Tuesday, June 11, 2013

On Trading Liberty [?] for Security

A more-conservative-than-I (except when he's more-progressive-than-I) co-author, whose opinion I respect, agrees with The Solitary Leaker - NYTimes.com
For society to function well, there have to be basic levels of trust and cooperation, a respect for institutions and deference to common procedures. By deciding to unilaterally leak secret N.S.A. documents, Snowden has betrayed all of these things...

He betrayed the Constitution. The founders did not create the United States so that some solitary 29-year-old could make unilateral decisions about what should be exposed. Snowden self-indulgently short-circuited the democratic structures of accountability, putting his own preferences above everything else.
Wow. And also...hmmm..... Well, I'm not going to take the time to think seriously about this, but I will note things I've seen lately, such as the Economist's Surveillance: Should the government know less than Google?
LET'S get the most contentious point out of the way first: Edward Snowden made the right call to make public the extent of the National Security Administration's surveillance of electronic communications. The American people can now have a debate about whether or not they consent to that level of surveillance in order to prevent terrorist attacks, a debate that we were previously denied by the government's unwillingness to disclose even the broad outlines of what the NSA was doing. There may be some slight risk that knowing more about the breadth of NSA surveillance will lead terrorists to take better precautions in concealing their communications. But that risk seems manageable, and is of far less importance than the ability of Americans, and the rest of the world for that matter, to finally have an honest discussion about how much we think our governments should be able to see of our online behaviour.

So how much access should governments have?...
I don't entirely agree with that, in that what we're supposed to have is a representative democracy in which things can legitimately be kept secret from us by our elected representatives, as long as there's a Constitutional justification for it. But mostly I agree and I think that's moot at the moment anyway because that's obviously not what was happening either, even if it should have been. Sooo....Then I would want to think about Bruce Schneier's Government Secrets and the Need for Whistle-blowers
The U.S. government is on a secrecy binge. It overclassifies more information than ever. And we learn, again and again, that our government regularly classifies things not because they need to be secret, but because their release would be embarrassing.

Knowing how the government spies on us is important. Not only because so much of it is illegal -- or, to be as charitable as possible, based on novel interpretations of the law -- but because we have a right to know. Democracy requires an informed citizenry in order to function properly, and transparency and accountability are essential parts of that. That means knowing what our government is doing to us, in our name. That means knowing that the government is operating within the constraints of the law. Otherwise, we're living in a police state.

We need whistle-blowers.
And mostly, with some reservations, I would agree with that, too. And I would want to consider Arnold Kling's Comments on NSA Snooping
5. The issue is an uncomfortable one for libertarians, because I think that most people believe that the government is snooping in their interest. The majority may even be right about that. I myself have less of a problem with the snooping per se than with the secrecy of the programs. In my view, it is the secrecy, along with an absence of strong institutional checks, that is bound to lead to abuse. ... ... ...

Maybe the key point is (5). Government officials will argue that what they do must remain secret. They cherish secrecy. They claim that it is for our own good that we do not know what they do. I would say that such claims are often made and rarely true.
How shall we decide between the views? Well, I would look at the data, including the video 'Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?'. That looks like a very straightforward question, with verbal emphasis on "any" and "at all"...the question received a straightforward answer from NSA Director Clapper. At the moment, my understanding (reinforced by Clapper's later statement on what he really meant) is that the answer was a simple and straightforward lie. The White House said White House: Clapper was ‘straight and direct’ in testimony on NSA:
As a senior member of the Senate Intelligence Committee, Wyden had been briefed on the NSA programs, but publicly led Clapper in a line of questioning that would either require him to disavow knowledge of the program, or to answer truthfully, breaking the law by revealing classified information....

“So that he would be prepared to answer, I sent the question to Director Clapper’s office a day in advance. After the hearing was over my staff and I gave his office a chance to amend his answer”...

Clapper sought to clarify his remarks on Monday, telling MSNBC’s Andrea Mitchell that he meant to convey that the NSA doesn’t “voyeuristically pore through U.S. citizens' emails.”
If that's what he meant to convey by that answer to that question, well...ummmm....no. Sorry, I do not believe him at all.

Like Kling, I'm worried about secrecy rather than by intrusiveness: about "the secrecy, along with an absence of strong institutional checks, that is bound to lead to abuse." If I were inventing a government for the information age, it would have much more liberty and less privacy than our current government...and there would be no long-term privacy for anything done with public funds, because most public employees are almost certainly Good People but we know that Good People sometimes do Bad Things to The Enemy, which dishearteningly turns out to simply mean the Other, all too often. And of course there are always the two-legged cockroaches, but I believe them to be a smaller problem. Conservatives and Progressives and Libertarians are all too trusting...they trust different people for different things, but actually nobody is fully trustworthy even if almost everybody is moderately trustworthy. The Constitution is all about not trusting anybody completely. (Today I'm more of a Classical Liberal. It's Tuesday.)

What I see, in the context of Clapper's straightforward response to a straightforward question (from a member of the intelligence committee which has the responsibility of oversight), is a breakdown of the Constitutional relationship between the executive and legislative branches. Perhaps that breakdown indicates a basic inadequacy of the Constitution. Perhaps it  indicates Executive overreach. Perhaps it merely indicates a personal felony on Clapper's part, or even on Wyden's (if he had prior knowledge of the system, presumably that was under some non-disclosure oath.) In any case, the breakdown looks to me like it's real. and if Snowden actually cares about the Constitution, then he should have done exactly what he did even if he personally approved of the NSA data collection...process is more fundamental than outcomes.

Or then again, maybe not.

(1) I should also note, I suppose, that I still consider terrorism to be an over-hyped nuisance in the short run but an existential threat in the long run. That naturally changes my perception of the conversation we ought to be having.
(2) My remark about two-legged cockroaches was probably unclear; I think any time you create a "public" position and say "we'll fill it with someone trustworthy and trust that person without watching what they do," whether priest or politician or policeman or prosecutor, you are creating an incentive for would-be abusers to seek that position; you are building a feeding station for cockroaches. John 3:20, and that's all I have to say about it because I actually think people who think they're doing Good are far more dangerous.
(3) We live in Ham Sandwich Nation, a world of so many laws that everybody is violating something (and ignorance of which law is no excuse), where a prosecutor (with personal legal immunity) can prosecute almost anybody for something -- and I expect our data collection to expand from just-for-foreign-terrorism to just-for-terrorism to anything-involving-children to... Well, that's pretty much anything. So it's the prosecutor's personal choice: figure out who is Bad, and then look up what they're violating.

But then again, maybe it just magically won't happen.

update 2A more blunt view of the effects of Ham Sandwich Nation, at interfluidity » Tradeoffs
The stupidest framing of the controversy over ubiquitous surveillance is that it reflects a trade-off between “security” and “privacy”. We are putting in jeopardy values much, much more important than “privacy”.

The value we are trading away, under the surveillance programs as presently constituted, are quality of governance. This is not a debate about privacy. It is a debate about corruption.
update 3Arnold Kling notes No One is Innocent
I broke the law yesterday and again today and I will probably break the law tomorrow. Don’t mistake me, I have done nothing wrong. I don’t even know what laws I have broken. Nevertheless, I am reasonably confident that I have broken some laws, rules, or regulations recently because its hard for anyone to live today without breaking the law. Doubt me? Have you ever thrown out some junk mail that came to your house but was addressed to someone else? That’s a violation of federal law punishable by up to 5 years in prison.

Harvey Silverglate argues that a typical American commits three felonies a day. I think that number is too high but it is easy to violate the law without intent or knowledge.
Of course that means that we go back from government-of-laws to government-of-men, specifically whoever influences a prosecutor's discretion.
I don't think we can fix this by avoiding surveillance, but maybe as a short-run palliative we should hinder surveillance somewhat. In the long run we have to fix the law.

Or then again, maybe not.

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