What To Do With the Surveillance State

It is obvious that federal surveillance programs have gone beyond what the American people (not a high bar) and what they are comfortable with.  The President's announcement that he would seek reforms of the programs revealed by Snowden is proof of that. Not that I believe him, nor believe that it will solve the problem.  Zerohedge makes excellent has of the President's position:

Obama On NSA Spying: "I Would Be Concerned Too, If I Weren't Inside The Government" 
In what is as close to saying 'trust us, we're from the government,' as it gets; President Obama's traitor-identifying, blame-pointing, cover-your-assing speech on Friday has done nothing to end the supposedly "critical NSA counter-terrorism tool," from being used on American citizens. 

The President's proposals do not really change the fundamental problem with the program; surveillance is being conducted on U.S. citizens without warrants or probable cause.  Further, "incidental collection," data collected on other than the primary target, is being used to launch other investigations.

What should be done?  The issue is that we need to spy on foreigners as part of maintaining national security.  However, because the likes of Al-Qaeda have learned good operational security, the national security apparatus finds it convenient to collect information from American telecomms and Internet Service Providers (ISPs).  But it is the nature of computer systems that it is harder to delete information than it is to retain it.  Once a private citizen's information is in the system, even if unrelated to terrorism, court order or secret actions by law enforcement can cause it to be retrieved.  Further, given the way the IRS scandal has gone down, how can we be sure that this information won't be used for political repression?  Oh yeah, the President is just so darned smart and dedicated; maybe he should just be President for life, because no one else will protect our rights like he does.

But I digress.  These programs have to be shut down until there is both oversight and technical means to ensure that incidental collections and unauthorized collections are not happening or are deleted when they do.  We will have to fund an independent judiciary that has the technical means to do so and have periodic reviews, to the Supreme Court if necessary.

These programs didn't prevent the Boston Marathon bombing, so their efficacy is in doubt.  Their damage to liberty is not.

What You Should Be Reading:

• Dean shows that any conservative blogger has a better grasp on the U.S. Constitution than Barack Obama as the President creates a new branch of government Big Business.  Happy with that, 99%ers?
• Best headline on the latest Filner saga: Filner Magically Cured Of The Pervs In Less Than Two Weeks at RedState.
• IRS targets small businesses for under-reporting income based on comparing credit card receipts to overall sales.
• Is China doomed?  I think so.  ZeroHedge examines the debate.  ZeroHedge has all sorts of information and perspective I don't see anywhere else, often spot on.

The Government is Collecting Geolocation Data from Your Cellphone

Just a warning. Reliable sources indicate that the information the U.S. Government is collecting mobile phone geolocation data under a secret interpretation of Section 215 of the Patriot Act. From Reason's blog:

. . . [Senators] Wyden and Udall, both members of the Senate Intelligence Committee, have been warning that the Obama administration relies on a "secret interpretation" of the PATRIOT Act to justify surveillance that the general public does not realize is happening. The interpretation involves Section 215 of the law, which authorizes the FBI to demands business records or any other "tangible things" it deems useful "for an authorized investigation. . .

Of course that miserable hack at DOJ is part of the fun. Wyden and Udall condemn Justice's denial of a secret interpretation as "extremely misleading."

Why do some think that this has to do with geolocation? From the Cato Institute' Julian Sanchez:

Department of Justice has developed a novel legal theory, known as the “hybrid theory,” according to which law enforcement may do some types of geolocation tracking of suspects’ cellular phones without obtaining a full-blown probable cause warrant. The “hybrid theory” involves fusing two very different types of surveillance authority. “Pen registers” allow the monitoring, in real time, of the communications “metadata” from phones or other communications devices (phone numbers dialed, IP addresses connected to). For cellular phones, that “metadata” would often make it possible to pinpoint at least approximately—and, increasingly, with a good deal of precision, especially in urban areas—the location of the user. Federal law, however, prohibits carriers from disclosing location information “solely” pursuant to a pen register order. Another type of authority, known as a 2703(d) order, is a bit like Patriot’s business records authority (though only for telecommunications providers), and is used to compel the production of historical (as opposed to real-time/prospective) records, without any exclusion on location information. The Justice Department’s novel theory—which I discussed at a recent Cato event with Sen. Wyden on geolocation tracking—is that by bundling these two authorities in a new kind of combination order, they can do real-time geolocation tracking without the need to obtain a full Fourth Amendment warrant based on probable cause.

Further, there is reason to believe that the information isn't being used in any particular investigation. From the Campaign for Liberty, more from Wyden and Udall:

Section 215 authorities are not interpreted in the same way that grand jury subpoena authorities are, and we are concerned that when Justice Department officials suggest that the two authorities are ‘analogous’ they provide the public with a false understanding of how surveillance law is interpreted in practice.

Why the discussion of grand jury rules? The U.S. Attorney's manual provides that:

It is improper to utilize the grand jury solely as an investigative aid in the search for a fugitive in whose testimony the grand jury has no interest.

Wyden and Udall conclude that:

...locating subjects for the benefit of law enforcement (rather than as a means of securing their testimony before the grand jury) is one of the few things so expressly and specifically excluded.

From this we might conclude that the government is making use of geolocation data for other than ongoing criminal investigations. I could be wrong, but I have to trust my instincts on this one.

I would like to thank this man, Julian Sanchez, for working diligently to work on the behalf of all citizens in the arena of electronic freedom.