A Washington Post poll from April after the Boston marathon attacks but before PRISM's disclosure-- found 48 percent of Americans feared the government would go too far in compromising constitutional rights to investigate terrorism. And following the Edward Snowden leaks, 58 percent were against the government collecting phone records. Not a total reversal, but certainly trending in one direction.
This shift has existed in a vacuum of public debate. Prior to the PRISM leaks, the last time domestic government surveillance made headlines was in very late and early , following revelations that the Bush administration was wiretapping Americans without a warrant.
The Bush administration did announce the end of warrantless wiretapping in , and he moved the program under jurisdiction of the FISA court , a panel of Supreme Court-appointed judges who approve domestic surveillance requests. To call the FISA court a rubber stamp is an understatement. This year, it has rejected a grand total of 11 warrant requests out of--wait for it, applications since the Carter administration.
By then, public uproar over warrantless wiretapping had long since receded, and the year's debate played out as a relatively quite inside-baseball scuffle between civil liberties groups and the Hill. When the law came up for its next presidential signature in , it was done quietly by autopen --a device that imitates Obama's John Hancock--from France.
Shifting attitudes and quiet reauthorization flies in the face of the standard the president has set for himself. In a speech at the National Archives , Obama emphasized the importance of the consent of the governed in security affairs,. My administration will make all information available to the American people so that they can make informed judgments and hold us accountable. Following the leaks, he's said he is pushing the intelligence community to release what it can , and rightly insists that the NSA is not listening in on Americans' phone calls.
Those are helpful steps, but should have been raised during the National Archives speech just months into his administration, not six months into his second term. Director of National Intelligence James Clapper continues to argue that disclosure of collection methods will give America's enemies a "'playbook' to avoid detection. First, America's enemies are already aware of the NSA's extensive electronic surveillance capabilities.
That's why Osama Bin Laden and deceased al Qaeda in Iraq leader Abu Musab al Zarqawi used a complex network of couriers rather than electronic communications. It's typical operational security of truly dangerous operatives.
Second, Obama stated as recently as late May that the threat from al Qaeda's core operatives has decreased significantly, shifting to less deadly cells scattered throughout the Middle East and North Africa. We should know what agreements they've reached. We should know what the government has asked for and what they're negotiating with now in terms of access. What we do know for sure is that the government has a program that targets the communication over these companies that huge numbers of people around the world use to communicate with one another.
And we think there should be accountability and transparency for whatever those exact agreements are. Got that? In a story whose details match those that Wired reported earlier this week, the Post described a much more straightforward process that Google says it uses to respond to court orders :. When faced with a court order, the tech giant said, it uses surprisingly simple and low-tech methods, including the delivery of information by hand or by using relatively common techniques to transfer files from one computer to another.
That could include putting data onto a memory disk or external hard drive, or printing out the requested information for a federal official, Google said. FTP, or file transfer protocol, is a popular method for exchanging information between servers with an extra layer of security. Officials and former staffers at the tech companies said it would be difficult for the government to place equipment on their servers or directly access them in secret.
Too many engineers would know, they say. The original stories make it sound as though the tech companies involved are eagerly turning over unrestricted access to data about their customers.
The vehemence of the denials makes it clear that no such eagerness exists. We know that the FBI can go to any tech company in the U. Google has asked the U. Assertions in the press that our compliance with these requests gives the U. However, government nondisclosure obligations regarding the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation.
We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures — in terms of both the number we receive and their scope. Google has nothing to hide. Microsoft and Facebook have joined in that request. The company served with that document either challenges the order or delivers the requested documents and data.
And as a report in the New York Times today makes clear, those companies do push back. The Times describes Yahoo's attempts to refuse a warrantless request for data, which was turned down by the Foreign Intelligence Surveillance Court, as well as similar actions from other companies named in the PRISM presentation.
The judges disagreed. That left Yahoo two choices: Hand over the data or break the law. Google filed a challenge this year against 19 National Security Letters in the same federal court, and in May, Judge Illston ruled against the company. Google was not identified in the case, but its involvement was confirmed by a person briefed on the case. It's clearly not an open doorway into any of those companies' servers, as The Guardian and the Post originally alleged.
The nine companies listed in the PRISM slide deck are there because they offer widely used communication services, most of them free. In the days following the Sept. Al-Marri sent e-mails to Khalid Sheikh Mohammed's Hotmail account… Al-Marri initially tried to use a Yahoo e-mail account to contact Mohammed, but it failed to go through. So he switched to Hotmail as well. Such policies could potentially save tens of thousands of lives and increase revenues from speeding fines while reducing the costs of patrolling the road.
Should the government be able to use technologies like PRISM and related exposed programs to make our roads safer? Illegal Downloading: Millions of Americans have used BitTorrent or other technologies to illegally download music, movies, TV shows, and software. While torrents can be used to download non-copyrighted and copyrighted digital goods, a substantial amount one study found 89 percent of the traffic appears to be used for illegal downloading. NSA PRISM level surveillance could be of use in identifying which users are using BitTorrent, then identifying the users who have uploaded or downloaded the most, and identifying whether their downloads involved illegal content.
Again, let's assume the technology is available. This information could be forwarded to the Department of Justice for prosecution or more crafty lobbyists could get the information forwarded to a private entity like the RIAA or MPAA for lawsuits.
Should the government be able to use technologies like PRISM and related exposed programs to protect copyright holders?
If the barometer for violating the Fourth Amendment is efficacy, then why should these not also be up for discussion? The answer is clear: The Fourth Amendment was not designed for efficacy. It was designed for privacy and to defend our liberty. If that's not the case, why even stop with these examples?
Most of our phones have cameras and microphones that, at least in some circumstances, can be turned on remotely that would surely provide invaluable information for intelligence and law enforcement the FBI has used this for organized crime prosecution, remotely turning on the microphone of phones to record non phone-call conversations. Information given to the government for the NSA may be made available to other agencies such as the IRS, why wouldn't it be?
We already know that it has been shared with foreign agencies e. Even if a court were to find that PRISM data violates the Fourth Amendment, courts have traditionally held that even information that was illegally obtained can be used in court to impeach testimony -- in other words, it could plausibly be admissible to catch a tax cheat. And as many of us in the technology world know, once something exists in data form it is often retained forever.
In an era where data storage is cheap and getting cheaper, American citizens' information will likely be retained indefinitely the NSA is building that capacity in a Utah facility. At some point this massive repository of information may be hacked , at some point could be available to political appointees looking for partisan gain, or it may be used for "security" reasons against "troublemakers" trying to change our society -- social change often comes through those who are perceived to be dangerous to the state.
As James Madison argued in Federalist 51 , "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. Government's natural inclination is to abuse its power, one critical reason why our Founders limited it. The danger of a surveillance state is not the obscure chance of a truly evil person abusing the system; rather, the actual threat, the real danger, is a person with good intentions who believes that their draconian actions are morally justified and prudent.
It is such a leader, perhaps with the best of intentions, who can make the most heinous of mistakes with eyes wide open and belief that the ends justify the means.
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