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The NSA, Pattern-Mining, And Our Civil Liberties


In memory of my father, a harder-working civil libertarian than I'll ever be. On Fathers Day, 2013


The scenario: a methodical serial killer is on the loose. Every third Saturday night someone is murdered in Fort Lee, New Jersey. The police are completely stymied. Finally, a possible break: by investigating E-ZPass records at the George Washington Bridge, it is determined that one and only one vehicle has crossed into the city every Saturday night on which a murder has been committed, while never crossing the bridge into the city on any other occasion.

Should law enforcement officials be allowed to seek a search warrant and use these E-ZPass records to determine the vehicle owner’s identity, or should their acquisition of this information be blocked out of concern for our privacy rights, and instead, should the police be forced to rely on older, pavement-pounding evidence-gathering methods, as the bodies inevitably pile up?

(A) The only things this Snowden kid “leaked” was stuff we already knew: that President Obama has reined in the gross constitutional violations of the Bush/Cheney administration. Obama has reinstated the requirement of obtaining a search warrant before engaging in wire-tapping etc., while employing cutting-edge pattern-recognition software to improve upon legal data-gathering methods that are already employed by the huge corporations that have been gathering this information solely for their own profit-seeking ends.

(B) Let's start by considering a comparable situation, albeit one on a much smaller scale. When I used to visit my old schools in my home town, I could just walk in and say hi to my teachers. The sick, sad truth is that times have changed. There are school shootings, and teachers and students need security, and so now I have to sign in at the front door. Even given the paltry amount of security that such a sign-in sheet may supply, still, a few brief seconds' delay may mean the difference between life and death for many children. It’s disgusting, but it’s reality. So now visitors have to sign in and out at a security desk. Am I happy that I have my comings and goings registered just to say hey to my teachers? Of course not. But do I understand why the policy is in place, and I’m not stupidly self-centered enough to think--because, after all, I’m a nice guy who wouldn’t shoot a kid dead--that I should not have to sign in.

So what should cause a greater sense of alarm among civil libertarians, and prompt them to work for change?

  1. The fact that I am asked to sign in at my old school so that the authorities know the Who, When, and Where (though crucially, not the What or Why) of my school contacts, in order to reduce the likelihood of mass murder on school grounds, or
  2. The fact that terrible people have such ready access to guns, so that we now need extra safeguards to protect our students and our teachers from mass murder.

Would any sensible person pick (1)?

(C) Look, there's a fundamental difference between:

  1. The government acquiring the fact of our engaging in particular correspondences for the sake of public safety, and
  2. The government acquiring the content of our particular correspondences for the sake of public safety.

This is the critical difference between the Obama policy (that’s (1)) and the Bush/Cheney policy (that’s (2)).

Since there is no compelling argument that Obama’s far less invasive policy is inherently abusive, those who are outraged by it can really only point to its potential for abuse. This is a legitimate concern, but only in the most trivial way, in the sense that every law has the potential to be abused. So, if any particular law has a greater potential to be abused than some other law, then we fight power with power: deploy all our legal safeguards against its abuse. Of course, if we come to find that a law inherently oversteps our freedoms (as do certain components of the Bush/Cheney Patriot Act), then, sure, it should be declared unconstitutional and rescinded.

Stated another way, for any given policy, ask

  1. Is the policy constitutional or not? and
  2. Assuming the policy is constitutional, does the existence of a slippery slope preclude its legitimacy?

In the years since pattern-mining has been in use, there has been no compelling legal argument demonstrating that it is inherently abusive, nor has evidence been presented that the policy has been abused. After all, where are the court cases that have presented evidence of its abuse? Oh, I see, all its victims have been disappeared, their friends and loved ones silenced.

All laws are ultimately enforced by individuals, or groups thereof, and therefore have the potential to be abused. This is an inherent imperfection of the Social Contract that is characteristic of a democracy. Recall from grade school (you know, that place where we now have to sign in and out): in a democracy, the government has an obligation to strike a balance between maximizing its citizens' safety and maximizing its citizens' rights and freedoms. If our elected officials fail to strike that balance, then we, in our democracy, have the power to throw them out by legal means. But if we act without regard to the Social Contract and take matters into our own hands, then we are abandoning our democratic principles. No thank you.

(D) Scott Prouty? Daniel Ellsberg? Karen Silkwood? Heroic whistle blowers all, people of principle clearly possessed of the mettle to bravely face the law, and to work within the very democratic system they believed in and wanted to improve. This Snowden kid? He ain't no whistle blower. He runs off to a foreign country to hide from those he is accusing (accusing them of what is far from clear…), instead of facing them in a court of law. Such actions reveal a base and cowardly contempt for our constitutional democracy: don't abide by the laws, just do your own thing and all else be damned. He is a hi-tech George Zimmerman, a rogue contractor who infiltrated the system and then undermined it from within to pursue his own treacherous agenda; Praising him for "starting a dialogue" on the nature and limits of our constitutional rights is like praising an anti-gun activist who commits mass murder at a gun show. Is he a traitor? That's a matter for our judicial system to resolve, so let's hope he faces justice soon. After all, another aspect of our democracy for which he clearly has contempt is the promise of a fair and speedy trial: he says he does not trust his fellow citizens to judge him impartially. Lovely chap.

He is a high school drop-out who engaged with computer screens instead of actual human beings during those years crucial for normal social and emotional development. He volunteered to fight in Bush/Cheney’s war of aggression in Iraq, and then changed his mind a couple of months later when he learned that he might have to “kill Arabs”. He lied about his salary, nearly doubling the actual figure. He ran off to a land with a totalitarian central government thinking it was a bastion of free speech (he’d probably go to Casablanca “for the waters”). Most preposterously, he claimed to have the authority to read President Obama’s email.

(E) In the final analysis, he walks and talks just like any other sanctimonious conspiracy monger. From Cincinnati to Benghazi, they’re all the same: take nothing, and try to spin it into something that makes President Obama look like a power-mad black-skinned monster. And yet there really is a scandal here: why is the government outsourcing its most sensitive work to private firms that care only about their own bottom line (moolah), firms that, we now know, ignore their own data-gathering procedures and hire someone whose public online demeanor reveals him to be a socially and emotionally stunted conspiracy monger with delusions of grandeur? Is the vetting of these hires outsourced as well, or is this handled by the NSA? We need to know. Meanwhile, those on the Intelligence Committee who are “Shocked! Shocked!” by this PRISM “revelation” are, quite simply, not doing their jobs of keeping apace with the work they were appointed to do. Imagine, members of congress not doing their jobs! These government officials' competence should be called into question. Also, an independent committee should be required to determine whether the meta-data gathering policy has indeed been employed to avert terrorist attacks, and to report its results to the public. (After all, only a fool would blindly accept the assurances of government officials.) Otherwise, we're just wasting our money (but that's all).

(F) This country has real domestic problems. Women’s reproductive rights are being challenged, blacks are being disenfranchised, gays are second class citizens, Latinos are being forcibly shipped overseas to countries they've never known, corporate power is escalating at a frightening pace, Guantanamo is still in operation, global warming is proceeding virtually unchecked by our government, etc., etc. To harp on this issue is just bourgeois self-indulgent navel-gazing, and part and parcel of the frenzy that surrounds any sexy non-issue, whether in the corporate media or at any old Joe Blog. We know why, of course: it’s great for ratings and readership. Click here, and soon you’ll be receiving targeted ads for products guaranteeing your internet security—and you’ll believe them! Media conglomerates and ad-funded Joe Blogs that write in opposition to the Obama policy, note, are hypocritical beneficiaries of the exact same policy as employed by private corporations with whom none of their readers has entered into a social contract, but never mind, I guess.

(G) The constitution is both sturdy enough and flexible enough to accommodate to shifting technological realities. The framers would never interpret the Second Amendment to allow for the personal stocking of rapid-fire machine guns (and certainly not outside of a “well-regulated militia”), for example. I, for one, do not feel a chill in the air. If you reflect on this issue, can you look me in the eye and say that you do? Just keep in mind: feelings are normal only to the extent that they are reality-based.


Okay, back to Fort Lee....well?



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