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Jun 07 2013

What a national security state looks like

The back-to-back revelations this week that the government has been working with internet and telecommunications companies to sweep up everyone’s phone records and also to tap into the servers of internet providers, has provided startling confirmation of long-held suspicions that we now have an out-of-control national security state that does not give a damn about the constitution or individual right but will use, under the guise of the bogus war on terror, any of the extremely powerful weapons at its disposal to achieve whatever it thinks it wants or needs. We have allowed the creation of a national security behemoth and that behemoth is turning on us, as such behemoths always do. Both political parties are complicit in this, as are members of congress, the judiciary, the military, and major corporations.

This should not be a major surprise. As I have said repeatedly, a government that asserts that it has the right to torture and summarily murder its own citizens (as the Obama administrations does) without needing to provide any of the reasons it claims it has for such actions is a government that has become rogue, thinking it has almost a divine right to exercise power without any checks.

In such a climate, adding more evidence to its abuse of its excessive power may seem redundant but still needs to be done.

Cyrus Farivar writes about the searches and seizure of laptops by DHS (Department of Homeland Security, a name that always strikes me as Orwellian) at the border for incoming travelers. David Kravets adds: “The Department of Homeland Security’s civil rights watchdog has concluded that travelers along the nation’s borders may have their electronics seized and the contents of those devices examined for any reason whatsoever — all in the name of national security.” [My italics-MS]

As is now routine, the government simply asserted that did not need to have probable cause (the usual justification for a search) and that its actions did not violate the rights of citizens. It said that even if its agents acted merely on hunches, these searches sometimes turn up useful information. The ACLU is not impressed with this reasoning.

To be sure, rummaging around through people’s personal papers may well turn up the occasional bad guy, but that is not the only consideration. No doubt law enforcement agents would also find it useful to walk into people’s homes at will, but we don’t allow them to do so because that would intrude on our reasonable expectation of privacy in our homes. And just as we reasonably expect privacy in our homes, so, too, do we expect that border agents will not base their decisions to search through our electronic information on a whim or a hunch. Put another way, requiring law enforcement agents to possess objective reasons for a search is a feature of our constitutional framework, not a bug.

Even at the border, the Fourth Amendment requires more than just hunches. It is disappointing that the DHS watchdog dedicated to protecting our privacy and other civil liberties does not recognize that.

It is true that courts have recognized people entering a country have less rights at the border than they do once inside. And since very few people travel outside the country, they may feel that they are not at risk of being randomly searched by the DHS and having their computers and other electronic devices seized.

They should think again.

It turns out that the government takes a very expansive view of what the ‘border’ is. As Jonathan Turley says, it turns out that it considers all parts of the country that are within a range of 100 miles of the territorial boundary to be the ‘border’. Here’s a map of what the government considers the ‘border’ but what the ACLU calls ‘The Constitution-Free Zone of the United States’. It encompasses 2/3 of the entire population of the country.

aclubordermap

Since I live in Cleveland, I am considered to be living in the border region and could be stopped at any time by the DHS on my commute to work and have my computer seized.

I was not aware of this but apparently the DHS sets up checkpoints within the country and stops travelers for random searches. This video has a collection of vignettes to show people how to politely but firmly decline to be searched.

The people doing the stopping often seemed to have an inflated sense of their own power. It is a very dangerous thing when even minor officials feel that the government will back them whatever they do. It gives them the temptation to use excessive force. The people asserting their rights and refusing to comply struck me as very brave.

When watching this, I was struck by how similar the scenes were to those in films about other countries in other times where people were randomly stopped and asked to ‘show their papers’. Those scenes in the films were a cliché, to show the viewer what an abusive, authoritarian state looked like. And now they are the new normal in the US.

10 comments

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  1. 1
    jamessweet

    I’m gonna copy-paste something I posted to Facebook today, just because it will probably stir the hornet’s nest a bit here :) I expect to get a bit flamed for this, but so be it:

    What bothers me about the Verizon/NSA “bombshell” (which I put in scare quotes, because I thought this was already an open secret) is not so much the invasion of privacy, but the lack of transparency. See, I don’t really believe in privacy in the 21st century. I don’t say that in the way I might say “I don’t believe in the death penalty;” I say it in the sense of “I don’t believe in the Tooth Fairy.” I think the best we can do is make it so people are absolutely clear on how their information is being used, and put regulations in place on how organizations (both governmental and corporate) are allowed to use that information.

    In this case, I could probably be talked into thinking that the snooping of call log metadata was okay, under the following conditions: First, it needed to be completely transparent from Day One that this was happening. Nobody has an expectation that your EZ-Pass data is invisible to the government, and perhaps nobody should have an expectation that your call logs are invisible. Second, to the extent possible, there needs to be transparency/public oversight to the next-level process where they actually start wiretapping people. I recognize that there is a concern about this compromising investigations in progress, but maybe something like a 5-year time limit, and after that, you have to disclose everything: Who you tapped, why you tapped them, etc. Then, the government could only abuse it for so long before getting in some serious shit. (That is, if journalists do their job…)

    I recognize this is a non-ideal solution, and will be offensive to many people who care about civil liberties. The thing is, though: Harm reduction. Haters gonna hate, and governments gonna spy. And given the tools available nowadays, they’re going to spy A LOT. The question is, do you want that spying to be done in a controlled and regulated way with lots of oversight, or do you want it done in secret with absolutely no transparency or checks on the process?

  2. 2
    unbound

    @jamessweet – The flaw in the logic that you can’t expect any privacy in the 21st century is the lack of context.

    When you have an open Facebook profile, that becomes very much like being a street performer. Of course everyone is watching, you are out in public. There is an issue with Facebook (especially) in making it clear how to set your profile to be family only, and that is really a bad thing on their part (they are making it obscure on purpose to sell more ads).

    When you have a Facebook profile that is restricted to family and friends, this is very much like having people over to your house to visit. This does not mean that the entire world now has the privilege to walk into your bedroom whenever they feel like it just because you allow a few friends in. Attempting to do so is called breaking and entering. There is simply no reason we can’t have the same laws for online privacy.

    Is it harder to accomplish privacy and punish violators online? Certainly. But to simply say, “Well, they can make laws, but anyone can break into someone else’s house, so it isn’t worth the effort” is really a rather poor attitude, and can you imagine making that same argument towards people breaking into your property?

    Do we catch everyone that breaks and enters into every house? No. But that doesn’t change the fact that we try every time and, for those we do catch, we punish them. And, again, it doesn’t mean we never try. The Verizon/NSA is absolutely an invasion of privacy. They broke in without probable cause. I’m completely serious when I say please go back and read the 4th amendment as well as the history around that concept. They didn’t witness you in the public, they broke into the servers (with collusion of the telecoms) and snooped around without probable cause. This is really and open and shut case of the government violating your rights…even if they said they were going to do this, it is still a violation of your rights. And such an attitude is one method that the citizens of this country will happily march into a police state or a dictatorship while still convincing themselves that they are still, somehow, “the land of the free”.

    I agree that the metadata analysis is probably fine (and isn’t significantly different than asking Verizon about how many calls are made between Washington D.C. and New York each day), but the next step of having oversight with the actual wire-tapping is supposed to be in place…it isn’t functioning correctly. Probably because we vote for either solid conservatives or extremist conservatives at each election (i.e. Democrats or Republicans). We haven’t had a liberal in the white house in over 3 decades now.

  3. 3
    Marcus Ranum

    It’s not a privacy issue, James. It’s that the government has opened the door to expanding its privilege based on knowledge. Now that they can secretly monitor all communications (and financial records, don’t forget) they can – if they want to – look at who’s contributing (or not) to political campaigns, who’s complaining about what, who’s talking to whom about what, etc. One nasty potential is that if one party or another decides to politicize the technology, they could get better information about the electorate (so they can tailor lies) than they’d normally get through polling. Mostly, this is not being done to fight the war on terror – it’s being done to fight internal leaks of secrets. The end result of success in that area will be more freedom of secret action and a further separation between what the government does and what the people agree to its doing. Eventually, this kind of capability will be too tempting not to use as an internal political weapon. Remember what happened to Petraeus? Eventually any opposition candidate can expect similar levels of scrutiny.

    It’s not a privacy issue; it’s that this further sets up the US government to turn into a dictatorship. Before you scoff, please consider that the executive branch is, for all intents and purposes, dictating a tremendous amount already. The checks and balances have broken down and if nothing else, the way that the judiciary have rolled over on domestic surveillance is going to serve as a demonstration and encouragement to the executive branch. With the amount of domestic surveillance that can be brought to bear on congress, they are pretty much owned, too. The press is pretty thoroughly owned as well, though there’s still some life there.

    This is not about your porn preferences or whether you smoke a bit of dope now and again. It’s more serious than that.

  4. 4
    Marcus Ranum

    Do we catch everyone that breaks and enters into every house? No.

    The landscape changes when it’s possible for the executive branch to do a “dirt search” on anyone in opposition. A lot of this stuff is retroactive, too – remember how far back they magically found Petraeus’ emails? If you don’t think that was a politically motivated media hit based on monitored data, you’re naive. In the old days the president would have had to go to Hoover with his hat in his hand and ask J. Edgar to dig up shit about whoever. Now it’s in-house.

    Fundamentally, the structure of government has changed. It’s no longer the congress, executive, and judiciary running the show. It’s the executive and the intelligence/special ops branch. See the difference?

  5. 5
    Marcus Ranum

    I agree that the metadata analysis is probably fine

    Sure. You might want to read this: http://en.wikipedia.org/wiki/Zendian_problem
    The point is that you can do a whole hell of a lot with traffic analysis, even if the message contents are nonexistent or opaque. For one thing you can cluster phone calls and group people. Want to know who called so-and-so and their circle of friends? This wouldn’t actually be for stopping terrorism as much as for detecting drug dealers, seeing who talked to what journalists, and monitoring people organizing opposition. The real thing they want is they want to be able to tell who sent the abu ghraib pictures to which journalist. That kind of thing.

  6. 6
    Mano Singham

    This is a really important point that I am glad you made. Hoover was hardly a paragon of virtue but just having to go to him must have acted as some sort of restraint on presidential excess

  7. 7
    trucreep

    What immediately bothered me with the government’s response to the metadata gathering was that they kept tossing out that red herring of it not being the actual content of the communications or the identities of them. While some people know that you can easily figure out who someone is with very basic and seemingly meaningless pieces of data, I’m guessing a significant amount of people could be swayed by the government’s argument.

    That’s why I’m impressed with the timing of these disclosures, intentional or not, it completely shatters that bullshit argument so it not only can’t be used, it blows up in their faces.

  8. 8
    Skip White

    At least at the end of The Dark Knight, Lucius Fox destroyed the computer that was listening to everyone’s phones. So in other words, a fictional character lending material support to a masked vigilante can ultimately do the right thing when it comes to illegal wiretapping, but not the real-world government.

  9. 9
    Lassi Hippeläinen

    “not being the actual content of the communications or the identities of them” yeah, right.
    http://freethoughtblogs.com/dispatches/2013/05/08/yes-all-phone-calls-are-recorded/

  10. 10
    Ewgenij Belzmann

    Interestingly enough I live in one of the few democratic countries that has an ID requirement – Germany. Every German citizen over 16 years has to have an official ID card or a passport. A driver’s license does not fulfill this requirement, though often it is accepted as proof of ID. Violators can be fined for up to 5000 euros, but the ID card does not have to be carried with you at all times (though I do have mine always by me, as do many people).

    I have been asked for my ID by the police on several occasions, most often when stepping off a train that has been over the border (I do live in the border region, even by most sane definitions, from my city there are about 5 kilometers to the Netherlands and 10 to Belgium).

    Despite all this I never feel like I live in a “police state”, and that those request are unreasonable or unnecessary. The police officers have always been very respectful and let me go immediately after checking my identity. (Though there have been stories in the press about German policemen preferentially targeting foreigners.) And yes, I do look like a foreigner, because, technically speaking, I am.

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