Thursday, August 22, 2013

NSA, Section 215, And The Endangered 4th Amendment

Seth Mason Charleston SC blog 16In light of the continuously-developing NSA spying story, it's important to look at how substantial the government's legal justification is for its overreaching domestic surveillance policy and how said policy can impact the lives of ordinary citizens who supposedly have "nothing to hide".

First, let's look at government's legal argument. Earlier this month, The Guardian released the NSA order which compels Verizon to deliver customers' call information to the agency on an "ongoing, daily basis". Since that time, a plethora of additional information has come to light which demonstrates that the size and scope of federal domestic spying policy goes far beyond the NSA and Verizon. Nevertheless, the NSA Verizon order demonstrates how the government uses Section 215 of the Patriot Act to trounce the Constitution. Indeed, the order references the highly-controversial section in the very first line.

The ACLU has come to the conclusion that Section 215 of the Patriot Act is the specific legal order that authorizes the federal government to surveil the electronic communications of ordinary Americans. This section, according to the organization, enables the government to apply to the Foreign Intelligence Surveillance Court--which NPR's Dina Temple-Raston calls a domestic spying "rubber stamp"--to obtain legal clearance to circumvent 4th Amendment protections. In other words, the feds are granted permission to violate Americans' civil liberties as per the rulings of an autonomous, opaque court system that justified the existence of Section 215 in the first place! The section, according to the ACLU:
...authorizes the government to obtain "any tangible thing" relevant to a terrorism investigation, even if there is no showing that the "thing" pertains to suspected terrorists or terrorist activities. This provision is contrary to traditional notions of search and seizure, which require the government to show reasonable suspicion or probable cause before undertaking an investigation that infringes upon a person's privacy. 
"Any tangible thing" means ANY form of Americans' electronic communication, domestic or international. That should be extremely concerning to everyone, irrespective of ideology and if one has "nothing to hide".

So, why, then, should someone who supposedly has nothing to hide be concerned about Section 215 or federal domestic spying at all?

"Nothing to hide" is a myth that's built on certain false assumptions that are rarely--if ever-- considered when draconian surveillance measures are being pushed. Toby Stevens of Computer Weekly characterizes these assumptions as continuity, context, control, and consistency:

  • Continuity: When a large data gathering exercise is started, the lifespan of the system will almost always be greater than that of its instigators. The most benign and caring government, authority or private company is inevitably subject to a change of management, and if the new executive does not share their moral stance, then data can be reused for very dangerous purposes. Those who provided data believing they had nothing to fear may find that data is misused in the future.

So, change of management--continuity--means that draconian laws can be abused by future regimes. I suspect that some enterprising bureaucrats already use sensitive data gathered in the name of the "War on Terror" to further political agendas. While such abuse may be isolated today, it could become widespread in the future.

  • Context: Those who use the NTHNTF argument most commonly use it in the context of government collecting information about individuals. In the information age, the idea of a single entity holding that information does not hold true. The massive pressures to share information within and beyond government mean that information is constantly on the move. Sooner or later, information held by the government will be shared across the government and with the private sector.

Sensitive data gathered in the name of the "War on Terror" may remain within the Department of Homeland Security and the FBI today, but, eventually, they might be accessed by other government agencies or leak out to private sector organizations that have the ability to disrupt ordinary citizens' lives: credit bureaus, current or potential employers, etc.

  • Control: Whether through a sharing agreement, aggregation of databases or simply leaving a memory stick in a pub car park, information is always shared sooner or later. Information security professionals always assume a system to be insecure, and plan for when - not if - data is lost or corrupted.

Sensitive data gathered in the name of the "War on Terror" could also be accessed by hackers, who could sell it or use it to intimidate or blackmail.

  • Consistency: The most important issue is that of consistent use of accurate information across all authorities and all individuals.

The recent IRS scandal demonstrates that some enterprising bureaucrats can--and will--use sensitive data inconsistently based on political agenda. Again, while such abuse may be isolated today, it could become widespread in the future.

The government's legal justification for its overreaching domestic surveillance policy and how said policy can impact the lives of ordinary Americans are two issues of paramount importance in this period of U.S. history. We must demand that our elected officials rethink the existence of the FISA court, revise Section 215 of the Patriot Act, and expunge sensitive information gathered in the name of the "War on Terror".

Seth Mason, Charleston SC

1 comment:

  1. The real problem is not the actual information recording but what the recording person/group does with it. Governments (all of them), via Enforcers' threats of and actual use of physical harm, aim to remove voluntary choices and therefore in doing so DISTORT ALL choices. The US Government is currently likely the worst because it portends to be guided by "law", which it of course defines and uses to its benefit - to maintain and grow power.


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