by Eileen | 12:50 am, January 4, 2013 | Comments Off
When last we visited the privacy of the American citizen, as 2012 shuddered to an end, things locked rocky. Having delayed addressing bills related to privacy for most of the year, Congress got around to FISA, ECPA, and other foul emanations with only days to go. Far be it from me to suggest our elected leaders deliberately ignore pending legislation and then use the crisis they create as an excuse to ignore sensible amendments…but that is precisely what happened. ‘We haven’t the time!’ went the cry. ‘Just pass everything!’
Among the legislative orgy that you missed because you were playing with new Christmas toys was a five year renewal of FISA. The longest possible renewal without a single step to limit the scope of this beast. FISA, FISA, FISA. Seriously, goddammit, why is it always FISA?
Passed in Watergate’s wake to curb domestic spying, the Foreign Intelligence Surveillance Act purports to protect Americans from high-powered nerds – basically, the chubby loser who followed you around junior high dances and eye-rape you now has a security clearance, retroactive immunity, and knows where you live. That’s the NSA, who use FISA like a rent boy. Rather than limiting Nixonian excess, FISA is become death, destroyer of the Fourth Amendment.
One FISA provision allows warrantless surveillance of Americans on American soil so long as the person receiving the communication is a terrorist located overseas…or is a suspected terrorist…or so long as the NSA ‘reasonably’ believes that to be true…or so long as the NSA can keep a straight face while saying that’s what they thought.
Contempt aside, these aren’t mal-adjusted dweebs trolling through your life. These are aspiring totalitarians who want to legally collect everything about everyone all the time, and they’re making terrifying progress. Nor is it really about the likelihood that some pervert with a security clearance is watching you right now. It’s about the reality that the dragnet of data, data kept indefinitely, means that if you ever become the object of government interest, your entire past is already on file.
To wit, once upon a time, the Bush-era Terrorist Surveillance Program was being used to spy on the privileged communications between some foreign nationals living outside the U.S. and their U.S. based American lawyers. The attorneys learned about it when the NSA accidentally mailed documents regarding the surveillance to their lawfirm.
I know – how frightened ought we to be of a spyring so dumb they mail proof of surveillance to victims who were previously in the dark? But this does raise the question of just who was meant to receive the NSA’s largesse. We also do well to remember that the American Governmment’s trademark combination of power and ineptitude has caused problems before.
Fast forward a few years and the lawyers actually proved their case. Given that the government ‘disappeared‘ the actual evidence using the State Secrets privilege, this is itself a coup. The decision represented the lone decision that clearly placed privacy over the deluge of surveillance following 9/11. The humans beat back the trolls on that one, shining point. And it was quashed by the 9th Circuit.
Granted, the 9th Circuit Court of Appeals is not worth the powder it would take to blow it to hell, but PPC is going to try anyway. We’re putting together a road trip. Get in touch. Really.
Owing to its bloated size, the 9th swings a fairly big di….um….welds substantial power. Their ruling, hair-raising and hairsplitting, held that FISA never waived sovereign immunity. In other words, the 9th didn’t demur from the argument that the NSA knowingly spied on citizens, violated attorney-client privilege, and thumbed its nose at the Constitution. They just fell back on the time honored failsafe of children and lawyers who studied at 4th tier schools; ‘Simon Says’.
Distilled to a sentence; the 9th held that because the U.S. government never specifically agreed to be sued for baldfaced violations of the Constitution, they were – ta-da – immune!
The case was ripe for SCOTUS…until… Well, the attorneys aren’t pursuing that. At first look, it’s a blow for we secret-keepers. But there is a point in not pursuing Supreme Court review. The current Nine Wise Souls would probably uphold the 9th’s reversal of the original decision, and that would make this horror – currently binding in the 9th’s nine-state realm – law from sea to covertly recorded sea.
Standard practice for intelligent folk, that – don’t press a fight when the judge is in your enemy’s pocket. But it also means that, given the chance to abide by the Fourth Amendment, the current incarnation of our highest court would likely abuse it, instead. And that…well, that just means the PPC roadtrip to blow-up the 9th Circuit will be moving on to DC. Get in touch. Really. It’ll be awesome.
While there, we can ask after ‘Perfect Citizen’, the NSA project dedicated to the continuity of vital infrastructure in the event of a disaster. And if you believe something called ‘Perfect Citizen’ is a benign bid to ensure substations aren’t shanghaied by loonies in headscarves, you can’t come on the roadtrip.
Perfect Citizen has been publicly known since July 2010, and the original contract was awarded in mid-2007, so who knows how old the progra truly is, but the FOIA cache, redacted within an inch of its life and already set for Antiques Roadshow, came through only yesterday.
Preventing utilities and infrastructure from being disabled or used against us is a laudable aim. So is ending poverty, but that doesn’t mean everything done in its name is wise, or humane, for that matter. Oversight and surveillance capabilities get misused. Any potential to violate privacy will be identified and exploited. Datasets are inevitably applied to projects and agendas far beyond their original scope. The sun rises. The sun sets. It is the way of things.
Even that presumes the NSA means well and is honest about what, precisely, Perfect Citizen is. Proper logic may require extending the principle of charity to all, but common sense and history tell us the NSA already knows precisely what it intends to do with this particular data grab.
Realistically, this is not about spooks who are afraid of losing cable and being unable to use the espresso maker if Red Dawn comes true. Perfect Citizen raised the unsettling possibility of just how much control over vital utilities will be placed under the government. Right off the bat, no one should be reduced to having so little privacy that the state knows when you’re running the A/C.
More abstractly, decentralization and myriad standards are actually a help in protecting infrastructure. So long as there is no one point of control, no single standard governing the systems, disabling those systems is a very big prospect. When Perfect Citizen’s existence broke, journalists raised questions about how much mission creep the program would experience, whether it was really a first step at domestic surveillance for an agency limited to overseas activity but long covetous of a blank check on domestic shores, and pointed to the frightening potential of allowing the state to watch the nation’s infrastructure in real time.
Without actually sharing anything, the NSA decried all this, calling Perfect Citizen “purely a vulnerabilities-assessment and capabilities-development contract.“ If that didn’t shush the civil libertarians, we were assured the NSA “strictly adhere[s] to both the spirit and the letter of U.S. laws and regulations.” While we’re at it, the check’s in the mail and I’ll respect you in the morning.
Maybe, Perfect Citizen isn’t aping Orwell. Probably not. There’s an awfully low limit to what the likes of us might accurately say. In these matters, what we do know is years out of date, incomplete, and often of dubious veracity. Even I will admit there are some aspects of national security that only work if kept secret. Then again, the NSA is the boy who cried wolf of the federal government. They could save orphans from a burning tower only to be accused of setting the fire as a cover to steal confidential data from the office next door. And I wouldn’t put it past them. But they’ve earned that reputation many times over. At best, Perfect Citizen is government hubris – Beltway buffoons convinced they can and must improve the grid. To assert more would verge on the conspiratorial.
Much as the NSA indulges in breathtaking conspiratorial alarmism with their ceaseless caterwauling about terrorists around each corner.
But at least we’ve got a stack of barely legible documents that we didn’t have before.
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