Re: Social bookmarking and political essays

1

Last time around, I pointed out that the spooks will listen to powerful people as well as to peons.

Stormcrow pointed out that Cheney's protege Bolton had already done this.

Since then, this claim that spooks listened to powerful foreigners:
http://www.voanews.com/content/report-nsa-leaker-says-britain-spied-on-foreign-diplomats-in-london/1683145.html

Also, the Chinese are pointing out that this is a powerful tool for economic espionage. The US has of course been pitching a bitch about how terrible it is that China steals US economic secrets.

This isn't just wrong (and yes I believe that it is wrong) it is also impractical.


Posted by: lw | Link to this comment | 06-18-13 11:56 AM
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The essay in the OP is, indeed, very good.


Posted by: x.trapnel | Link to this comment | 06-18-13 12:32 PM
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I think the problem with Simon is that he's doing a David Mamet/Martin Amis death-dive to assholedom.


Posted by: Alex | Link to this comment | 06-19-13 3:52 AM
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Simon's response to Cegłowski's response is here.


Posted by: MAE | Link to this comment | 06-19-13 6:54 AM
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"A certain Maciej" and "Mr. Maciej" in that post sure don't make me think Alex is wrong in 3.


Posted by: nosflow | Link to this comment | 06-19-13 7:15 AM
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Thanks for the link, interesting response. It would indeed be great if voting Americans cared about people living in poor neighborhoods and other countries, especially Mexico. Regardless of individual generosity, which is pretty common, people in the US will not vote intelligently on either of these issues, though.

The no-fly list, driving checkpoints, and drug raids are all great topics for discussion. But if I'm with people I don't already know, I would consider my bringing up any of these topics as picking a fight.

Again, I think that the issue with this program is not that it will be applied to middle-class people (who cares, why bother), but that the data will be used against journalists and politicians unfriendly to the security apparatus. Also it will have economic consequences-- the program is basically a subsidy to foreign computer service providers, since for example Germans will now be a lot less likely to use a gmail account.


Posted by: lw | Link to this comment | 06-19-13 7:20 AM
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The essay in the OP is, indeed, very good.

It is, though I want to go through and undo all his capitalizations of "federal".


Posted by: apostropher | Link to this comment | 06-19-13 7:20 AM
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"A certain Maciej" and "Mr. Maciej" in that post sure don't make me think Alex is wrong in 3.

Unless Simon doesn't know who Maciej Cegłowski is, or doesn't know that the author of the essay in the OP, which is simply signed "maciej", is Maciej Cegłowski.


Posted by: MAE | Link to this comment | 06-19-13 7:26 AM
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(By the way, I didn't know who Maciej Cegłowski was before I Googled him a few minutes ago.)


Posted by: MAE | Link to this comment | 06-19-13 7:28 AM
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This whole deal where Maciej Ceglowski, Kieran Healy and David Simon are in dialogue is a strange deal.


Posted by: Sifu Tweety | Link to this comment | 06-19-13 7:33 AM
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As if anyone could fail to know who the author of "The Alameda-Weehawken Burrito Tunnel" is.


Posted by: nosflow | Link to this comment | 06-19-13 7:34 AM
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11: Thomas Pynchon?


Posted by: Cryptic ned | Link to this comment | 06-19-13 7:44 AM
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"Burrito tunnel" is too good a phrase not to be a euphemism.


Posted by: MAE | Link to this comment | 06-19-13 7:46 AM
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3: I don't think so, based on the link in 4. He's just not as worried about NSA intercepts of envelope information as most liberals seem to be, and his reasons are coherent even if you disagree with them.

I'm personally not too freaked out about the NSA program, though I fear it's extension into routine use by law enforcement. If there was, as Simon suggests, strong oversight to prevent abuses I pretty much wouldn't care at all relative to how I feel about some of the abuses Simon talks about. That's not to say I wouldn't prefer no such program at all, but in practice the choice appears to be between secretive abuse-prone monitoring and monitoring with oversight. Rolling things back to no monitoring at all requires a level of effort that is out of proportion to the injury, especially in light of far worse injuries being inflicted which do not receive anything like a proportionate level of effort to mitigate them.


Posted by: togolosh | Link to this comment | 06-19-13 7:51 AM
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6.3, 14: The problem is not the program being used or abused, nor do I believe that real instances of application are it's point. At LGM, they are discussing, badly and without insight, a batshit post by Naomi Wolf that says Snowden is a mole serving Obama by making the NSA program public.

I have always though the point of Gitmo was not punishment or keeping these particular people from future acts, but deterrence. There is a good reason innocents were snatched and dropped in a black hole, to show the rest we can and would.

Similarly the purpose of PRISM is to have everyday people internalize the idea that Big Brother is always watching, accept it as no huge problem as long as we don't attract attention.

I accidentally followed a link to a Golden Dawn (Gr) site this morning, and had a moment of fear about that being observed and recorded.

Dear God, the pieces are falling into place. They don't even have to use the info gleaned as evidence. They can now lock you away and claim the reasons why are top secret.

In any case, Obama is building the scaffolding for the next Republican to use, or a Democrat if we have a catastrophe. But we are fucked beyond imagining.


Posted by: bob mcmanus | Link to this comment | 06-19-13 8:35 AM
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If for no other reason, I welcome Simon's contribution to the debate because it provides a useful counterbalance to those who imply that gathering cell phone metadata is just a short distance on the slippery slope away from this.


Posted by: MAE | Link to this comment | 06-19-13 8:37 AM
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Bob, did you ever see Repo Man?

The bus really is a great place to think. But the problem with this program is not that reading about it will affect how people think-- television is a much more effective poison, and it's voluntary. The problem with the secret program is that it will be abused, already has been, with no way of finding out who is at the controls.


Posted by: lw | Link to this comment | 06-19-13 8:43 AM
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I keep thinking I should write something longer on this, but then I think -- who cares. Simon is probably closest to my views on this issue than anyone else I've seen published, though I don't agree with everything he says, and I thought his response was effective, though pretty long-winded.


Posted by: Robert Halford | Link to this comment | 06-19-13 8:48 AM
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I also basically agree with 17 last, though I'd like more evidence for the "already has been" abused. But that diagnosis of the problem is pretty much Simon's, and pretty much not that of the post linked in the OP.


Posted by: Robert Halford | Link to this comment | 06-19-13 8:51 AM
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Grayson Sees But Can't Discuss Pacific Trade Agreement

Mostly because Obama wants this evil piece of shit superfast-tracked in a day. I had a momentary thought that the details of TPP will never become public. Why can this Hong Kong bank take our park? We can't tell you. Why is my blog illegal? It violates a provision in the TPP. Congress passed it, express your discontent in the voting booth.

Half Huxley, half-Orwell. Lots of drugs and sex, don't make waves.

I am pretty serious about the mushroom-Otaku strategy, because very soon standing (or dancing dervish) like Bartleby is going to be the only form of resistance possible.

Japan understands social control and cultural construction.


Posted by: bob mcmanus | Link to this comment | 06-19-13 8:52 AM
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though I'd like more evidence for the "already has been" abused.

You can see, though, how that would be hard to come by, right?

I also basically agree with 17 last, […] But that diagnosis of the problem is pretty much Simon's, and pretty much not that of the post linked in the OP.

Isn't Maciej's diagnosis pretty much "this will be abused, and the abuses will be easier to perform than Simon realizes"?


Posted by: nosflow | Link to this comment | 06-19-13 9:04 AM
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Lot of fucking straw in there. In pretty much every direction he looks.


Posted by: CharleyCarp | Link to this comment | 06-19-13 9:04 AM
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"The foreign relations committee has discovered that Bolton made a highly unusual request and gained access to 10 intercepts by the National Security Agency. Staff members on the committee believe that Bolton was probably spying on Powell, his senior advisors and other officials reporting to him on diplomatic initiatives that Bolton opposed"


Posted by: lw | Link to this comment | 06-19-13 9:06 AM
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I don't think Simon is naive at all about the potential for abuse. But 1950s policing technology is also, in the wrong hands, extremely easy to abuse and has consequences that might be devestating and, of course, was abused). But the way we've dealt with that is to regulate the abuse, not, as Maciej seems to suggest, to deny to law enforcement for any purpose whatsoever technologies that private companies have been manipulating for (at least) 20 years.


Posted by: Robert Halford | Link to this comment | 06-19-13 9:10 AM
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Simon's response to Cegłowski's response is here.

Thanks. That's interesting and help me understand his position better than the original post did.


Posted by: NickS | Link to this comment | 06-19-13 9:11 AM
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24 to 21. To 23, is there any evidence that this (abuse) was a result of the actual program we're discussing, as opposed to just general NSA spying? Nixon also was able to effectively spy on his political opponents.


Posted by: Robert Halford | Link to this comment | 06-19-13 9:12 AM
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The problem with a 'regulate the abuse' approach is that the ability to regulate the abuse is severely hampered by the secrecy and dishonesty with which these programs are shrouded. Suffused. To the very marrow.


Posted by: CharleyCarp | Link to this comment | 06-19-13 9:14 AM
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Yes, I agree that we need less secrecy in order to effectively regulate these kinds of programs, and that far too much is classified. That's also a point Simon makes.


Posted by: Robert Halford | Link to this comment | 06-19-13 9:15 AM
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15: I accidentally followed a link to a Golden Dawn

I don't think you have to worry about magick, bob.


Posted by: parsimon | Link to this comment | 06-19-13 9:15 AM
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Don't know, but the other link in 1 is about this program specifically.

If just general spying is known to be a tool to direct against a political enemy without investigation or punishment, who could possibly disagree with this very reasonable request for additional funding.


Posted by: lw | Link to this comment | 06-19-13 9:16 AM
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28 -- All his arguments defending the program are swallowed up by the secrecy and the bad faith that is the basis for most of the secrecy. He's assuming good faith from an apparatus that has shown bad faith at every turn, most notably in its arguments for excessive secrecy. Which arguments show contempt for the democratic process and the rule of law.

You can't use the word 'legal' to describe activity by someone who refuses to disclose what they are doing, what they told courts, lies to regulators and which argued, not long ago, that torture -- even that specifically prohibited by statute and prosecuted in the past -- was 'legal.'


Posted by: CharleyCarp | Link to this comment | 06-19-13 9:22 AM
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Well, if I understand the story correctly, Bolton's alleged abuse caused a total panic and meltdown (even) among rigt wing political hacks in the Bush administration. The potential for misusing the apparatus of the state to spy on one's political opponents is real and has been there for a very long time. It doesn't actually seem to happen very much in DC, at least since Watergate, which suggests that there isn't anything like a 1:1 correlation between adding intelligence capacity and provoking abuse. And, if abuse is what you're worried about, I'd be at least as fearful of Google, Facebook, et al as the NSA.


Posted by: Robert Halford | Link to this comment | 06-19-13 9:22 AM
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The problem with the "this has the potential to be abused" argument is that one can make (and people have made) the same argument about any government program, from background checks on gun purchases, to the IRS, to Obamacare, to fluoridation of drinking water. Any time you give people power or authority, there is the danger that they will abuse it.

Sure, you can argue that this program is different, and the potential for abuse is much greater and more likely. But is it?


Posted by: MAE | Link to this comment | 06-19-13 9:24 AM
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31 seems pretty overheated. Assume that there's been metadata collection just as Snowden has alleged. That seems quite clearly legal under existing law, whatever you think of the merits of the program.


Posted by: Robert Halford | Link to this comment | 06-19-13 9:25 AM
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I keep thinking I should write something longer on this

I keep wanting to also, and haven't for what I think is the same reason: I'm not willing to invest the time and intellectual energy that would be necessary to do the job right. I think Simon is fundamentally wrong, though, and I'm glad that Maciej Cegłowski is on the case.

I'll just say this: I find it vexing that Simon finds abuse of the program likely, and yet mocks people because they find abuse of the program likely.


Posted by: politicalfootball | Link to this comment | 06-19-13 9:26 AM
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33 -- Yes, secrecy is the missing ingredient. And the bad faith upon which it is based.


Posted by: CharleyCarp | Link to this comment | 06-19-13 9:27 AM
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So? His abuse led to no loss of responsibility. This instance of abuse was disclosed by accident, to a committee one of whose members decided to then make it public.

As fearful of Google as the NSA, really? Google can't enforce confidentiality with prison.


Posted by: lw | Link to this comment | 06-19-13 9:28 AM
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Halford, where do you see Maciej making the suggestion you impute to him in 24?


Posted by: nosflow | Link to this comment | 06-19-13 9:31 AM
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Simon is pissed off about the abuse of existing programs first, views this as a pointless change of subject. That's laudable, but sympathy with poor people is politically like a public declaration of atheism in the US. He's out in the wilderness for caring.


Posted by: lw | Link to this comment | 06-19-13 9:31 AM
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I think Smith v. Maryland was wrongly decided. More important, though, I think there's a qualitative difference, of constitutional dimensions, between collecting some metadata where you think there's a crime and think specific metadata is going to help you solve it (and this is where 4th Amendment jurisprudence takes us off the rails -- they were investigating a specific crime in Smith v. Maryland, and would have gotten a warrant, I'm pretty sure) and collecting and storing *all* the metadata.

And I think Congress should rein it in. And make secrecy reviewable.


Posted by: CharleyCarp | Link to this comment | 06-19-13 9:32 AM
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I mean FISA has a provision for money damages if the government violates your rights. But it's totally unenforceable, because you can't find out if there was a FISA violation, and, even if you did, you're not going to be able to litigate the violation without disclosing secrets.


Posted by: CharleyCarp | Link to this comment | 06-19-13 9:38 AM
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And, if abuse is what you're worried about, I'd be at least as fearful of Google, Facebook, et al as the NSA.

This seems naive to me. If Google decides to engage in extortion, there are laws that deal with that, just as if Google tried to engage in torture or homicide.

If the American security apparatus decides to engage in extortion, then there's really no check against that. Just as with torture and homicide.


Posted by: politicalfootball | Link to this comment | 06-19-13 9:39 AM
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I found Juli/an San/chez's discussion of this stuff at Cato's blog (I know, I know) pretty solid, especially on why "where's the abuse?" is a terrible argument. (He's been on this beat for awhile.)


Posted by: x.trapnel | Link to this comment | 06-19-13 9:42 AM
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Testing Testing

In what could become a precedent-setting legal battle, a Florida judge has ordered that the NSA provide the court with phone records of a man accused of armed robbery. What does this case have to do with national security? Absolutely nothing, but the records exist and could exonerate the man.

Posted by: bob mcmanus | Link to this comment | 06-19-13 9:42 AM
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And on the corporate point, we give government extraordinary powers -- incarceration, the monopoly on violence -- on specific conditions of respecting our privacy. The fact that corporate use of data we give to various businesses is not similarly controlled doesn't do anything, I don't think, to vitiate those understandings.


Posted by: CharleyCarp | Link to this comment | 06-19-13 9:43 AM
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Another thing Simon misses is that you can care about more than one thing at a time. We can be concerned about police abuse of the poor and worry about the burgeoning security state.

And he completely misses the political nature of the situation. He wants us to worry about police abuse of poor people and insists that worrying about the security state is a political distraction from this. Of course, the opposite is true. The violation of the rights of higher SES people offers a political entry point for those people to start thinking about the abuse of poor people.

There's a reason that everybody pays into Social Security, and that everyone collects from it.


Posted by: politicalfootball | Link to this comment | 06-19-13 9:45 AM
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I mean, sure, if you stipulate that the American "security state" will act like the Stasi, then it will act like the Stasi. But there's nothing particular about technological change that makes that more or less likely. As we stand now, both the government and private industry are regulated by law (with, in both cases, loopholes and gray areas and some zones of potential abuse) to prevent abuse. If you don't think the government is constrained at all by law as to the uses of information, then of course you should be worried, but then you live in a totalitarian state. I don't actually think that's a realistic description of the way the current US government works, and that the paranoia is not helpful. It certainly isn't demonstrated by what we know so far about the program, which is that it was both legal under existing law and limited to trying to get preliminary investigative information about potential foreign terrorists.


Posted by: Robert Halford | Link to this comment | 06-19-13 9:47 AM
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A corporation can't incarcerate me, but it certainly can misuse my personal data to ruin my life, and is as much or more vulnerable to bad people who would like to do the same. I can't for the life of me think why we'd be willing to allow corporations free reign to use and manipulate data for their own purposes but categorically deny the government the right to do the same (in a regulated, controlled manner) for matters that are in the public interest.


Posted by: Robert Halford | Link to this comment | 06-19-13 9:51 AM
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Good point, Halford. Maybe we should also advocate for privacy laws like Germany has.


Posted by: nosflow | Link to this comment | 06-19-13 9:52 AM
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49 -- Yes, I'll sign up as well.

The Sanchez piece linked in 43 is pretty good.

47 -- I don't think it's paranoid to distrust people with a long record of bad faith and dishonesty. If they want to be trusted, they should act trustworthy.


Posted by: CharleyCarp | Link to this comment | 06-19-13 9:56 AM
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I mean, sure, if you stipulate that the American "security state" will act like the Stasi, then it will act like the Stasi.

I ain't "stipulating" shit about what will happen. I'm talking about current practice.

You and Simon seem to think it supports your argument that the government can act without legal consequences. I think it supports mine.

If you don't think the government is constrained at all by law as to the uses of information, then of course you should be worried, but then you live in a totalitarian state.

Who says the government isn't constrained at all? Certainly one way it's constrained is by whistleblowers, but there are also legal concerns.

You framed this conversation in terms of comparing the government to Google (just as Simon frames it as NSA vs. the Baltimore police). I'm merely pointing out that the security state operates under a great deal less constraint than Google - though certainly Simon's point about the cops is well-taken.


Posted by: politicalfootball | Link to this comment | 06-19-13 9:59 AM
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49 -- perhaps so, at least that's a debate worth having. But the general American consensus, for right or wrong, has been to not care very much about the use of metadata, and we would certainly kill off much of the business model of some very powerful companies if we were to do so.

51 last is, basically, dead wrong. Google does have to worry about some civil liability, is constrained by the extortion laws, etc. (as, mostly, are government officials) but mostly it acts in a black box that is free of regulation and investigation, and governed by contracts that its own lawyers drafted.


Posted by: Robert Halford | Link to this comment | 06-19-13 10:02 AM
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The government is not much constrained by law, and has actively concealed its violations of the law, with relative impunity. I'm not saying we live in a totalitarian state, although the Baltimore that Simon describes sounds a lot like one.


Posted by: CharleyCarp | Link to this comment | 06-19-13 10:04 AM
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Simon's latest may be tl;dr for me, but after reading a chunk of it, it seems fundamentally incoherent to me. He's exasperated that people are concerned about wide-scale intrusions of privacy and suggests that the problem is (implicitly white) liberals worry when the state may be spying on them and aren't concerned with the ongoing intrusions on the privacy of poorer black people in places like Baltimore. And that could be a perfectly good reason to be exasperated, and to want to harangue people about the plight of other, less fortunate people. That's all fine. But none of it really goes to the logic of the issue-- to leap, from that exasperation, to a claim that people shouldn't be concerned about the new privacy intrusions, wider in scope, just doesn't make sense. And that's all I'm getting from what I've read so far. Is his actual argument buried somewhere later in the post?


Posted by: essear | Link to this comment | 06-19-13 10:06 AM
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52 last makes me suspect that we're talking past each other. It seems self-refuting to me, and I can't make any sense out of it at all.


Posted by: politicalfootball | Link to this comment | 06-19-13 10:09 AM
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54 last: yes.


Posted by: Robert Halford | Link to this comment | 06-19-13 10:09 AM
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54: I did read all of both of Simon's posts, and this strikes me as a nice summary.


Posted by: politicalfootball | Link to this comment | 06-19-13 10:11 AM
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and we would certainly kill off much of the business model of some very powerful companies if we were to do so.

I am surprisingly ok with that. (Maybe your point is: the companies would not be, and would oppose it. Granted!)


Posted by: nosflow | Link to this comment | 06-19-13 10:13 AM
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55 last: think of it this way. What constrains Google's internal use of data, and its external collection of data? It sure isn't a requirement to act in accordance with public law, public purposes, or due process of law, and its activities are if for practical purposes anything kept as or more confidential as what the government does.


Posted by: Robert Halford | Link to this comment | 06-19-13 10:14 AM
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58 -- me too, at least sometimes depending on my mood. At the very least I think it's an argument for regulating the data-collection monopolies as something like public utilities.


Posted by: Robert Halford | Link to this comment | 06-19-13 10:18 AM
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56: Okay, maybe I'll try to get through the whole thing. Sometime.


Posted by: essear | Link to this comment | 06-19-13 10:22 AM
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54 No.

59 could be written by a person unacquainted with crime. If the Google was unconstrained, it could begin by using the information on its servers to outmaneuver basically all hedge funds, and also to keep careful tabs on the activity of SEC staff. This dark-side google would not have lost in a disagreement with the publishers.


Posted by: lw | Link to this comment | 06-19-13 10:24 AM
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52, 58, 60: me three! Comity!


Posted by: x.trapnel | Link to this comment | 06-19-13 10:25 AM
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56. Simon says more, in agreement with H's point that we already trust the police with their own cars and typewrites and stuff. Simon believes this point to be relevant, but he is wrong.


Posted by: lw | Link to this comment | 06-19-13 10:27 AM
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59: Yeah, see, I can only repeat: "I'm merely pointing out that the security state operates under a great deal less constraint than Google". This seems self-evident to me, and not "dead wrong."

I mean, sure, Google has information that the government doesn't yet have - so do all businesses - but there are a lot of obvious ways that the company is constrained in using that information.

And yes, Google needs to have more constraints, too.


Posted by: | Link to this comment | 06-19-13 10:28 AM
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65 is me, of course.


Posted by: politicalfootball | Link to this comment | 06-19-13 10:29 AM
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31: All his arguments defending the program are swallowed up by the secrecy and the bad faith that is the basis for most of the secrecy. He's assuming good faith from an apparatus that has shown bad faith at every turn, most notably in its arguments for excessive secrecy. Which arguments show contempt for the democratic process and the rule of law.

No - Simon's follow-up post linked in 4 explains a number of times that he doesn't assume good faith at all times, that the potential for abuse should be our greatest concern, and that he joins civil libertarians at the barricades on this front:

Quoting at length b/c the second Simon piece is very long:

The FISA process and its court are so completely shrouded in unaccountable secrecy that it is an unworkable apparatus for democracy. Independent review and oversight, with teeth, are the necessity here. And that oversight needs to have a healthy number of knowledgeable civilians -- duly vetted for national security -- who are professionals in the business of maintaining constitutional guarantees and civil liberties, and whose sole purpose in the process is to address those ideals. There needs to a congressional review process that can access the investigative documentation and arguments contained in affidavits for all FISA programming and investigative ventures, just as all decisions of the court need to be available to the vetted members of the intelligence committees. There needs to be periodic reporting -- a general report-card of sorts -- on the degree of civil liberties instrusions undertaken by the FISA process that is available for public review, even if such a document would be necessarily general about methodologies employed. This is the where the barricade ought to be. This is the fight to have.

Posted by: parsimon | Link to this comment | 06-19-13 10:30 AM
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62 -- you are misunderstanding me. I am not saying that Google is an unconstrained evil actor (though, at present, it is primarily constrained by its very smart business strategy that, if it acts like more or less a good guy in public, people will keep feeding it basically unlimited and unregulated data which it can then, subtly, use for its own purposes). But if you're primarily concerned about potential for abuse and domination, you should be just as worried about use of this stuff by private companies, which are internally regulated by rules of their own devising, and externally regulated largely by contracts of adhesion that they have drafted themselves. In a very real, if limited, sense Google writes its own rules in a way that the (currently configured) government does not. You will never, ever hear of most of the "abuse" because it is simply not public at all. And, while Google is of course constrained in its use of the information, so (within limits) is the current version of the American "security state."

I mean, sure, there are limits to the point, an actual evil totalitarian state or Stasi could make much worse use of personal data than Google ever could on its own. But in the relatively constrained world in which we live in, I'd be as much or more concerned about private abuse of this kind of information as public abuse, because corporations are mostly private sovereigns in their own domain.


Posted by: Robert Halford | Link to this comment | 06-19-13 10:47 AM
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Incidentally on twitter Maciej wrote "Could not agree more vigorously with Simon's penultimate paragraph."


Posted by: nosflow | Link to this comment | 06-19-13 10:52 AM
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69: Comity!


Posted by: MAE | Link to this comment | 06-19-13 10:54 AM
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Yes, to be clear, I couldn't agree more with the excerpt quoted in 67.


Posted by: Robert Halford | Link to this comment | 06-19-13 11:01 AM
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It's still not enough, although movement in the right direction, and does not outweigh the presumption of good faith otherwise given. I'm not saying the guy is history's greatest monster or anything, but I rather agree with Sanchez (and apparently Rehnquist!) on the degree of difference point, that rather undermines much of what Simon has to say.


Posted by: CharleyCarp | Link to this comment | 06-19-13 11:11 AM
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Secrecy itself has to be reviewable, and there have to be real consequences for improperly* invoking it.

* And I guess I'd distinguish between procedural impropriety and substantive impropriety here: still penalties for the former, but very harsh for the latter.


Posted by: CharleyCarp | Link to this comment | 06-19-13 11:13 AM
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69: Oh, good. I found Simon's follow-up incredibly responsive, honest, and clear.


Posted by: parsimon | Link to this comment | 06-19-13 11:13 AM
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Secrecy itself has to be reviewable

Isn't that the whole point of the quoted section in 69?


Posted by: MAE | Link to this comment | 06-19-13 11:18 AM
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It's not direct enough. My vision might be obscured by the clouds of burning straw from the bulk of the article.


Posted by: CharleyCarp | Link to this comment | 06-19-13 11:25 AM
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72: Off to read what Sanchez has to say.

I observe meanwhile that a lot of people have been reacting negatively to Simon because he mentions privilege (and acknowledges that yes, he's going there), and that does raise people's hairs. Er, hackles.

I have a mental picture in this situation of werewolves. Just so you know.


Posted by: parsimon | Link to this comment | 06-19-13 11:25 AM
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BTW, in 75, "69" s/b "67".


Posted by: MAE | Link to this comment | 06-19-13 11:27 AM
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I think 77.2 is crap, because I think Simon's invocation is crap. I agree with Simon that the response given to Baltimoreans whose doors are mistakenly destroyed is unacceptable, but this doesn't lead me to thinking that because some abuses are going on, no one can object to other abuses.

I disagree with a ruling that allows blanket DWI checkpoints in Indiana. I am incensed to be pulled over for a DWI checkpoint where I live. This isn't privilege and it isn't hypocrisy. And calling it either is bullshit.


Posted by: CharleyCarp | Link to this comment | 06-19-13 11:31 AM
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but this doesn't lead me to thinking that because some abuses are going on, no one can object to other abuses

That's not Simon's point at all. Rather, he's arguing that middle class people only object to overreach by the state when and to the limited extent that it affects them personally. So if all of this outrage only results in a narrow fix that addresses the hoovering of the phone records of more-or-less affluent white folks, without a broader re-examination of the whole Internet-era security state apparatus, then not only have we lost an opportunity to have that re-examination, but it demonstrates that people of "privilege" don't really care about the fundamental principles involved, just the narrow way in which they feel that their own rights have been infringed upon.


Posted by: MAE | Link to this comment | 06-19-13 11:40 AM
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76: Right. If Simon is alarmed by the stuff he claims to be alarmed by, what is he complaining about? The answer appears to be: Other people not-so-smart-and-aware-as-he-is who are worried about the same stuff.

I thought essear's 54 captured this incoherence nicely. I was going for the same thing in 35.last.


Posted by: politicalfootball | Link to this comment | 06-19-13 11:42 AM
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I suppose I'd be more sympathetic to the point in 80 -- which still has a lot of straw imo -- if the sentiment in 67 lead and dominated the article, rather than the sentiment in 54.


Posted by: CharleyCarp | Link to this comment | 06-19-13 11:48 AM
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I agree with 80.


Posted by: parsimon | Link to this comment | 06-19-13 11:48 AM
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79/80 captures the different ways this piece is being read. My reading is the same as Charley's, and I think Simon is clearly saying we have no business objecting to this stuff while the cops are still being so abusive.

We seem to be reading this sentence quite differently:

And if I sound exasperated with other liberal voices on this issue it's because their barricades are in the wrong place, facing the wrong way, defending the wrong moral and legal terrain.

It's true that Simon does spend a lot of time trying to have it both ways. Again, I refer to essear's 54.


Posted by: politicalfootball | Link to this comment | 06-19-13 11:51 AM
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We do indeed seem to be reading it differently. What you call "trying to have it both ways", I call "nuance".


Posted by: MAE | Link to this comment | 06-19-13 11:55 AM
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81, 79 -- I just don't think you guys actually read the article very carefully.

He very explicitly says that he's not saying that the existence of some abuses means that you can't object to other abuses. He couldn't be more clear on this point. What he's saying is that investigation of metadata by itself is not an abuse (though the uses of that metadata could potentially be an abuse, as could may other things). He's also saying that it takes a weirdly blinkered view of the reality of government power to think that the collection of the metadata itself, as opposed to the uses to which the metadata is put, is the right place for people to take a stand. Finally, he's very specifically saying that there should be a lot of disclsoure about, and constraints put upon, programs like this to constrain abuse and make sure that their use is compatible with public values.

I think the "privilege" issue is Simon's understandable annoyance at people who are getting particularly worked up on this issue, with the thought "Oh my God the GOVERNMENT can look at MY phone records to determine whom I've been calling and where I've been going!" Well, yes, yes it can. It's been able to do so legally for a very long time and has in fact been doing so as a practical matter for a great number of people. Sometimes that has led to abuses, sometimes not. People, like Simon, who have lived with the issue for a long time are very much aware that this is a social choice we've already made as a society, and that there are useful and positive as well as horrible and negative effects of this power of the government. The question is how best to regulate it, not whether or not the power exists. In that context, the limited use of call record metadata to identify patterns that help identify and locate terrorism suspects looks like one of the least important spots to stake your "hold the line" claim, because the actual intrusion involved is fairly minimal, and the use to which the data has been put seems mostly legitimate. So, why is this an issue? Well, because all of a sudden internet-y people who have been able to pretend that the government didn't have certain powers, and that we hadn't made certain social choices, have now been forced into the realization that yes the government has those powers and yes we've made those choices. What Simon is trying to do is to get people into a more clear-headed and less reactive discussion about the costs and benefits of choices we're actually making, which will impose some limits on these powers of the government while not just pretending that metadata analysis is some grand new civil liberties violating innovation that is or should be blanket-prohibited to the state.


Posted by: Robert Halford | Link to this comment | 06-19-13 11:57 AM
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I guess I just don't give even half a shit about how consistent some unnamed critic of a particular NSA program has been about other issues, any more than I care about Snowden's or Greenwald's personalities. I think these issues are misdirective, and often intentionally so, of the question whether what NSA is doing (and we still know only some of that) is or ought to be (a) permissible and (b) funded by us.

(I don't feel the same way about the Google issue: discussion of corporate storage and use of personal data seems especially germane.)

I thought the OP took the right line on that in disagreeing with Simon.


Posted by: CharleyCarp | Link to this comment | 06-19-13 11:58 AM
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82: Charley, I love you, but if the objection is to the order in which Simon's paragraphs are written, I may sympathize, but the task is on the reader to read the whole thing, carefully.


Posted by: parsimon | Link to this comment | 06-19-13 11:58 AM
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I think Simon is clearly saying we have no business objecting to this stuff while the cops are still being so abusive

Whereas I think Simon is clearly saying that once our objections to this stuff are addressed to our satisfaction, most of us will happily go back to ignoring the fact that the cops are still being so abusive.


Posted by: MAE | Link to this comment | 06-19-13 11:58 AM
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I'm pwned tremendously by 86.


Posted by: parsimon | Link to this comment | 06-19-13 12:01 PM
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88 -- That's right, Parsi, my only disagreement with Simon is to the order in which he wrote his paragraphs. And I thank you for the lecture on reading comprehension.


Posted by: CharleyCarp | Link to this comment | 06-19-13 12:04 PM
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88: Simon made a choice of what he wanted to emphasize.


Posted by: peep | Link to this comment | 06-19-13 12:17 PM
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91 - I am not in a fight with you! I've been looking at the Sanchez thing linked in 43, and damn, it is too long at this time.

||

I've just spent 20 minutes in the back yard fretting over the household cat, up in a tree: my housemate called to me "Hey, can I get your help to assess this cat situation?" This cat is astonishingly adept at climbing trees. I haven't had a cat like this ever. He's so acrobatic that he swarms up a tree in 30 seconds and is suddenly 30 feet overhead.

He seems most of the time able to work his way down again, but once a week or so he winds up on 1-inch-thick branches very high up. (I believe he wants to be a squirrel.)

Anyway, it worked out okay. I'm in awe of this cat.

|>


Posted by: parsimon | Link to this comment | 06-19-13 12:40 PM
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68. What are the abuses Google or even fb are guilty of? Sale of user data, sure. They've hurt publishers economically-- what's the most underhanded thing either has done to content owners for their own advantage?


Posted by: lw | Link to this comment | 06-19-13 12:44 PM
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Because thus far the folks who are outraged at the NSA for this particular affront are having a hard time making a case against the stated purposes of an actual program with actual goals. That stuff keeps getting in the way of what they really want to discuss, and discuss passionately, which is purely theoretical:

Simon says, again and again: Nothing to see here. You're looking in a place where there isn't any problem - or at least, only a theoretical one.

And yes, he contradicts this elsewhere. Incoherence is no defense. What is he saying here, if not that Cegłowski's concerns are trivial? And if that's what he's saying, I disagree.


Posted by: politicalfootball | Link to this comment | 06-19-13 12:44 PM
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What he's saying is that investigation of metadata by itself is not an abuse

Right, and in this context that's one of the many ways he's wrong. Sure, metadata isn't protected by current Fourth Amendment doctrine (which is bullshit), but not everything that's constitutional is by definition non-abusive. As the Sanchez piece linked in 43 crucially points out, the statutory provision under which this data collection was apparently conducted provides for obtaining material "for an investigation to protect against international terrorism or clandestine intelligence activities." So now, apparently, the entire country is the subject of some all-encompassing "investigation", just as the entire planet has been transformed into a battlefield in the global war on terror. That's a massive abuse of authority, putting aside the possibility of "misuse".


Posted by: potchkeh | Link to this comment | 06-19-13 12:48 PM
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Sure, metadata isn't protected by current Fourth Amendment doctrine (which is bullshit)

Yah. Simon makes heavy use of the "this is old news" argument, which is accurate, sure, but so what?


Posted by: politicalfootball | Link to this comment | 06-19-13 1:05 PM
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Yeah, I just don't think things like 96 or 97 are correct or realistic about either the world we live in or the government we have. You honestly are worried that the government is looking through information about you that's basically less intrusive than what your grocery store's loyalty program has? That in itself (and putting aside any problem of abuse) is actually a problem that we're concerned about, the accessing of the metadata itself? When the government (and, as I keep saying, all sorts of other private and other institutions) can and has for a long time been able to track the same kind of information -- you can use all sorts of publicly available information to track people and come up with incredibly informative correlations.

The abuse and misuse of the data argument is a very real and serious issue. That there's a substantial and intrusive privacy violation simply by the (legal) collection of metadata itself, regardless of the purpose or the use to which that metadata is put, seems like handwaving to me. Which I guess is part of Simon's point, and I agree with him there.


Posted by: Robert Halford | Link to this comment | 06-19-13 1:17 PM
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A corporation can't incarcerate me, but it certainly can misuse my personal data to ruin my life . . .

Bruce Wilder made a comment at CT elaborating on that thought which I found useful:

The darker uses of personal data, held in private (aka corporate business) hands have become ubiquitous. There's the MERS database, used by big banks to track the securitization of real estate mortgages; it is well on its way to becoming a real estate registry, handing the banks the authority to determine who owns a house or who owes very substantial debts. There are the credit bureaus, whose data is regularly used now to screen job applicants. There's the growing use of debit cards for the unbanked, channelling even government benefits through the hands of private banks. . . .

Posted by: NickS | Link to this comment | 06-19-13 1:23 PM
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You honestly are worried that the government is looking through information about you that's basically less intrusive than what your grocery store's loyalty program has?

I'm not especially worried that the government is looking through information about me. I'm (honestly!) worried that the government is indiscriminately collecting a shit-ton of information about everybody. And I don't concede that call metadata is "basically" less intrusive that what the grocery store maintains--knowing what I eat is less interesting than knowing who I communicate with--but I'm worried about that too. I have plenty of worry to go around!

Nor am I convinced that the collection here was legal. Not unconstitutional, probably. But not clearly within the bounds of what Congress authorized (the fact that Roger Vinson signed a secret order is no comfort here). When the national security apparatus takes it upon itself to secretly determine that it has massive authority like this, in a way that makes any challenge or oversight impossible, I'm worried, apart from misuse. (Though I'm plenty worried about misuse, too, and the Sanchez post offers plenty of concrete reasons.) If we want to have an open debate about something like this and Congress wants to pass a law directing the NSA to start collecting all this data, I still wouldn't like it, but it would be a much different discussion.


Posted by: potchkeh | Link to this comment | 06-19-13 1:55 PM
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You honestly are worried that the government is looking through information about you that's basically less intrusive than what your grocery store's loyalty program has?

My grocery store may have a loyalty program, but I've certainly never joined it.


Posted by: jackmormon | Link to this comment | 06-19-13 1:55 PM
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101: Just give them the number 867-5309


Posted by: Benquo | Link to this comment | 06-19-13 1:56 PM
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102: For a long time that was a valid account with Safeway's loyalty program in the Bay Area. I think they finally cottoned on, though.


Posted by: Josh | Link to this comment | 06-19-13 2:04 PM
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I've read the whole Simon article and still find it hard to pin down his argument. Let's try to track down the "barricade" motif. He says:

This is where the barricades need to be. Reform of the systemic is the only practical hope we have of rationalizing the necessary and continual conflict that will accompany the introduction of every single new technological capability.

and later:

There needs to a congressional review process.... There needs to be periodic reporting -- a general report-card of sorts -- on the degree of civil liberties instrusions undertaken by the FISA process that is available for public review, even if such a document would be necessarily general about methodologies employed. This is the where the barricade ought to be. This is the fight to have.

So for Simon, the right battle to lead is some kind of systemic reform that transcends the particular technology. It should be about review and transparency, keeping secrets from proliferating, ensuring that civil liberties are not being violated. Okay. That's reasonable enough. And where does he think the barricade is for the others?

But more to the point, the DNA decision shows exactly how much of a long-shot argument it will be to convince this Supreme Court that scientific and technological capabilities aren't inherently neutral, and that an argument about possible misuse isn't akin to urging society, in fear of such, to abandon the practical possibilities of science and technology. Yet, foolishly, I believe that is where Mr. Maciej and others are suggesting we erect the barricade.

And later:

And this, too, is why I won't climb the barricade where Mr. Maciej thinks I ought. Because to do so only at those places where the cost is to one America, and not the other, is to assure that only one part of our country will continue to sacrifice, and that the rest of our nation will remain inert while real affronts to civil liberties continue.

So, he thinks for Cegłowski ("and others") the issue is about a specific technology; that the goal is to get the government to not use that specific technology; that the issue ends there; and that this would benefit only the well-to-do and not the poor. I don't actually see that in what Cegłowski wrote at all.

To the extent that his argument is going in the general direction of "there's a broad set of issues here that should be solved in a uniform and systematic way, not just a single abuse to rectify", I think he'd actually find broad agreement from the people he's criticizing, and that his tone is counterproductive: better to convince them that he can place this in a broader context, suggest solutions involving increased government oversight, transparency, etc that would help the poor of Baltimore as well as the middle and upper class whites. Belittling the concerns of his audience doesn't seem like the way to do that. Rather than "their barricades are in the wrong place, facing the wrong way, defending the wrong moral and legal terrain", he could have been saying something like "look, your barricade is actually connected to this other barricade I've been manning for years, and that problem you're worried about is encompassed by this larger problem".

And that's leaving aside the part where he talks about how he's glad the government has his data and giving up this data is part of the "responsibility" side of the equation, not to mention the part where he appears to argue that this new technology can't provide anything that older methods could deliver (if that were the case, why is the government doing it?). There are several threads and they're not cohering when I read this.


Posted by: essear | Link to this comment | 06-19-13 2:28 PM
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can't provide anything that older methods could deliver

Should read "couldn't deliver", obvs.


Posted by: essear | Link to this comment | 06-19-13 2:29 PM
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Is "I don't like the government spying on me, but Google collecting all the information it can about me is AWESOME!"" an actual position anyone holds? Probably some dipshit libertarian somewhere, but no one here seems to hold it, so I don't see the relevance.


Posted by: Walt Someguy | Link to this comment | 06-19-13 2:36 PM
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103: Or the real person with that number closed their account/canceled their membership?


Posted by: Benquo | Link to this comment | 06-19-13 2:55 PM
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Is "I don't like the government spying on me, but Google collecting all the information it can about me is AWESOME!"" an actual position anyone holds? Probably some dipshit libertarian somewhere,

Every once in awhile I look at the comments in an article on ArsTechnica or some other techish site, and I think you're underestimating the number of dipshit libertarians, especially within the software industry.


Posted by: x.trapnel | Link to this comment | 06-19-13 3:03 PM
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Wait, are people seriously arguing that when your grocery store sells your diaper receipts so Gerber can send you junk mail, that's as dangerous as the government getting full information on everyone's email content, physical locations, and complete social network and interactions? That doesn't pass any kind of common sense test. Did anyone pay attention during the whole J Edgar Hoover part of their American history books?


Posted by: PGD | Link to this comment | 06-19-13 3:25 PM
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Someone in my house believing I'm sexually active, or pregnant, could be a considerable personal risk to me. (This has already mildly happened, and was amenable to a graceful fix -- the targeted flyers have enough other ads that they don't look as targeted.)


Posted by: clew | Link to this comment | 06-19-13 3:33 PM
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I was going to say `but of course on average J. Edgar was more dangerous' but on consideration I'm not sure. There's a lot of personal violence policing sexual behavior. Do we have an estimate on m & m due to Hoover?


Posted by: clew | Link to this comment | 06-19-13 3:34 PM
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More.

Did anyone pay attention during the whole J Edgar Hoover part of their American history books?

We never got there.


Posted by: nosflow | Link to this comment | 06-19-13 3:35 PM
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Do we have an estimate on m & m due to Hoover?

I think he was more of a skittles man.


Posted by: nosflow | Link to this comment | 06-19-13 3:37 PM
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You better believe who I call when is a lot more important to me that what brand of beer I bought last night.

(And I got 45 cents a gallon off when I last bought gas -- for putting my Albertsons card in the pump. When's the last time NSA gave me anything?)


Posted by: CharleyCarp | Link to this comment | 06-19-13 3:43 PM
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I think it's the people saying that they are shocked by this new unprecedented intrusion who missed the J. Edgar chapter in those books.

And yes, sure, in the right hands purchases can be as or more informative than phone records. But in any event Google and Facebook have and regularly use access not only to that kind of information, but (unlike the NSA/Verizon metadata issue) the actual content of your communications.


Posted by: Robert Halford | Link to this comment | 06-19-13 3:54 PM
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Part of this, too, is that this isn't your grandparents' call metadata. With cell phones, it's not just who you're calling and when and how long--it's your *location*, which is a pretty big deal.


Posted by: x.trapnel | Link to this comment | 06-19-13 4:00 PM
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In any event, let's look at what the NSA is actually accused of doing. Namely, doing apparently strictly controlled (this is important) searches of a large volume of phone logs, with the search terms limited to tracking or identifying known terrorists, in hopes of aiding a further investigation.

Now, is there a serious danger that, having access to these records, they could be misused for awful purposes? Of course. Do you need disclosure and transperancy to ensure that this doesn't happen? Yes, and you also need oversight. But -- putting aside those concerns -- is the search ITSELF an independent and grave harm? I think it's hard to argue that it is, in a world where there is already as much public knowledge of our "metadata" as there is already.


Posted by: Robert Halford | Link to this comment | 06-19-13 4:01 PM
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There was a nice Deutschlandradio "Background" episode just the other day on the way both private industry and government collect and (mis)use this data. Or at least, I think it was good. My German sucks, and I was listening while working, so I only got the vague sense that everything was terrible. (There's a transcript at the link if you want to run it through Google translate--oddly it doesn't seem to like doing so directly, but you can cut and paste the print version easily enough.)


Posted by: x.trapnel | Link to this comment | 06-19-13 4:08 PM
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Technical question:

Simon writes in his rebuttal:

". . He believes a secret court cannot provide sufficient public oversight of its rulings or treatment of defendants, or even address purposeful affronts to privacy and civil liberties. I, too, believe this is exactly the case.

Finally, an apple meets an orange worthy of note. "

Maciej amends his essay accordingly:

"First, there is the scope of the order. The Baltimore operation, and others like it, were limited to a specific criminal investigation. They were obtained under a warrant under a subpoena setting limits on what would be collected, and for how long.

The NSA program is universal and appears to be open-ended. Information is collected in aggregate. The program operates under the authority of secret court order, not a warrant. It is not clear whether the Administration even believes this type of surveillance requires a court order."

What is not clear to me from either of these: was the original Baltimore court order somehow public? If so, in what way was it public? Was it that a diligent young hopper or expert consigliere could go to the courtroom and physically look up a single piece of paper, like Partlow looked up info on Malatov? Was it posted on a bulletin board? Did it have to be published in the paper? Did it have to be posted on the phone? And if not, what were the terms of its secrecy? My memory from the Wire is that there were in fact secretive court orders and warrants issued, for the obvious reason that having them not be secret would give their objects the chance to change behavior. So what was the pre 9/11 pre-high-technology law and standard practice regarding the secrecy of oversight?

Tangentially, I have to say I love the line, "Finally, an apple meets an orange worthy of note."


Posted by: Ile | Link to this comment | 06-19-13 4:11 PM
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Sorry, my italics were all messed up.


Posted by: Ile | Link to this comment | 06-19-13 4:12 PM
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They're also accused of concealing and lying about what they are doing, and no one, but no one thinks the description in 117.1 is a complete account. I don't actually think it's an accurate account even on its own terms. They're not searching data on Verizon servers -- let's say that's equivalent to going into you house with a warrant to see if you have the murder weapon -- but are copying and taking possession of all the data, to search a leisure.

I understand that they have some sort of internal policy that such searches, of the government's existing databases, need additional authorization. This might even be true. But I'm not happy about that when the constitutional prohibition is on searches or seizures, and once they have possession of the data, I don't think I'd have a claim based on the Constitution for misuse of the data. For better or worse, the Constitution and centuries of tradition make the moment of acquisition of the data the place where regulation/outside supervision takes place.

Halford, did you see the Sanchez line re Rehnquist?


Posted by: CharleyCarp | Link to this comment | 06-19-13 4:13 PM
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I'm not going to read Sanchez, I don't read anyone affiliated with the Cato Institute unless I'm getting paid for it. I thought the dialogue in 112 was very clarifying, on both sides.


Posted by: Robert Halford | Link to this comment | 06-19-13 4:29 PM
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Hell, two thing I have read this week

1) Is about Snowden's comment activity on Japanese and Swiss sites. Apparently he was a stock trader, and would give tips, and was very proud of his success. Anybody know if he has an account in HK? (link in Comments at LGM)

2) was about the NSA trading information with Wall Street Yeah FDL from Bloomberg

Thousands of technology, finance and manufacturing companies are working closely with U.S. national security agencies, providing sensitive information and in return receiving benefits that include access to classified intelligence, four people familiar with the process said.

Posted by: bob mcmanus | Link to this comment | 06-19-13 4:39 PM
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NMM to Gandolfini AND Thompson? Kind of a bummer day.


Posted by: Natilo Paennim | Link to this comment | 06-19-13 4:50 PM
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3) Mike McConnell former Director of National Intelligence and now Vice Chairman of Booz Allen, Snowden's employer.

4) Apparently Assange is mediating Snowden's talks with Iceland. One thing I was sure about was that Iceland very much prefers that immigrants bring money with them.

Switzerland? Bahrain? Caymans?

If Snowden had used his position to make 10 quick millions, would it bother you? I would love it, as long as he showed how it was done and named some names that he knows also did it.


Posted by: bob mcmanus | Link to this comment | 06-19-13 4:51 PM
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Snowden could be the ONE.

If he has proof that the electronic financial markets are surveiled, monitored, and utterly corrupted he could like bring Western Civ crashing down.

Just try to promise the ETF guys that their information is secure and irrelevant. They'll trust the US gov't, especially the overseas ones. Right.

Greenwald should be scared shitless.


Posted by: bob mcmanus | Link to this comment | 06-19-13 4:58 PM
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Japan Times article on Snowden

A search of the Ars Technica website reveals that Durf and Snowden chatted at least six times in 2006 between April 26 and July 28. They wrote about things such as expat life in Japan, bank wire transfers, stock markets, a drug bust, and a man jumping from the World Trade Center on 9/11. Their tone was often cordial, as they sought to share information and answer questions from other commenters.

Durfee and Snowden communicated again two years later, on Dec. 2, 2008. Durfee asked a question about the markets, while Snowden, who was stationed with the CIA in Geneva at that time, spoke with expertise about day trading on the stock market, which was falling in the wake of the Lehman Brothers collapse weeks earlier.

Snowden often posted details about his stock trading, which raises questions about the nature of his work and whether intelligence operatives with top secret clearances would have access to information unavailable to other market players.

After posting 9500 comments in 7 years, Snowden went almost silent in Feb 2010.


Posted by: bob mcmanus | Link to this comment | 06-19-13 5:29 PM
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Fair enough. How about, then, United States v. Knotts, 460 US 276, 283-284 (1983)?


Posted by: CharleyCarp | Link to this comment | 06-19-13 6:20 PM
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128: Also the concurrences in the GPS case last term. Though I think the constitutionality of all this is at best a side issue.


Posted by: potchkeh | Link to this comment | 06-19-13 6:38 PM
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Knotts really really does not support the idea that this program is unconstitutional. Haven't read the GPS concurrences yet. I agree that the constitutionality is mostly a side issue -- the program as described is almost certainly legal, though I haven't looked in detail into the statutory argument Potchkeh raised above.


Posted by: Robert Halford | Link to this comment | 06-19-13 7:04 PM
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The question reserved in Knotts is whether you can simply scale up from a single targeted surveillance to a mass surveillance.


Posted by: CharleyCarp | Link to this comment | 06-19-13 7:37 PM
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I don't think an offhand line brushing aside the issue of a "dragnet" as something that didn't need to be immediately resolved in the case before the Court, in a case that expressly holds that it's constitutionally OK for police to put an electronic "beeper" on someone's car to track their movements because you don't have a protectible reasonable expectation of privacy that the government will not track your movements outside the home, is remotely supportive of the idea that the NSA metadata program is unconstitutional. Read fairly and as a whole, Knotts is a strong (but not dispositive) case for the pro-government side of that argument.


Posted by: Robert Halford | Link to this comment | 06-19-13 7:51 PM
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I'm not saying Knotts supports an argument of unconstitutionality. In the midst of a huge ongoing project of dismantling the Fourth Amendment even Rehnquist can see that mass unthinking surveillance is different from targeted surveillance.

If you're comfortable with where the Court has gone with the Fourth Amendment over the last 40 years, then nothing I say is going to have any impact. I think they've gone way too far with it, and I think that the details that have been revealed so far will turn out to be the most legitimate tip of the iceberg of what they've actually been doing.

And as we hear the various and changing stories about what the benefits of the program are, the cost/benefit of the thing is just going to get worse and worse. Smith (v. Maryland) really was the rapist. Knotts really was making speed. What have they got to show for this vast intrusion? It may not be nothing, but it's a whole lot more like Simon's innocent Baltimoreans with bashed in doors than it is like superspies catching supervillians.


Posted by: CharleyCarp | Link to this comment | 06-20-13 12:23 AM
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So they'll keep lying about it, not to fool the terrorists, who after all understand good operational security, but to deceive the Americans public generally.


Posted by: CharleyCarp | Link to this comment | 06-20-13 12:26 AM
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not to fool the terrorists, who after all understand good operational security

They don't seem to, actually. They talk in clear on mobile phones, they don't use encrypted email or anonymised Internet access, they even put their leader in the house of a courier who had been compromised for the last nine years.


Posted by: ajay | Link to this comment | 06-20-13 1:47 AM
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So if all of this outrage only results in a narrow fix that addresses the hoovering of the phone records of more-or-less affluent white folks

Verizon has a colour-bar? I had no idea. Why on earth would you think mass surveillance only affects white people? That's ridiculous.


Posted by: Alex | Link to this comment | 06-20-13 3:05 AM
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I don't know anything about Michael Hastings, but he's a journalist, just died in a car crash, and was looking into the NSA thing. Oh, and WikiLeaks just said that he contacted them a few hours before his death and said he was being investigated by the FBI.


Posted by: Awl | Link to this comment | 06-20-13 4:49 AM
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137:There is plenty around on Hastings. Ian Welsh wrote a post. MH was a good one. Tragedy.

I have, as of now, 'bout zero conspiratorial feelings. It is a killer road, a deathtrap for partiers coming back from Hollywood. It was 4:45 am.

There was a direct witness who said the car was going fast, did not say speeding, and "jacknifed" into a tree and exploded. "Jacknife" is something tractors and trailers do, and I am not sure what it would mean with a car. End over nose?


Posted by: bob mcmanus | Link to this comment | 06-20-13 6:11 AM
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136: I wasn't asserting that the NSA program only affects more-or-less affluent white folks—that would indeed be a ridiculous thing to imply.

Rather, I was echoing Simon's implication (which I think is a valid) that there are plenty of more-or-less affluent white folks who object to the metadata hoovering only because that their own phone records are included, and that they'd be entirely OK with a similar program that only gathered the metadata of poor people, people of color, immigrants, and maybe that guy who lives down the street with that accent I can't quite identify.


Posted by: MAE | Link to this comment | 06-20-13 6:35 AM
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I have, as of now, 'bout zero conspiratorial feelings

OMG not only did they kill Hastings, they've replaced mcmanus with a pod person!


Posted by: Awl | Link to this comment | 06-20-13 6:48 AM
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I have never considered myself conspiracy-minded. Never given JFK or the other assassinations a second thought. I am a mild troofer, I mean Bush + Saudis, cmon. Anyway, historical materialism means you don't need no Illuminati.

This is Why Krugman ain't worth the pixels.

FOMC may be heading for "A Potentially Tragic Taper," "this will end up looking like a historic mistake."

Need I link to banker bonus season? Or the academic papers about low inflation and wages/inequality? Tragic mistake my ass.

Krugman is either an idiot or a tool. He has zero credibility.


Posted by: bob mcmanus | Link to this comment | 06-20-13 7:24 AM
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Try taking that Krugman column to the guy in the street.

"Central Bank error in rich people's favor?"
"Error?"

Get outa my unemployed struggling face, you are not even funny.


Posted by: bob mcmanus | Link to this comment | 06-20-13 7:30 AM
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This argument that Simon makes in the comments doesn't really work:

"So taking your point -- and my fears -- further, let me ask you to contemplate the following scenario: Because we don't fight the authoritarian overreach of our national-security apparatus with systemic reform, and because we make this datapile, at this time, and for this program, our target, what happens if we get hit again? What happens with another two or three or six thousand dead, and at the first congressional hearing, the intelligence director or the FBI head or the NSA director, he sits there with a flow chart showing legislators the actual telephonic intercepts that can be found, forensically and after the fact, in the communications of co-conspirators? And what if, with cameras running, he's asked why they couldn't pick up that electronic trail before the strike? And what if he says, remember, senator, we took that program down because of concerns over individual privacy?"

"At that point, the rollback and overreach on civil liberties/privacy will make whatever you and I are arguing about now seem quaint, if not antique. At that point, there will indeed be warrantless domestic wiretapping by national security agencies, unsupervised, as hasn't occurred since the Church Commission."

On the other hand, if we DO have the metadata program and get hit again, the NSA is going to say "you know, this one was just a fluke - we don't really need any more expansive wiretapping powers or anything like that," right? Like hell. After another attack, they'll want and get more power regardless. The argument only works to the extent that the metadata program meaningfully reduces the risk of another attack, and none of us is in much position to judge whether that's true.


Posted by: FHD | Link to this comment | 06-20-13 11:02 AM
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The routine collection of universal data (both metadata and email content, which is what we're talking about) combined with the strong police powers we have make it possible for government to control civil society in a very finely detailed way. Pick an individual, trace their network, find parts of it that are either involved with or networked to groups that are outside the law in some way -- e.g. anarchists who break windows, people who send money to foreign charitable organizations connected to 'terrorist' political movements -- then start with those nodes and take the network down. As someone said, turnkey totalitarianism -- an automated Stasi.

Now that we're building out the capacity to do this though, there's a legit question as to whether it can be undone.


Posted by: PGD | Link to this comment | 06-20-13 5:13 PM
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114: You better believe who I call when is a lot more important to me that what brand of beer I bought last night.

I believe that the aggregate record of my purchases including times and locations to be of a similar order of importance to me as who I call.

116: With cell phones, it's not just who you're calling and when and how long--it's your *location*, which is a pretty big deal.

In great contrast to my credit card purchases which have had associated location data for decades.

I certainly believe the 4th has been abused and stretched beyond recognition, and that the secrecy/extraordinary powers of government make that the scariest current scenario, but ultimately I see corporate data about people as possibly being more harmful. And there are a number of aspects of the current ZOMG!!!!111!!! reaction that put me (perhaps illogically) more in the Halfordian camp on this one.


Posted by: JP Stormcrow | Link to this comment | 06-20-13 7:23 PM
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144: The most immediate danger is its use by the most unprincipled components of the government against roadbumps like Powell, and against whistleblowers.
145: JP, there's a difference between knowing where you are on your weekly run to the Piggly Wiggly and knowing where you are 24 hours a day as the phone companies do and, probably, the government does.


Posted by: Eggplant | Link to this comment | 06-20-13 7:39 PM
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JP, I understand your position, but cannot understand Halford's -- I post liberal;ly on Facebook, and don't care who knows that I was up at Jerry Johnson with a friend after work on Tuesday. But what witnesses I called earlier that day in connection with a case I have against the State of Idaho, how long we spoke, what order I called them -- that's not on Facebook, and keeping that information out of other people's hands is part of my job.

And when you get to content monitoring -- which supporters of the current NSA revealed programs don't want to talk about, for obvious reasons -- this is a very big deal. It's not a secret that I have a foreign client in a contract dispute with the US government (the representative of which, in this dispute, are also overseas). Do we really have to use couriers and flash drives to communicate when/if we want to talk about negotiation strategy?


Posted by: CharleyCarp | Link to this comment | 06-20-13 7:56 PM
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147: Yes, it did occur to me that lawyers might have more specific legitimate concerns of that nature that do not apply to me.


Posted by: JP Stormcrow | Link to this comment | 06-20-13 8:00 PM
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Obviously, listening to the content of attorney-client communications is different than collecting "metadata" phone records that reveal no more than the existence and time of incoming and outgoing phone calls. Which, by the way, the State of Idaho can get from you right now, if it had a legitimate reason to do so.


Posted by: Robert Halford | Link to this comment | 06-20-13 8:05 PM
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With a subpoena, that I can move to quash, or limit where I've got a credible work product claim.

They're doing content too. We'll save a place up on the barricades for you for when that comes out.


Posted by: CharleyCarp | Link to this comment | 06-20-13 8:11 PM
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(And, as you know, Google is looking at the content enough to know what ads to send you. I'm still working out what I think I have to do about that.)


Posted by: CharleyCarp | Link to this comment | 06-20-13 8:13 PM
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Although, I suppose this is a fine group to ask. I'm thinking of moving everything -- my cloud -- to a server in the UK. (Or maybe it's in the EU somewhere). Stuff is going to get there by email from the US -- so am I actually gaining anything? I'm currently using a US based email system, but can switch to UK based easily enough (I already own a UK domain, and have server space). But emails will nearly always have one end or both in the US. So does this take me right into the maw of Prism, and its already disclosed content acquisition?


Posted by: CharleyCarp | Link to this comment | 06-20-13 8:23 PM
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147: Yes, it did occur to me that lawyers might have more specific legitimate concerns of that nature that do not apply to me.

Because hey, who gives a fuck about lawyers or journalists or dissidents who might have foreign contacts, right? Not my problem.

Halford has successfully dragged this conversation in unfortunate directions. I still contend:

1. That government surveillance is more dangerous than corporate surveillance, and that
2. Point 1 doesn't matter at all to this conversation, because it is entirely possible to be opposed to corporate and government surveillance.


Posted by: politicalfootball | Link to this comment | 06-20-13 8:27 PM
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The more basic point, though, and the point I keep trying to make, is that the important restriction is on the use of the data, not general inclusion in a big data-crunching project. If the Feds have call logs that include literally billions of phone records, which happen to include logs of the conversations with your client, and run a search on those billions of records that is limited to tracking specific whereabouts information of a specifically identified foreign terrorist, are you harmed? Not particularly. Now, if you're in a lawsuit with the Feds and they secretly search for your records to help them win the lawsuit, obviously that's unacceptable. But that's where the fight should (and as a realistic matter for the future, will only) be -- on use, not whether the government can do big metadata crunching exercises at all and for any purpose.


Posted by: Robert Halford | Link to this comment | 06-20-13 8:31 PM
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No, Congress can tell them not to gather my metadata unless and until there's an actual legitimate need to do so.

And, as I been trying to get across, I'll never know if they use the metadata, or the content they are also gathering, to win a lawsuit. So I don't ever get to fight it then. Now, when they are taking possession, is all we have.

In hindsight, we know that the Third Circuit was right and the US Supreme Court wrong about United States v. Reynolds. Well, I do, and I presume you do too. But our government doesn't -- in any branch -- and so it lies about like Justice Jackson's loaded weapon from Korematsu ready for the hand of any authority.


Posted by: CharleyCarp | Link to this comment | 06-20-13 8:49 PM
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Congress has told them not to gather your metadata unless and until there's an actual legitimate need. Then they decided, secretly, that there is such a need. But a secret judge secretly agreed, so it's all fine.


Posted by: potchkeh | Link to this comment | 06-20-13 9:03 PM
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Congress has told them not to gather your metadata unless and until there's an actual legitimate need. Then they decided, secretly, that there is such a need. But a secret judge secretly agreed, so it's all fine.


Posted by: potchkeh | Link to this comment | 06-20-13 9:03 PM
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If the Feds have call logs that include literally billions of phone records, which happen to include logs of the conversations with your client, and run a search on those billions of records that is limited to tracking specific whereabouts information of a specifically identified foreign terrorist, are you harmed?

To what Charley and potchkeh said, I will add that not even Simon is pretending to believe that the government will limit itself in this fashion - except when he is pretending that he believes the government will limit itself in this fashion.


Posted by: politicalfootball | Link to this comment | 06-20-13 9:21 PM
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I don't feel particularly threatened personally by this whole thing. I am not one of Simon's white liberals who is suddenly interested in this because I worry that my own calls might be scrutinized. I've always been pissed off by the various government intrusions authorized in the wake of 9/11.

And yes, as we've heard again and again, this is mostly old news. I was pissed off about it when it was new news, and I'm delighted to see the rest of the country catching up on this.

Regardless of my own direct stake in this, I'm still happier living in a country where dangerous subversives like, say, Martin Luther King, don't have their illicit orgasms recorded by the police state, even though it's not obvious to me that I'll ever make myself a target the way MLK did.


Posted by: politicalfootball | Link to this comment | 06-20-13 9:28 PM
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Are you worried you'll never make a contribution to a more just society or never have as many illicit orgasms?


Posted by: Moby Hick | Link to this comment | 06-20-13 9:35 PM
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160: I've had my moments. At one point, I'm pretty sure I was actually being recorded (in non-orgasmic episodes) by no-shit villains. But yeah, those days are over for me.


Posted by: politicalfootball | Link to this comment | 06-20-13 9:54 PM
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You know it's funny, but until reading 161 just now, it hadn't occurred to me that my feelings about all this might well be colored by how furious it made me when, back in high school, the cops/DEA agents who raided my house and arrested my dad and stepmother taunted me with how much they knew about my personal life from listening to my phone calls. (Response when I asked how they knew the first detail they'd gratuitously mentioned, I think something about what colleges I was considering: "Junior, you'd be surprised at how much we know. That's why we get the big bucks." With a big shit-eating grin.) Pricks.


Posted by: potchkeh | Link to this comment | 06-21-13 4:29 AM
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