Business As Usual

Were you really surprised?  After all that you've heard?

The scope of it, and the chutzpah, they're impressive.  But we're talking big gov and big biz.

AT &T records, going back to 1987.  Records of every call that's passed through an AT &T switching system, not just calls by AT &T customers.  Who, what, when, where.  4 billion new records added to the database every day.

Scott Shane and Colin Moynihan had the story in the Times.

For at least six years, law enforcement officials working on a counternarcotics program have had routine access, using subpoenas, to an enormous AT&T database that contains the records of decades of Americans’ phone calls — parallel to but covering a far longer time than the National Security Agency’s hotly disputed collection of phone call logs.

The Hemisphere Project, a partnership between federal and local drug officials and AT&T that has not previously been reported, involves an extremely close association between the government and the telecommunications giant.

The government pays AT&T to place its employees in drug-fighting units around the country. Those employees sit alongside Drug Enforcement Administration agents and local detectives and supply them with the phone data from as far back as 1987.

As the government and AT &T spokespeople and a Columbia U lawprof describe it, it's just business as usual.  Of course, the description is dishonest.  As Mark Bennett points out, those subpoenas that AT &T claims it has to obey actually obligate AT &T to nothing.  And the claim that AT &T is a private entity holding all that data?  Sure, after a fashion.

Except the feds are paying AT &T for this.  And AT &T employees are "embedded" in the federal agency.  Which makes AT &T part of the government.  But then, really, it has been for decades.

The only surprise, once again, is the scope of the thing.  And that as a formal program with a cool name and decoder badge it's only been around since 2007.  See, if you'd been paying attention, even a little bit of attention, you'd have known.  Not the details, of course, but the idea.  After all, these are

routine investigative procedures used in criminal cases for decades.

Going after phone records of suspected criminals?

[A] bread-and-butter tactic in the course of criminal investigations.

Hell, haven't you watched The Wire? 

So now you know the details you've let yourself ignore all these years.  Government is spying on you.  It has been.  It will.  You might be able to stop it if you really cared, if you - not just you folks who read this, of course, but you the American people.  If you spoke up.  If you actually voted out of office every representative and senator who didn't immediately vote to terminate all funding for the DEA and then to override Obama's veto.  But you won't.

You won't.  Because you know that it really is business as usual.  That they're not doing anything new except doing it a shade faster because computers are faster than they used to be.  And because you won't think about it again.

Until the next revelation. (OH MY STARS AND WHISKERS!  I CAN'T BELIEVE THE GOVERNMENT IS SPYING ON US - IN YET ANOTHER WAY.)

And the one after that.

The wizard isn't working from behind the curtain.  He's out in the open.  He's been there for years. The Hemisphere Project began when Shrub was President.  It continues now.  It will continue whoever becomes President next.  Or after her.  There's nothing partisan about the government wanting to spy on its people, nothing partisan about the government actually managing to do it.  All parties.  All governments.  

Law of Rule.

The Snowdens of Yesteryear

I've told this story before.

It was back when I was Legal Director of the ACLU of Ohio, and I was to be debating some hot-shot law school professor from some hot-shot law school and about the USA Patriot Act and other post 9/11 measures that involved ceding liberty for the illusion of greater safety.  And, not incidentally, we weren't to know the details, because if they told us, they'd have to kill us.

National security, don't you know.

I'd done this gig before.  I talk about ephemeral benefits and how all these increased powers to protect us against terrorists are actually being used to catch drug dealers and on-line gamblers while invading the privacy of ordinary folks and how the government justifies all this by scaring the public with hypothetical stories of the horrors that could have been prevented and maybe were (but who knows because if they told us the truth it would have given away the store to terrorists) so it was all worth it.
And then he'd talk about protecting America and how we have to give up a bit of privacy for security in this new age.

So we flipped a metaphorical coin, and he went first.  And completely changed the script.

He didn't talk about safety or security or trade offs we had to make because 9/11 changed everything.  Instead, he said that the Pres (it was Shrub at the time, but that was irrelevant to the position he was staking out) had, per the Constitution, plenary unreviewable power to do whatever he thought best in regard to national security and defense.  We had no right to know what he was doing.  Congress had no oversight authority and any it attempted to exercise was unconstitutional.  Ditto the courts.  If we didn't like what he was doing (although we weren't to know what it was) our remedy was to vote him out of office at the next election and replace him with someone else who was to act in secret but whose acts (again unknown to us) we preferred.

Really, that's what he said.  Law degrees, government experience, law review articles, and all.

Which brings me to Edward Snowden and NSA and government secrecy and whistleblowers and finally to His Barakness who said,

I welcome this debate.  And I think it's healthy for our democracy.  I think it's a sign of maturity, because probably five years ago, six years ago, we might not have been having this debate.  And I think it's interesting that there are some folks on the left but also some folks on the right who are now worried about it who weren't very worried about it when there was a Republican President.  I think that's good that we're having this discussion.

Which is, of course, vacuous bullshit of the highest order.  It might even be true except that it's almost wholly content free.  And where there is content, it's misleading.

See, there are these secret surveillance programs where they get everyone's metadata from Verizon and would never never get more and you can be sure because they said that everyone in Congress knows about it and knew about it and they all think it's hunky-dory including those who've been trying to complain about without revealing anything and those who despite knowing all about it are wholly ignorant of it.  And there's strict oversight by the courts which simply say, "how high?" when told to jump.  And it's all a secret from the American people because if we know, then so do the terrorists and if they know Verizon makes their data available to the feds then they'll switch their iPhones to AT&T and that'll make the whole thing worthless.

And ditto for the Prism thing and reading your e-mails and text messages and watching the youtube of your kid rolling around on the carpet in front of the TV or striking out at little league or performing in the school assembly or giving instructions on how to turn sudafed into speed.

And so while thousands urge President O to pardon Snowden as a national hero and others urge his assassination as a traitor (drone strike on Hong Kong, anyone?) DOJ plans simply to turn him into the next Bradley Manning and put him in prison forever - if they can just get their hands on him.  Because he opened the door to the candy store.

But the debate?  He welcomes it.  It's "healthy for our democracy."  Because, you know, the public should get to weigh in on and evaluate the trade-offs we're making between safety and security.  EXCEPT, OF COURSE, THEY HAVE NO RIGHT TO KNOW ANY OF THIS AND HAVE NO SAY.  (Or should that last have been in microscopic print like the fact that one side effect of the prescription drug advertised on TV is that it might turn you into a jellyfish - or a psychopathic killer?)

Over at Popehat, Clark wrote "Edward Snowden, F____ yeah!" which Matt Brown echoed.  Scott Greenfield thinks Snowden's mostly a distraction from the real issue - our lost privacy, a position aligned with Mark Bennett's call for action.

So what’s the solu­tion for those of us who are not will­ing to sell lib­erty cheaply?

We could take the Fried­man approach and say “this far but, golly gee, no far­ther please” in the assump­tion that by giv­ing up some free­dom we can pre­serve the rest. But this approach is doomed to fail­ure because even if we suc­ceed in fight­ing the last war, some­thing else will come along that jus­ti­fies, in the minds of the booboisie, less free­dom. Mean­while, the Fried­man approach trains the 99% to give up essen­tial free­dom for tem­po­rary safety, teaches the gov­ern­ment that we will not push back, and so has­tens liberty’s even­tual demise.

Or we could say “this will not stand” and teach the booboisie to push back. We might never get more than 50% on the side of lib­erty in the face of fear, but we do not need a major­ity to prevail.

What we do need, though, is to know that there's an issue.  Which is where Snowden comes in.  
I don't know, maybe he did jeopardize national security and a nuclear weapon will flatten Sioux City, Iowa because the FBI and NSA didn't find out that some guy with an area code in Saskatchwan has been texting to someone in  Portales, New Mexico.  Frankly, it doesn't seem likely.  I mean what he really did is confirm what the more cynical of us have understood for some time.

What they can, they will.
What power they have, they will abuse.
 

Justice Roberts, with whom I rarely find myself in agreement (and would he stop with that smirky smile, already), got this much exactly right in U.S. v. Stevens.

But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. 

What's true of the First is equally true of the others.  But it's true only if we push back.  And we can only push back effectively if we know where the front lines are.  Which is what Snowden and the Guardian have just told us.  Maybe.  Or maybe their the middle lines they've revealed.  Hell, it might even be the backfield.  But it's a starting point.

Let the debate Obama falsely claims he wants, begin.  And then throw it aside, because we don't need to talk about it.  We need to rise up and say "NO MORE."

Or we can join with Yossarian and ask

Where are the Snowdens of yesteryear?

If You Can Keep It

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

Those are the stirring, and I'd submit self-evidently correct, words of Justice Louis Brandeis in Olmstead v. United States. 

Sadly, my submission is demonstrably wrong.  Indeed, it was wrong long before I offered it.  Brandeis penned those words in dissent from the Court's opinion written by the Chief Justice and (stick with me, this is relevant) former President William Howard Taft.  Or maybe it's not wrong.  Maybe it's right that what Brandeis said is self-evidently correct but that the powers that be don't give a shit and therefore regularly choose the incorrect over the correct. Of course, whether the Constitution is routinely misunderstood or ignored or intentionally violated, the effect is the same.

Sunday Barak Obama and Joe Biden swore to defend and protect the Constitution as they took the oaths of their offices and began their second terms as President and Veep.  Monday, they did it again, this time only ceremonially since it was the Sunday ones that counted.  I have no reason to believe that they lied.

Obama's speech was, as his best speeches are, soaring.  Evoking Jefferson and Lincoln and Kennedy and Martin Luther King, Jr.  He offered a vision of alliterative inclusiveness referencing Seneca Falls and Selma and Stonewall.  He talked about all the things that government can and should do.  It was a solid, progressive, liberal agenda he set out.  He quoted the Declaration of Independence and its own statement of what is "self-evident":

We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness.

Yet he also omitted.

I'm not a governmental minimalist.  I believe in government.  I think the government can and should do much.  

But I believe, too, in what Brandeis recognized in Olmstead.  I was curious, so I checked and was surprised to discover that I'd only quoted that passage once before in this blog (here). At the time I was talking about balancing tests and how when freedom is put in the balance against much of anything else, freedom loses.  Which is why balancing tests are so pernicious.  They don't really balance.  They simply declare.

The reality, of course, is that all life is a balance.   Certainly all law is.  Forget absolute language.  It doesn't count. (Note that Brandeis spoke of "unjustifiable" intrusion violating the 4th Amendment, allowing a world of wiggle room.)

Yet the ideas, the absolutes of the ideas, that's something different.  And nowhere is the idea better set out than in one partial sentence from Olmstead:

[T]he right to be let alone — the most comprehensive of rights and the right most valued by civilized men. 

You can find recognition of some of that in what Obama said yesterday.  But you won't find much of it, or much support for anything in the Bill of Rights, in what he spoke about or what he advocates or what the agencies of his administration (or the one before or the one before that or the one before that - or, I regret to say, the ones that will follow).

We have decided, as a nation, that civil rights are a good thing (though how far to extend them is deeply contentious).  Civil liberties, on the other hand, are dangerous and can be rejected, ignored, crushed.  Or simply voted down, as the House did in 1995 when it voted against the text of the 4th Amendment 303-121.

Look, it's not absolute.  DOMA may really go down in flames this year.  Same Sex Marriage could become a constitutional right (don't go making wagers; I'm just saying those things are possible).  But if you want the government out of your computer, if you want to enforce the 4th Amendment or the 5th or the 6th or the 8th or the Establishment Clause or Free Press parts of the 1st - well, sure, maybe, if nobody much objects.  But then again, maybe not.  Just ask Bradley Manning.

As something of an aside, but not really, today marks 40 years to the day since the Supreme Court declared in Roe v. Wade that government had no right to prevent a woman from getting an abortion.  Roe was premised on the right to privacy implicit in the Bill of Rights. Or maybe it's properly seen, in Olmstead's terms as protecting against an "unjustifiable intrusion." Anti-abortion laws violate the 4th Amendment.  Either way, the states, the feds, and the courts have been backing away from the decision ever since.

Over at 18

Unless you live in a cave, you know the press version of what happened:  Rutgers University student and accomplished violinist Tyler Clementi committed suicide by jumping off the George Washington Bridge after his roommate, Dharum Ravi, and another classmate, Molly Wei, secretly secretly recorded him engaged in a homosexual encounter and put the video on the internet.  Ravi and Wei have each been charged with multiple counts of invasion of privacy and face at least the theoretical prospect of spending years in prison.  All three were 18 years old.

Tyler Clementi, Dharum Ravi, Molly Wei

I call that "the press version" of what happened because I don't actually know what occurred.  Neither do you.  I have no particular reason to think that the events as reported are not true, but I've seen even good reporters get the facts dramatically wrong often enough - especially in sensationalist, attention-grabbing stories like this - that I'm always wary.  More than that, though, the press version, even if perfectly accurate, is incomplete. 

Why did Ravi and Wei use the webcam and then broadcast the video?  What drove them to it?  What, if anything, did they hope to achieve?  Were they motivated by hatred of Clementi?  Because they thought he was gay?  Because he was a violinist?  Because he snored?  Was it just a prank?  Because it was sex?  Because it was gay sex?  Because the guy he was with was someone they hated?  Or lusted after?  Or told a bad joke at dinner the night before?

And what of Clementi?  Why did he jump?  Because he's gay?  Because he's not?  Because he isn't sure?  Because he was embarrassed by the particular guy he was with?  Because the camera angle was tough?  Because other people were making fun of him?  Because they weren't? For reasons altogether unrelated to the video but coincident in timing?

There are lots of other questions I could add, but I'm alread being a whole lot more flip about this than I intend, so I won't.  Besides, I'm getting sidetracked by the questions, which only deal, after all, with personal motivation.  See, personal motivation, the reasons why they each did what they did, that's only part of the story, too.

Here's another part: We live in a world of surveillance.  There are cameras on busy street corners, cameras in parking lots.  You're photographed at the bank and the post office and when you're in WalMart.  At the bus station and in the subway.  Cameras record your license when you pass through a toll booth.  Other cameras are finding out if you're running a red light or speeding.  There's a camera on the tip of someone's shoe or the end of his cane taking pictures up your dress.  There are cameras recording what goes on in public restrooms (yep, legal ones).  

And we (that's a societal "we"; I'm not talking about you and me, though maybe I'm talking about you) live for it.  Reality TV?  You bet.  Take, for instance, Apprentice contestant and now-former Brooklyn Assistant District Attorney Mahsa Saeidi-Azcuy.  Here's what NBC has to say about her.

Mahsa, 29 (Brooklyn, New York), works as an Assistant District Attorney in Brooklyn, New York, and is the host of two web shows on the side. Dealing with the financial pressures of being the sole breadwinner in her family, Mahsa has gained personal strength in this economic downturn. Before receiving her J.D. at Brooklyn Law School, Mahsa studied biology at the University of Virginia, and film at the New York Film Academy. She passionately fights to promote justice, and is obsessed with beauty, hair and style secrets.

This is not someone who's shy about being a public person.  But it's not just her.  After all, people put their own videos on YouTube. It seems as if everyone (except your humble author) is on facebook, and twitter.  Depending on the study, somewhere between 10 and 30 percent of teenagers have taken pictures of themselves at least partially nude and sent them off over their phones and computers to friends and even strangers.  And even I've got this blog.

So we live in this world where we're all on stage all the time.  We encourage that sort of thing.  And then marvel that someone takes a picture or a video and posts it online for the world to see.

But if we live in a world where everyone's private life is up for grabs, we also live in a world that is too often horrified by homosexuality.  Don't Ask, Don't Tell (and as someone recently wondered, has anyone ever been forced from the military for asking?).  Same sex marriage?  Fred Phelps and his venom spewing family from Westboro Baptist Church will be in the Supreme Court next week arguing that they have a First Amendment protected right to use the funerals of military personnel to attack support for gay rights.  (Disclosure, I represented Shirley Phelps-Roper in her partly-successful challenge to Ohio's prohibition on protests near funerals.)

It's hard to be a teenager.  It's harder still to be a teenager struggling with, or even discovering and reveling in your sexuality.  Harder still to be a teenager struggling with (or discovering and reveling in) you sexuality whose private struggles and (or) discovery are made public.

And yet, who could predict, if all of the above, that Tyler Clementi would take his life?  Even if Ravi and Wei wanted to embarrass him.  Even if they loathed him for being gay.  Even if it was something more than an offensive, ill-conceived, and frankly stupid prank gone bad.  And certainly if it was not.

There's so much more than what they did (if they did) to cause what he did (assuming he did).

Because there's plenty of blame to go around.  And Ravi and Wei, if they deserve any of it, have a wide array of others they can also point to.  If Clementi killed himself because video of him engaged in gay sex was made public, we (that's the societal we, again, not the personal one) have more than our share of blame.  To slough it all off on Ravi and Wei . . . we're letting ourselves off the hook way too easily.

One of the subjects I keep returning to on this blog is that criminal law isn't about righting personal offense.  Insofar as the law is interested in personal offense, it's tort law that shows that interest.  Criminal law is, as I've said repeatedly, about the harm done to the social fabric, to the body politic by criminal acts.

Tyler Clementi is dead.  If someone must pay, that's what torts is for.  And there's plenty of liability (not all of it legal liability, though) to go around.  But crimes?  Should Ravi or Wei really spend years in prison for capturing and showing, all without permission, Clementi having sex?  If they did it, it's wrong.  But years in prison?

Smile, You're on Candid Camera

Scott Hensen, at Grits for Breakfast, has a post about the FBI's plans to develop a database which will, basically, contain every imagineable identifier - fingerprints, DNA, voice prints, iris scans, you name it. It's mighty frightening. The lessons of history teach us two things about collected data: (1) it will be compromised; (2) it will be used in ways we've been assured it won't be. In the case of this sort of data, there's a third certainty: It will be riddled with mistakes that result in appalling injustices.

Scott has a handle on all that. He knows that we live in what the ACLU has called a "surveillance society" (see here and here) and that we can try to stem the tide of data collection and distribution but we really can't stop it. A comment by the prolific commentator Anonymous offers an alternative: hide from it.

It's appropriate, of course, that the commentator who favors personal privacy should conceal his or her identity. But it's also beside my point. Here's the relevant (for my purposes here) part of what Anonymous had to say:

There's a lovely little town in nowhere Panama where most places still operate on a cash only basis and while I can get a nice Internet connection, no one wants my shopping history, taps my phone, wants my personal banking records, records me walking down the street or wants my blood and DNA. I'm looking forward to a retirement as an expatriate more and more.

I don't know which particular bit of nowhere in Panama it is of which Anonymous speaks. There's certainly no shortage of nowhere in Panama, and it may be every bit as idyllic as Nony says. (Hey, I'm getting tired of typing the whole thing, we should be comfortable with shortcut nicknames by now.) But you know, my limited experience of Central America suggests that the idyll may not be so pure.

First, technology advances. If you've got the internet, you've soon got Interpol. There's plenty of snooping, it's just a different sort than we find in big cities here in the States. There's little need for red light cameras where there are no red lights. (Though I did once get rousted and extorted by a cop for allegedly speeding on the Pan American Highway.)

Second, the right to be left alone comes with a price.

When I was in Central America in the mid 90s, I was struck by the ubiquitous presence of armed guards. Every McDonald's had a kid in a paramalitary uniform carrying an automatic weapon. And I mean kid. The average age of armed security in the fast food places looked to be about 16. The miracle is that more people didn't get killed.

When I was in Central America a couple of years ago, I found that, along with all the armed kids guarding businesses and directing traffic, the entire landscape was now bound with concertina wire. Every home, every business. Mansions and shanties.

The idea is to make you secure - certainly to make you feel secure. But you know, at least for this gringo it didn't work.

Oh, it may be safer to be behind barbed wire. But when you're inside it feels just too damn much like being in a prison (a very nice prison, perhaps, but a prison). And when you're outside, it's just a constant reminder that there's danger everywhere - and you can't count on a neighbor for help because the neighbor is hidden away behind his barricades. And you can't count on law enforcement for help, because if you could, there wouldn't be any need for the security.

I don't think it's an either/or. The push is for both.

There are plenty of gated communities in this country and the people who live in them are probably among the folks agitating most energetically for more government surveillance - and more concertina wire for themselves. That internet cafe in Panama probably has a kid with an Uzi on patrol, and I'd bet they're tracking every web site you visit.

If the Nigerian scamorama artists can track you down (and they can track all of us down, I'm sorry to say), so can the FBI. And if they aren't doing it today, they'll be doing it tomorrow.

1984? Brave New World? Maybe it's just your supermarket club card.

But they know what you've been doing. They always do. Always.