Late last week, I wrote an article about the NSA in which I noted that we are dealing with a Congress that doesn’t understand technology, and laws that were made for a different time and different technology (at least when understanding what search and seizure mean). Today there was an article in Slashdot that made an even more important point:
John Naughton writes in the Guardian that the insight that seems to have escaped most of the world’s mainstream media regarding the revelations from Edward Snowden is how the US has been able to bend nine US internet companies to its demands for access to their users’ data proving that no US-based internet company can be trusted to protect our privacy or data. ‘The fact is that Google, Facebook, Yahoo, Amazon, Apple and Microsoft are all integral components of the US cyber-surveillance system,’ writes Naughton. ‘Nothing, but nothing, that is stored in their “cloud” services can be guaranteed to be safe from surveillance or from illicit downloading by employees of the consultancies employed by the NSA.’ This spells the end of the internet as a truly global network. ‘It was always a possibility that the system would eventually be Balkanised, ie divided into a number of geographical or jurisdiction-determined subnets as societies such as China, Russia, Iran and other Islamic states decided that they needed to control how their citizens communicated. Now, Balkanisation is a certainty.’
The point made here is the statement that the Internet is a truly global network. What’s the problem? Let me tell you.
America’s laws… and America’s security structures and organizations… are based essentially in the period immediately after WWII. 1947 is when the NSA was created. Back then, communication was primarily domestic — there were clear international paths for the NSA to monitor to protect the country. Fast forward to today. We’re dealing with multinational communications companies located who knows where, governed by who knows what laws, handling data from all across the globe. Any Internet traffic stream may contain not only packets traversing from a domestic computer to a domestic computer, but international to international and international to domestic. Further, transportation has made the world smaller, and there are more and more foreign (i.e., non-US) visitors and workers in the US (both legally and illegally). Now imagine you are an agency (such as the NSA) charged with monitoring International traffic — what do you do? Yup. Supposed you are the FBI monitoring international traffic to fight against illegally trafficed material? There is no longer an easy way to just get the data you want from the information stream. You end up collecting it all, and attempting to find that needle in the haystack later.
Understanding this is key to solving the problem. We can see how we got into the legal boat we are in — it is easy to see the arguments that were made to Congress, and how they misunderstood what they were authorizing. Instead of complaining that we are in a “big brother” state and the government is out to get us (which is a lot of what I see), what we need to do is simple.
1. Educate our representatives and leaders about the technology so they understand that which about they are writing laws.
2. Vote for people who understand and agree to work to move the pendulum back to protecting privacy in the new global society. The pendulum swings between being overly secure and not. We just have to keep working to get it right.
3. Stop electing the lawyers and partisans. Let’s get some people who actually understand technology and know how to think critically elected.
The problems we are dealing with here took many years to get to this point. We’re not going to fix them overnight. Slow and steady education… and, as I’ve said before, understanding that we are not dealing with evil, we’re dealing with stupidity and bureaurcracy. If you want evil, look at those multinational corporations.
There’s also another matter. It appears that much of the “law” that allows the NSA, FBI, and other agencies to cast a broad dragnet and pile up haystacks of personal data isn’t made through the public enactments of Congress. Rather, it appears that the FISA Court has empowered itself to create classified “interpretations” of the laws Congress passes, specifically to facilitate and legitimize whatever surveillance programs the agencies request. The agencies thus are not following the public laws made by the people we elect, but a growing parallel body of classified laws, made in secret one-sided proceedings, by compliant group-thinking kangaroos selected by an ideologically-biased Chief Justice.
At least that’s the picture presented by a series of recent articles in the New York Times. The administration prefers us to trust their assertions that the FISA Court is an independent judiciary that provides effective oversight and protects our rights and privacy. But the little unclassified information about the court that is available shows that the judges pride themselves on their perfect record of approving every surveillance request that has ever come before them. And the one ruling of the FISA Court’s appellate division that has been declassified was a rejection of Yahoo’s challenge to a surveillance order. Their reasoning for the rejection was that “national security should not be frustrated by courts.” That would seem to make the portrayal in the New York Times more credible than the “trust us” offered by the FISA Court’s defenders.
I think Congress needs to be educated about its role in the constitutional system of checks and balances. It needs to exercise oversight, and to use the power of the purse as necessary to curb possible abuses by the Executive Branch. The wise men who set up the constitution knew from experience that rulers inherently become tyrannical without transparency and independent checks and balances. And that’s just what seems to be happening behind the curtain of secrecy erected by Bush and continually strengthened by Obama.
For over a decade, Congress has abrogated its authority to the Executive Branch, and has silently acquiesced to the accumulation of Executive power behind the curtain. Whether you consider what Edward Snowden did as wanton treason or heroic whistle-blowing, he has succeeded in parting the curtain, exposing questionable programs and practices, and emboldening at least some members of Congress to start doing their jobs.
To the extent that it’s possible– and the campaign finance system makes that possibility increasingly remote– we need to elect members of Congress who aren’t afraid of upholding the constitutional system of government against Executives who seem to believe that protecting America from terrorists requires the systematic destruction of what makes America uniquely worth protecting.
I would tend to agree. I think a lot of the problems came from the Patriot Act and the FISA court, and the post-Bush gridlock basically ensured it would stay in place. The law itself should be public, and interpretations of the law should be public. Specifics about threats can, and should be classified, but that shouldn’t affect the interpretations of the law sans any threat info. It’s time for the pendulum to swing the other direction for a while.
As for Snowden, I don’t agree with his methods — he doesn’t have the visibility or overall knowledge to know what damage a disclosure of specifics can do. However, there are ways to make people aware of an operation without disclosing the actual records. The press loves breadcrumbs.
One other note – I do think that those making the law don’t understand the technology, and this leads to the bad interpretations because they don’t really understand what they are doing.
I also do believe that this is not an example of “evil” — more over-zealousness if anything. I think the intent is to protect the country, nothing more sinister. How they are going about it is overboard.
Lastly, I still believe that everyone is worried about the government, when they should be equally worried (if not more worried) about the large corporations who aren’t working in the interest of the country (even if it is overboard), but are working solely in the interest of the great god “profit”.