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November 14, 2011
GPS tracking devices do not have power to rewrite Fourth Amendment

Futurists have been predicting for years that there will be diminished privacy in the future, and we will just have to adapt. In 1999, for example, Sun Mcrosystems CEO Scott McNealy posited that we have "zero privacy." Now, Wall Street Journal columnist Gordon Crovitz is suggesting that technology has the "power to rewrite constitutional protections." He is referring to GPS tracking devices, of all things.

The Supreme Court is considering whether it was unreasonable for police to hide a GPS tracing device on a vehicle belonging to a suspected drug dealer. The Bill of Rights protects each of us against unreasonable searches and seizures. According to the Fourth Amendment,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In the case before the Supreme Court, U.S. v. Antoine Jones, the requirement to obtain a warrant was not problematic. In fact, the police established probable cause to suspect Jones of a crime and obtained a warrant. The problem is, the police violated the terms of the warrant, which had expired and which was never valid in the jurisdiction where the tracking occurred. Therefore, first and foremost, this is a case about police misconduct.

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February 5, 2010
Why antagonize China?

From George Gilder's column in today's Wall Street Journal,

Meanwhile, Secretary of State Hillary Clinton and the president's friends at Google are hectoring China on Internet policy. Although commanding twice as many Internet users as we do, China originates fewer viruses and scams than does the U.S. and with Taiwan produces comparable amounts of Internet gear. As an authoritarian regime, it obviously will not be amenable to an open and anonymous net regime. Protecting information on the Internet is a responsibility of U.S. corporations and their security tools, not the State Department.
The full column is here.

July 7, 2009
Breach the cyberwalls

Congress could increase funding for organizations which enable foreign citizens to breach Internet firewalls operated by closed society regimes, according to Senator Arlen Specter (D-PA).

The money would aid groups like the Global Internet Freedom Coalition, maker of the FreeGate software described by Nicholas D. Kristof:

... small enough to carry on a flash drive. It takes a surfer to an overseas server that changes I.P. addresses every second or so, too quickly for a government to block it, and then from there to a banned site ....

E-mails sent with it can be encrypted. And after a session is complete, a press of a button eliminates any sign that it was used on that computer

The coalition is running out of server space, and a Washington Post editorial notes that a $50 million appropriation would enable it to provide access to 100 million distinct users every day -- as opposed to something under 1 million users now.

February 1, 2008
Media Matters targets Wohlstetter

Over at Media Matters, Raphael Schweber-Koren takes exception to John Wohlstetter's claim that reauthorization of the Protect America Act is necessary to "allow the government to continue to monitor communications for counter-terror purposes":

In fact, the government would retain the authority to monitor the communications of suspected terrorists after the PAA expires, as Media Matters for America has noted. Rather, what would expire are the PAA's revisions to the Foreign Intelligence Surveillance Act (FISA) which, among other things, expanded the government's authority to eavesdrop on Americans' domestic-to-foreign communications without a warrant.
Media Matters is really confusing the issue, which is not whether the government can eavesdrop on suspected terrorists pursuant to a court order. The issue is whether to permit additional eavesdropping for the purpose of identifying potential terrorists, as I've noted here. I cited the assessment of Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit that FISA, which was enacted during the Cold War, was useless as a tool for identifying potential terrorists prior to the August amendments.

January 31, 2008
Dial '08 for terrorism

John Wohlstetter references the practical difficulty of making telephone companies responsible for the legality of government requests for surveillance of terrorist communications in a column for the Washington Times:

Standard telephone company practice, going back decades in criminal investigations, holds that on being served with a request from the government, it is visually scanned by company officials for facial validity, to determine if it looks like a proper legal document. Absent an obvious facial defect, the document is presumed genuine and lawful. Given the volume of such requests -- many thousands per year -- imposing any burden on companies beyond a facial scan to ascertain probable authenticity would lead them to decline such requests, thus forcing the government to go to court every time. The expense of even a victorious legal defense, let lone the risk of unsympathetic jurors returning million-dollar verdicts, would cause companies to strenuously resist cooperating.
Senate Judiciary Chairman Patrick Leahy (D-VT) claims that "telecommunications carriers will still have immunity for actions they take in the future. If they follow the law, they have immunity." But he opposes retroactive immunity, believing that lawsuits against telephone companies are the only way the Bush administration will be "called to account." That may be good politics, but it's bad policy.

Identifying terrorists is a cat-and-mouse game, and by withholding retroactive immunity Leahy and others will frighten communications companies from cooperating with investigators the next time they try to employ novel or unexpected investigative techniques.

November 9, 2007
Give them immunity

With all due respect for the views of my colleagues (here and here) and commenters at Technology Liberation Front, former Sen. Bob Kerrey had this, and other, mature insights in an op-ed which appeared yesterday in The Hill regarding whether to include immunity for telecom carriers in the Foreign Intelligence Surveillance Act (FISA) reauthorization:

Consider the atmosphere: the president had gone before Congress and said "one vial, one canister, one crate, slipped into this country, could bring a day of horror like none we have ever known." So if these companies refused to cooperate, by implication, that dark day could be on their conscience. And now they cannot even defend themselves in court, because the details of the investigations remain classified.

Opposition to immunity isn't aimed so much at punishing the telecom providers, but at obtaining information about what really happened and about reaffirming the significant legal duties that telecom providers have for safeguarding the privacy of their law-abiding customers.

Presumably any judge would have some sympathy for the telecom providers, considering the extraordinary circumstances; still, investors have an irrational fear of legal bills and uncertainty.

As for whether the warrantless surveillance was really unconstitutional or not isn't absolutely clear. The Supreme Court hasn't said, and some believe the Court might defer to the president who was acting as commander-in-chief to protect the nation's security. The Fourth Amendment concerns "unreasonable" searches and seizures, and electronic surveillance is routinely conducted on all sides during wartime.

Under FISA, the Foreign Intelligence Surveillance Court can authorize electronic surveillance when there's probable cause to believe that the target of surveillance is an agent of a foreign power or a terrorist. The argument is that the Bush administration should have invoked this procedure, which would have protected the telecom providers from liability.

But Richard A. Posner observed in February, 2006 that FISA was "dangerously obsolete" because while it allowed electronic surveillance against known terrorists, it couldn't authorize surveillance for the purpose of identifying potential terrorists and their supporters.

[FISA] retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. It requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.
Writing in 2005, William Kristol and Gary Schmitt posited the following hypothetical:
A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda operative in Pakistan. Among his possessions are a couple of cell phones -- phones that contain several American phone numbers. In the wake of Sept. 11, 2001, what's a president to do?
Kristol and Schmitt rightly asked where is the evidence, in this hypothetical, to support a finding of probable cause to believe the targets of electronic surveillance, in the U.S., are terrorists?
Who knows why the person seized in Pakistan was calling these people? Even terrorists make innocent calls and have relationships with folks who are not themselves terrorists.
I have no idea if this was the actual justification or not, but it sounds plausible and legitimate to me.

Kerrey makes the logical point that the fight against terrorism will require access by the government to all kinds of personal data:

It is now clearer than ever that to connect the dots in future terror investigations, the government simply cannot do it alone -- it must have the full, unwavering support of private industry. The global proliferation and increasing sophistication of terrorist operations means that every private enterprise -- from the telecom and tech companies to the car renters and airlines, data-mining and credit card firms, chemical manufacturers and fertilizer retailers -- virtually every private concern in the U.S. economy must be willing to help out when a terrorism investigator comes to call.

The possibilities for abuse, given the occasional corrupt politician, careless bureaucrat or scheming corporation, stagger the imagination. Corporations like to curry favor from politicians; bureaucrats are assigned laptops, for some reason; politicians like to leak damaging details about their opponents' private lives; the list goes on. But the question ought to be whether it's possible to prevent abuse in most cases while allowing the government every tool to detect and prevent terrorist attacks.

Posner suggested a combination of criminal penalties and evidentiary prohibitions which sound like a promising starting point:
Forbid any use of intercepted information for any purpose other than "national security" as defined in the statute ... Thus the information could not be used as evidence or leads in a prosecution for ordinary crime. There would be heavy criminal penalties for violating this provision, to allay concern that "wild talk" picked up by electronic surveillance would lead to criminal investigations unrelated to national security.

The suggestion is evocative, at least for me, of the Miranda ruling, which addressed the problem of unscrupulous police investigators who conducted coercive interrogations to obtain confessions from innocent suspects. The Supreme Court solved the problem by making improperly-obtained evidence inadmissible and not by prohibiting interrogations or confessions -- which the Court recognized were indispensible techniques for fighting crime. I don't know many who would argue that the Miranda Warning hasn't worked pretty well.

September 6, 2007
Limiting terrorist surveillance

There was an interesting hearing on "Warrantless Surveillance and the Foreign Intelligence Surveillance Act: The Role of Checks and Balances in Protecting Americans' Privacy Rights" in the House Judiciary Committee on Wednesday. Former Rep. Bob Barr (R-GA) claimed that,

Essentially, thanks to this law, the government has potentially carved out from Fourth-Amendment protection an entire class of communication -- electronic communications going to a person outside the United States, or coming to a person inside the United States. There is -- and here again contrary to the public missives by the Administration and its supporters -- no requirement whatsoever, implied or express, that even one of the parties to such category of communications subject to warrantless surveillance would first have to have any known or even suspect connection with any terrorist or other targeted group or activity.

Barr also repeated the warning of Judge Royce Lamberth, that "you can fight the war [on terrorism] and lose everything if you have no civil liberties left when you get through fighting the war..."

But no one -- George Bush included -- is advocating that ...

Chairman John Conyers, Jr. (D-MI) meanwhile identified three things he wants before he will support a renewal of FISA when it expires in six months:

  • First, we must be able to conduct real and meaningful oversight on the surveillance program.

  • Second, we must provide the courts with a meaningful role in reviewing surveillance that applies to American citizens.

  • Third, we need to consider the role of the telecommunications carriers.

Conyers wants to know the entire history of "warrantless surveillance" and says it's critical that Congress "place some check" on governmental power in this area. Conyers also wants to learn what role companies played in the program, including "why they volunteered in the first place, and what promises were made to them."

Of course history proves that if you allow politicians to conduct domestic surveillance eventually they will use it to monitor and intimidate their political enemies and other troublemakers. On the other hand, history also proves surveillance is an indispensable tool for conducting war. There was extensive surveillance under Lincoln, Wilson and Roosevelt. FISA, enacted in the aftermath of Watergate, has always been about striking the right balance. But considering that many lawmakers of the 1970s served in World War II, I suspect Congress was trying to prevent another Watergate while ensuring that the country could win another war like WWII. Although some people oppose warrantless surveillance even of terror suspects, the real question ought to be whether warrantless surveillance can be conducted against terror suspects without eroding other civil liberties. Judge Richard Posner in the past has made three excellent suggestions:

One is that interceptions for national security purposes can only be used for national security purposes. So in other words, if you have some large scale surveillance program and you're listening to a lot of people and so on, and you discover that one of these people is not in fact a terrorist but he doesn't pay his taxes, doesn't pay child support, employs illegal immigrants or what have you, I would say no, that information can't be used to prosecute this person for any other reason. It can only be used to deal with a national security threat.

Currently there are all kinds of evidence that is inadmissible in a judicial proceeding, and Posner would add this to the list. A similar provision is included in the current version of FISA.

The other thing would be to make sure that whenever someone's conversation is listened to or e-mail is read by an intelligence agent, intelligence officer, a record be made who is the person, why did they listen, what did they find out and so on, and this information about who is monitored should be turned over to watchdog committees in Congress, maybe the executive branch, maybe even some kind of judicial organ to make sure that these are bona fide national security investigations.
The full Posner interview from The Glenn & Helen Show (Aug. 28, 2006) can be found here.

Another of Posner's ideas, that of creating a separate domestic spy agency to assume the FBI's domestic intelligence responsibilities (see "Terrorism-- Posner's Comment" and "A Domestic CIA"), would also help to ensure that evidence obtained from the surveillance of terror suspects wouldn't tend to be used against others. Posner would model the agency after the British domestic intelligence agency -- MI5 -- which has no arrest powers and no responsibilities for criminal investigation -- and "none of the institutional hangups that go with such responsibilities."

The British understand that a criminal-investigation culture and an intelligence culture don't mix. A crime occurs at a definite time and place, enabling a focused investigation likely to culminate in an arrest and conviction. Intelligence seeks to identify enemies and their plans before any crime occurs. It searches for terrorist sleeper cells in the U.S. with no assurance of finding any. Hunting needles in a haystack is uncongenial work for FBI special agents. And so at the same time that the attorney general was testifying before Congress that the National Security Agency's intercepting some communications of U.S. citizens is essential to national security, leaks from inside the FBI revealed that special agents are disgruntled at having to chase down the leads furnished to them by NSA. FBI special agents--the bureau's only operations officers--want to make arrests, and so they zero in on animal-rights terrorists and ecoterrorists--people known to be committing crimes and therefore relatively easy to nail. These people are criminals and should be prosecuted, but as they do not endanger national security, prosecuting them should not be an intelligence priority.

Besides creating better institutional dynamics for preventing terrorism, a domestic spy agency -- which would be evaluated on the basis of thwarting terrorism, not convicting criminals -- would also have diminished incentive to furnish other law enforcement agencies with evidence of suspicious behavior unrelated to terrorism.

But one gets the feeling that the FISA debate is less about solving problems than about sticking one's political opponents.

April 26, 2007
Regulating television violence

Hasn't television always been violent? I remember watching Westerns and WWII movies as a child with guns and canons blazing; police dramas (behind my parents' backs, I suppose) in which all kinds of terrible things happened; even cartoons were violent. This was about the time of the so-called "Golden Age" of television -- when there was nothing else to watch. But that was before you could commit a crime and interject a neglected child defense or some other excuse. Rather than focusing on swifter and harsher punishments for wrongdoing, our government is now toying with the idea of limiting free speech. In an article for Technology Liberation Front, I propose a more free-market solution:

Comcast, the nation's largest cable operator, recently asked the Federal Communications Commission for a waiver of the ban so it can distribute low-cost, limited capability set-top boxes to subscribers who don't want higher-end devices costing several hundred dollars (see this and this).

With digital set-top boxes, parents will be able to access family-friendly programming without being required to subsidize objectionable content. Comcast is developing a Family Tier that it expects will have an average of 35-40 channels, including PBS Kids Sprout, Disney Channel, Toon Disney, Nickelodeon, and Discovery Kids.

Digital set-top boxes will also provide an easy user interface for parents to limit the programming the family watches -- they will be able to block programs by title, by TV or MPAA ratings, by channel, and (for many systems) by time of day.

Despite these pro-consumer and pro-family benefits, the FCC denied Comcast's waiver request on technical grounds (but granted the company leave to file an amended request, which it has). Among the reasons: Consumer electronics manufacturers oppose a waiver. They would naturally prefer that consumers purchase their higher-end, higher-priced offerings. They do, however, hasten to predict that lower prices are around the corner if only regulators remain vigilant. Thus, a regulation intended to protect consumers instead mainly exists to protect competitors.

The full article is here.

March 15, 2007
FCC is Backsliding

A Federal Communications Commission staffer reports that commissioners are considering a 30% cap on the number of households a single cable operator may serve. Multichannel News notes that a cap would primarily affect one company:

Citing Kagan Research, Comcast recently told the FCC that it serves 26.2 million subscribers, or 27% of the country's 96.8 million pay TV subscribers. Under a 30% cap, Comcast could, in a few years, find itself refusing service to customers seeking to sign up for its fast-growing voice-video-data triple-play bundle. The 30% cap would also effectively block Comcast from buying a cable company with more than 3 million subscribers.
If cable operators were the only source of video programming, it might make sense to have a rule like this. But, as everyone knows, they aren't. There are the broadcasters, the Direct Broadcast Satellite providers and now the big telephone companies and the Internet. It's hard to imagine any one company dominates this media galaxy. But if so, that's why we have the Antitrust Division.

Intuitively, some people feel if we have more cable TV owners and CEOs, it stands to reason we'll get more diverse views and programming. In reality, most investors and managers are motivated not by individual political, cultural or artistic agendas, but on serving customers, i.e., providing whatever sells. Others recall that, for whatever reason, back when we had heavy-handed regulation television seemed much more "tasteful" than it does today. But that's only because society's values used to be different. It's impossible to legislate taste and morality.

A 30% cable cap will allow the FCC to extort anything it wants from Comcast, the only cable company with a market share approaching 30%. Because, eventually, Comcast will need to seek a waiver. We don't know who will be running the FCC when that happens, nor what their political, cultural or artistic agenda may be.

October 12, 2006
Social conservatives need to rediscover "personal responsibility"

The Christian Coalition's idiotic support for net neutrality regulation, in part, prompted Dick Armey to observe:

Dick Armey as Majority Leader

America's Christian conservative movement is confronted with this divide: small government advocates who want to practice their faith independent of heavy-handed government versus big government sympathizers who want to impose their version of "righteousness" on others through the hammer of law.

We must avoid the temptation to use the power of government to perfect our society and its citizens. That is the same urge that drives the Left and the socialists, and I can assure you that every program or power we give government today in the name of our values can be turned against us when the day comes where a majority of Congress is hostile to us.

Amen. Regulation only begets more regulation.

It's not just the Christian Coalition, unfortunately, playing with fire and endangering our personal liberties. Attorney General Alberto R. Gonzales seems to want to preserve Internet customer data to make it easier to combat child sexual exploitation (see my previous post). The Internet admittedly creates or expands opportunies for sexual predators, but it also allows undercover agents to pose as children for the purpose of apprehending predators. Gonzales ought to put more resources into sting operations, which appear to be highly successful. Not force the private sector to maintain data on millions of innocent people -- data which invariably will be lost, stolen or mined for some other purpose.

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