 inquisitors both petty and grand, have appropriated upwards of $ 750 billion for military enhancements, and have enlisted the close collaboration of the data-mining engineers in what was once known as the private sector. The government’s promotional literature describes the objective as “truth maintenance.” To detect and classify each and every one of America’s prospective enemies (terrestrial and extraterrestrial, real and imagined) high-speed computers sift through the electronic droppings of every human movement or expression— bank, medical, and divorce records, bookstore purchases, website visits and traffic violations, blood and urine samples, and so on. Connect the dots (all the names and places to all the dates and times), deploy “market-based techniques for avoiding surprises,” and if all goes well, what comes up on the screen is an American democracy as safely and securely dead as a pheasant under glass. 

Thus, apparently, the fond hope and eager expectation of the risk managers charged with the administration of the Department of Homeland Security, or with the command and control of a bank, an insurance company, a police precinct, or a congressional committee. The mission is the protection of property, not the preservation of the freedoms of the people. Royalist concentrations of wealth remain at liberty to do as they please— to poison rivers, cut down forests, charge cruel rates of interest, deny medical care, repudiate debt, eliminate species. Commonplace human beings, by nature untrustworthy, await instructions about where and how and when they walk the walk or talk the talk. Corporations dismiss employees for trafficking in ambiguous emails; no more than fifty people may assemble on the steps of Manhattan’s City Hall. The FBI searches even small-scale street demonstrations for “anarchists” and “extreme elements,” rounding up at random any participant deemed fit for a lesson in obedience. An arrest record discourages further experiments with the theory of free speech, and complicates the career plans for young and overly idealistic students obliged to meet the character requirements for admission to a prestigious university. Step out of line, my child, and you can say good-bye to the good hands people at Allstate and JPMorgan Chase.

When President Obama travels around the country to mouth the virtues of a government by the people, of the people, and for the people, the Secret Service sends advance scouts to set up “free speech areas” for the people who ask impolitic questions. Quarantined behind chain-link fences at a discreet distance from the presidential motorcade, the voices of protest remain out of earshot, the faces far enough away to avoid notice on the evening news. What is disheartening is the lack of objection on the part of a citizenry all too easily herded into the shelters of harmless speech and heavy law enforcement. Public opinion polls find the bulk of respondents willing to give up a generous percentage of their essential liberty in return for the shopping-mall measures of freedom (small and getting smaller) that they can still beg or borrow enough money to buy. 

It’s a poor trade. The well-being of a democratic republic depends less on the abundance of its cheap entertainment or the expense of its armies than on the capacity of its individual citizens to rely on their own thought. The big money never has much trouble drumming up smiles of prompt agreement, but democracy needs as many questions as its citizens can ask of their own stupidity and fear. We can’t know what we’re about, or whether we are telling ourselves too many lies, unless we can see and hear one another think out loud. Heidi Boghosian’s Spying on Democracy suggests that dissent is what rescues democracy from a quiet death behind closed doors, and preserves for our society the constitutional right to its own name.
Below: I posed this question to the author. We'll see whether she responds.

We speak of "business intelligence," of "confidential" and "proprietary information," of "ePHI" (electronic Protected Health Information) under HIPAA, etc. Is this now a naive and quaint notion? How can you even have actionable "proprietary information" if you cannot communicate it with others having the right and need to know (beyond furtive, paranoid Enemy-of-the-State-Movie midnight face-to-face meetings in some desolate parking lots beyond the reach of telescope microphones and high-powered binocular-aided lip-readers)? Beyond the spectre of government and corporate collection of digital dossiers on individuals, what would there be to stop NSA et al gumshoes from engaging in clandestine insider trading based on sensitive commercial information?
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More to come...