Case in point: a U.S. House panel approved legislation transferring control of private networks to the state.  H.R. 3674 passed the Subcommittee on Cybersecurity, Infrastructure Protection, and Security Technologies and was passed to the full Committee on Homeland Security.

Now, those of you who have ever navigated a government website or followed technology news won’t be surprised to hear that Uncle Sam is a wee bit late to the game on really ‘getting’ the gestalt of the InterTubz.  As it stands, cybersecurity largely lies in the hands of private companies, men and women who have no incentive to protect the Web, other than the loss of their life’s work, the decimation of their reputation, the wholesale destruction of their cherished way of life and the systems enabling it, and ungodly sums of money.

Nevertheless, Washington’s consistent theme is that everything is improved when it is both mandatory and centralized.  In that vein, behold PRECISE, a precious acronym for Promoting and Enhancing Cybersecurity and Information Sharing Effectiveness.  This boondoggle would set DHS loose on America’s domestic cybersecurity, charging Janet Napolitano and her troops to create yet another government entity.  The proposed National Information Sharing Organization represents one more blow to spontaneous order; it would seek to coordinate research, communication, technical assistance, and threat response – as if private Web companies have no incentive or competency on their own.

And, yes, there would be lots more information flowing to the government.

Make no mistake, I am not understating the gravity of the devastation caused by a hypothetical major cybersecurity attack.  Nor am I arguing that there aren’t people who would like very much to use the Net to harm American interests.  What I am galled by is the proposal that having the Web’s creators take their lead from Washington is the way to go.

Alright, let’s break down PRECISE.  It, along with the smorgasbord of suggested cybersecurity laws, is the legislative equivalent of South Park’s Underpant Gnomes.  These acts, including PRECISE, suggest lots of lofty, yet extraordinarily vague, ends.  They’re full of language about writing good guidelines within reasonable time and soliciting feedback from relevant experts.  But they don’t spell things out.  When it comes to legislation, this is the very devil.  Giving wiggle room to lawmakers is no smarter, or more ethical, than giving drugs to an addict.

As it stands, the federal government already has a protocol – a very aggressive protocol - it uses to secure its own networks: Einstein.  Under Einstein, the government monitors the online activities and communications of its employees, using algorithmic programs to catch anything that might be an attack and passing that material on for personal scrutiny.  Einstein watches both the ‘flow rate’ of employees’ behavior – such things as time and volume of online activity and to ‘to’ and ‘from’ addresses of e-mails and the content of those communications.

Monitoring flow rate may have some legal precedent defining it as communication with no ‘Reasonable Expectation of Privacy,’ though there is still case to be made that something like the domain name in a sender or recipient address could give away personal information.  Watching the content is another matter, altogether.  Gathering such information requires a technique called ‘Deep Packet Inspection,’ and it means that the content of personal communications are open to government inspection.  Because various agencies of the federal government share information gleaned from Einstein and reserve the right to disclose data to state and local government and law enforcement groups, there is also a grave loss of control over who sees messages not intended for public consumption.

Federal employees arguably agree to a diminished expectation of privacy at work as part of their job and there is something to be said for a higher level of surveillance within the government’s own networks.  Logging on to government network also requires clicking the ‘agree’ button on a banner ad warning that activity and communications are subject to surveillance.  It’s not an outrageous expectation that employees work while at work and use smartphones and private laptops for checking personal messages.

PRECISE, however, leaves open the worrying possibility that Einstein standards of expectation of privacy could become the norm over the entire Web.  The Justice Department’s Office of Legal Counsel has already advised DHS that there is no 4th Amendment violation in doing just that.  Such asinine reasoning goes back to a 1976 Supreme Court ruling that people have no expectation of privacy regarding information divulged to third parties, even if the information was shared with an expectation of trust.  The law recognizes some ‘privileges’, but overwhelming the current precedent is that once you willingly shared something or wrote it down, you have neither 4th nor 5th Amendment protections over the state seizing that communication.

This ‘Third Party Doctrine’ makes no sense in the digital age, and the looming passage of PRECISE is a frightening instance of policy that was dangerous enough when promulgated and far worse now.

For a moment, let’s set aside the other attendant issues; privacy, better ways to spend money, and the contestable reality of a threat that justifies such excesses.  Let’s look at the health question.  These machines stand in open, crowded, and filthy areas.  They get infrequent and, almost certainly, inadequate maintenance.  The people running them don’t even need a high school diploma or basic literacy to get the job.  The scanners lack radiation alarms and, until recently, their operators did not wear dosimeters.

…it now takes an Act of Congress to force the U.S. Government to conduct actual investigation into wantonly showering the populace with radiation.

Right here, we’ve got problems.  Any doctor who so callously exposed her patients to radiation would be stripped of her license.  Any radiation technician who took such shoddy care of the equipment he uses would be fired.  Any hospital that tolerated such carelessness would lose accreditation.  The government justifies such laws on the medical use of radiation based on the inherent danger.  This is the stuff that mutates your cells, turns yours bone into crumbly mush, and inflicts giant ill-tempered lizards on the Orient.

Why then, are we operating under the asinine fallacy that radiation isn’t harmful if we say it’s for security rather than therapy?  Radiation is radiation.  It doesn’t read policy memos and it doesn’t care that Homeland Security sees to be willing away the unstable isotopes.  Whatever alternate universe the politicians are on, here in reality, radiation is a threat and we’re all at higher risk.  Higher risk not just because of the roll-out of scanners at airports, but because of the government’s fetish for adding the things in every public place from sea to shining sea.

Washington tells us it’s all perfectly safe.  They, of course, can’t actually share any of the evidence they swear to possess with us peons, national security and all.  Even were all that tip-top evidence to exist, the outrageous laxity of radioactive machines popping up all around us is a problem.  Simply put, intelligent people aren’t so frivolous to a known carcinogen.

Finally, there may be some movement on the impending irradiation of the Land of the Free.  Principally authored by Susan Collins (R-ME), and with bipartisan sponsorship, the study sign bill would require that DHS contract with an independent lab to test radiation levels.

Last fall, John Pistole, the TSA Administrator who would not rule out cavity searches at airports, finally promised Congress that he would preform just such a study.  Within days, he reneged, saying that DHS’ own private studies concluded there was radiation risk.  That study, naturally, is not available for citizens to review.  TSA officials brazenly insist that no one will get cancer from the ionizing radiation of scanners, an alarming level of certainty with no basis for belief.

Europe has already banned the use of such scanners over radiation concerns.  ProPublica concluded that no peer-reviewed work on the safety of backscatter x-rays has been done and that the TSA may have glossed over safety problems with the machines.  Scientists who have been publicly named by the TSA as supporters of the use of radiation in passenger screening have reacted angrily, accusing the agency of misrepresenting their work for its own agenda.  The National Academy of Science has espoused a linear model of radiation risk, meaning that cancer risk grows over time with increased exposure, finally concluding that no amount of radiation, small as it may be, is entirely safe.

The FDA declined to invoke its power to regulate non-medical use of radiation, opting to rely on the TSA voluntarily seeing to the safety of the machines.  In turn, the TSA ignored the requirement to consider public comment and paid no heed to research that suggested the machines posed a risk.  In short, there exists little data, none of it up to academic snuff.

What this means, boys and girls, is that it now takes an Act of Congress to force the U.S. Government to conduct actual investigation into wantonly showering the populace with radiation.  The level of disregard for citizens this evinces ought to concern us all.

Sen. Collins will introduce her bill soon.  Until then, we may at least hope that, when the radiation turns us all into mutants, our superpowers will be enough to extract a bloody vengeance from Washington.

When Hollywood film director James Cameron (Avatar, Titanic, Terminator) announced that he was moving to New Zealand, preppers, fiscal doomsayers, and alarmists had a field day in deciphering his motives for moving, ultimately deciding that Cameron was moving so that he is better able to weather the massive monetary upheaval that is upcoming or he is escaping U.S. taxes and regulations.

Marc Slavo, as an example, suggested ulterior motives other than those stated by Cameron: “While the move for the Canadian-born Cameron may initially be perceived as a rejection or denouncement of American policies and ideals…[he] may have ulterior motivations as evidenced by where he’s planning on moving and what he’s planning on doing once he gets there.”

The Associated Press reported that Cameron successfully applied to buy 2,500 acres of farmland and he “intend[s] to reside indefinitely in New Zealand and [is] acquiring the property to reside on and operate as a working farm.” Slavo is skeptical in light of Cameron’s lack of need to be working at all, having made in excess of $250 million last year, according to Salon magazine.

And Slavo is not persuaded that Cameron’s real reason is to be closer to the New Zealand headquarters of Weta Digital, which won an Oscar for its special effects in the movie Avatar. Nor is he persuaded that Cameron wants to be there solely to direct the sequel to Avatar scheduled to begin later this year. Slavo instead is thinking that Cameron knows that

Continue reading Rich Americans Are Fleeing the Country

In the summary of its “Budget and Economic Outlook” published on Tuesday, the Congressional Budget Office (CBO) noted the supportability of deficit spending even under its “alternative” analysis. Noted the CBO: “Even if the fiscal policies specified by current law come to pass, budgetary challenges over the longer term remain—and the challenges will be much more acute if those policies do not remain in place.” It added:

Under both CBO’s baseline and its alternative fiscal scenario, the aging of the population and rising costs for health care will push spending for Social Security, Medicare, Medicaid, and other federal health care programs considerably higher as a percentage of GDP. If that rising level of spending is coupled with revenues that are held close to the average share of GDP that they have represented for the past 40 years (rather than being allowed to increase, as under current law), the resulting deficits will increase federal debt to unsupportable levels.

In non-economic terms, then, the CBO is saying that no matter how one looks at the numbers, the United States is headed for disaster.

Using assumptions that current law remains in place—with the Bush tax cuts disappearing—revenues in 2013 and beyond will increase by an astonishing $800 billion, and yet even that enormous tax hike isn’t enough to close the gap between expenditures and taxes. The CBO even took into account that inflation will drive peoples’ incomes into higher tax brackets, subjecting more of their taxable income to higher rates of taxation, and still that wasn’t enough. In that “steady-state” scenario the national debt, currently pushing $16 trillion, would

Continue reading CBO Report: U.S. Deficits “Unsupportable”

Briefly, it’s a radical answer to the onslaught of data-mining.

On the face, this all sounds great.  Of course, major money stands to flow in government coffers for violations, and the state will enjoy daunting new powers to investigate.  One is tempted to wonder if Europeans have gone from corporate frying pan to political fire.  

The phrasing is, right off the bat, worrying.  A ‘Right to be forgotten’ embodies in its very name an obligation on others to do the forgetting.  And that is an entitlement.  Who will be paying for this?  On the surface, it seems that this law delivers a potentially crushing burden to businesses, requiring them to spend more time, money, and effort on getting explicit permission from users, on complying, and on ruthlessly purging data from the length and breadth of their reach.

Hold on a moment, though.  What’s so absurd about an opt-in policy that aims for informed consent?  It costs to be ethical, but that’s no excuse for getting up to hijinks.  One could also say that the new right is more aptly termed a ‘Right to Purge’ or a ‘Right to Reclaim Private Data.’  No doubt, the new EU rules affirm ideas of privacy as a fundamental right, one linked to dignity, reputation, and control over personal information.  Companies might whine – they already do – over all the effort they put into collating and maintaining ‘Personally Identifiable Information’ (PII), insisting they own data about their users.  This has always stunk to me; it’s a bit like a burglar proclaiming he owns your stuff by virtue of all the work and and risk he took on to burgle you.

The flip side of this is, though, an economically unavoidable truth.  Simply, if you aren’t paying for a service, then you are the service.  The tangle of social networks, reward cards, and online services that are “free” are not, and never have been, any such thing.  You pay with all the information they can gather on you.  A world with data purge on demand has the possibility to be a world with a slowed pace of innovation and far fewer free services.

I say it has the possibility because, honestly, no one can say just yet.  Perhaps what people want is the assurance that someone is watching out for them, that they have, at any time, the option to purge their electronic histories.  It might turn out that the belief that companies are acting under the threat of fines and oversight will keep them to the straight and narrow.  Again, it might turn out that people become, on the whole, even more careless about handing out personal information if they assume they can always take it back.  This is a weird new coupling of  market-based self-policing and questionable faith in the state to take care of all things.  Especially from an American mindset a worldview in which the government is the greater threat to privacy.

What if this fear turns out to be well founded?  What if the most insidious companies still maintain data, if governments use the law to gain even more access to data and more control, if the law is a feelgood shield to hide the reality of state surveillance?  It’s already a problem that one of the biggest spenders on gobbling up data is the government, and that holds here and across the pond.  It stands to reason that telling the state to ‘forget’ you won’t be an option.  Equally bothersome, whatever money comes in, legitimate victims of privacy violations won’t see a dime.  That’s ever the case with governments punishing crimes by fining Peter, sending Paul away with a apt on the head, and keeping the money.

In short, it’s easy to see how EU governments will benefit here, but it’s less clear how much this will do for individuals.  One thing, though, does seem predictable.  The U.S. is going to have to respond, one way or another.  The first response has been  tepid.  Washington raised the same points I did – compliance costs, deleterious effect on innovation, the need to create an authority with the power to oversee the goody bag of new protections.  Aside from vague promises of a tip-top policy at some point, that’s it.

In America, the reality is that companies are downright monstrous about letting users, even former users and those who already paid once for services, truly delete data.  In the home of such devilish beasties as Google and FaceBook, this is a major consideration.  Diminished luster and all, America’s answer to the privacy question will have global heft.  Too, after a point, no answer becomes an answer.

Just as I worry the EU, while no doubt having made a mighty stride, will need to balance and refine its new law with some thought to market realities, I fear whatever Washington delivers will fall short in just the opposite direction – kowtowing to data greedy corporations with inadequate thought for us peons.

And what the peons?  Is it, frankly, high time more of us began paying serious attention to what we do with our data?  Could we have just a touch more judgment and foresight?  If we each own our own data, already a prime assumption of privacy-obsessed critters such as myself, then oughtn’t we each to be the first guardians?  Our new reality is a hyperlinked world with an unquenchable thirst for information and a distinct lack of ethical quandaries about getting it.  It’s high time to adapt.

Elliot Fineman, CEO of the National Gun Victims Action Council (NGAC) announced last Monday that its members will boycott Starbucks starting on St. Valentine’s Day to protest the company’s resistance to demands that they cease serving customers who may be carrying weapons, open or concealed. Its purpose, according to Fineman, is “to eliminate the risk of guns in public places and ultimately to bring sane gun laws to the U.S.” Fineman claims that his group is “a network of 14 million gun victims” and that his boycott is being supported by the Episcopal Peace Fellowship, the United Church of Christ, the Fellowship of Reconciliation along with other secular groups that also support the anti-gun movement. Fineman said:

Starbucks allowing guns to be carried in thousands of their stores significantly increases everyone’s risk of being a victim of gun violence. Open and concealed carry are among the reasons there are 12,000 gun homicides each year in the U.S. If we had England’s gun laws we would expect 375 gun homicides each year—97% less than we have. England’s gun laws are based on protecting public safety, ours on maximizing sales for the gun industry…

Our boycott will reduce Starbucks’ stock price by an amount no rational company would allow.

It was two years ago that the Brady Campaign launched a similar boycott of Starbucks that “failed miserably” according to Dave Stockman, senior editor of Gun Week. Noted Stockman: “Starbucks made it plain in 2010…that it [would] abide by local and state laws and [would] not discriminate against a certain class of customers. Many open carry advocates began

Continue reading Anti-Gun Group to Boycott Starbucks on Valentine’s Day

Such as Sonia Sotomayor.

Earlier this week, in U.S. v. Jones, the nine wise souls of Washington ruled – and unanimously at that – that planting a wireless GPS on a man’s car constitutes a search.  Given that the search was carried out sans warrant, the search and the man’s ensuing conviction was thrown out.

All in all, twas a nice surprise in a country that seems to be sliding toward less and less privacy all the time.  The decision was a very narrow one; writing for the Court, Scalia noted that covertly tracking a man’s every movement for nearly a month would violate a reasonable man’s “expectation of privacy.”  That, however, was tempered; as the actions that led to conviction constituted a search and as the search was bad, the entire thing fell apart on Fourth Amendment issues – there was no need to delve into reasonable, subjective expectations of privacy in the case at hand.

What’s interesting is Sotomayor’s concurring opinion, one in which she notes the massive role that electronically conveyed data have come to play and suggests the time has come for a broader re-imagining of what privacy means and how the Fourth Amendment ought to be applied.

As she correctly writes, wise jurisprudence requires preserving the protections inherent in the Fourth at the time it was adopted, at a minimum.  From this, we get, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”

The explosion of the cyber age has birthed ways to communicate, ways to store information, and ways to spy that were inconceivable a generation ago, let alone in the 18th century.  While the Founders did not imagine e-mail and cell phones and GPS, they did not approve of the state knowing a citizen’s every communication and movement.

The threat presented by the current situation far exceeds anything previously possible; surveillance has grown so inexpensive and so easy that people who would never have come under intense government scrutiny now face a very real diminished privacy.  The state also suddenly enjoys an ability to conduct surveillance without anyone – the target or potential witnesses – ever knowing, and to aggregate massive databases they might sell, share, and mine for years.

A “reasonable” expectation of privacy will certainly change in the wake of technology, and some have certainly suggested that change will equal a largely passive acceptance of diminished or non-existent privacy.  Such people, though, tend to be ones who stand to gain greatly from just that outcome and who guard their own privacy fiercely.  Sotomayor’s thought are more realistic and, it is devoutly to be wished, more accurate:

I would ask whether people will reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain , more or less at will, their political and religious beliefs, sexual habits, and so on.

At risk with technology’s continued growth and without a corresponding check of the state’s ability to misuse it, is a chilling effect, citizens’ behavior conditioned by a fear that any number of government agencies could be watching or listening at any time, that anything in their past might be known to the state, and that they will never be sure.

This fear leads Sotomayor to make the most audacious suggestion in  her opinion; that the time has come to reconsider denying any expectation of privacy when someone has divulged information to a third party.  Coming from any federal government employee at all, let alone an appointee of someone like Barack Obama, this is startling – in a great way.

In the past, the government has argued that having shared information with any third party at all destroys the ability to later claim an invasion of privacy or to assert a right against self-incrimination.  Were it not for the various privileges, we’d be in an even worse spot.  However, the reality is that each of us shares sensitive information with all kinds of people and companies in the course of our day-to-day lives.

We provide medical histories in order to receive care, sign off on background checks so that we might get job offers, and implicitly consent to Internet and phone providers logging details of our usage.  We unburden ourselves to close friends, share financial information with tax preparers, and generate rafts of intimate details whenever we are a client, patient, user, applicant, or student.   That does not at all mean anyone of us would like such material to be available to the wide world, or to the government for its leisured perusal.  It certainly does not mean we’d be comfortable with the government aggregating every existing source to paint rich portraits of our personal lives and use them at their discretion.

In short, absolute secrecy should not be a legal prerequisite to recognize that someone has displayed a subjective, and reasonable, expectation of privacy.

Sotomayor now looks to be a key fifth vote on potential future cases impacting privacy.  Her concurrence in Jones is certainly a bright spot in an atmosphere where abuses of technology race ahead of law and policy.

Across the pond, its football players, shadows ministers, and drunk Windsors, but the same theory applies.  The recent kerfuffle over widespread phone hacking has focused keen eyes on British tabloid and their excesses.  Which has led to the Levenson Inquiry on Press Standards (why start now, say I).  Editors of ‘celebrity magazines’ have apparently been receptive, coldly as that may be, to the Inquiry’s idea that a ‘Privacy List’ be established, on which the famous who do not wish to be photographed might enroll.

Hmmmm.

It seems that the U.K.’s motley crew of sensationalist papers have their own  board, and they (sometimes) abide by the rules of something called the Press Complaints Commission (PCC).  The PCC is itself a nascent creation, brought about last summer in the wake of the News of the World scandal.  Now, to my American mind, the British (nay, the European) attitude toward celebrity privacy is, at times, goofy.  If you don’t want to be famous, you don’t need to be.  Wash your soiled linen in private, keep your own counsel, and behave yourself in public.  If those of us with personal entourages can manage it, so can you, darling.

Be that as it may, I will also admit journalists are, not infrequently, vicious.  But what is noteworthy here is that the action that so incensed people involved hacking into the phone of a dead girl and, by showing activity on her voicemail, leading police and her family to falsely believe she was alive.  Why is it that fallout of such horrific intrusion on private citizens is being met with chatter about how better to suit the whims of celebrities?

Overall, the U.S., in law and in culture, gives a lower expectation of privacy to the famous; the reasoning being that people can hardly expect to selectively refute the trappings of a life they chose.  Americans see the major threat to privacy as the government and tend to give shorter shrift to starlets who willingly live in public and then attempt to take back the past only as it becomes inconvenient.  Perhaps this is a noble expression of our expectation that you ought to have some dignity in public and that you are the first person responsible for your reputation.  Or perhaps it is a justification of our deep appetite to bathe in reflected starlight and see our demigods brutally knocked to earth.

Contrarily, Europe sees government as a protector of privacy, privacy that is at gravest threat from the people around you.  Accordingly, those with a higher likelihood of coming under media attention have a higher expectation of privacy.  Sensible application of theory or still-extant vestige of Ancien Regime reverence for the cultural elite?

Back to something that might be addressed at less than book-length:-what will happen if celebrity magazines agree to abide by a ‘Privacy List’?

We might spend the entire day with questions of the state creating a privileged class and effectively legislating what citizens might be interested in.  Let’s not.  The British state does not consider truth as a defense against slander or libel – giving rise to ‘libel tourism’ –  and still censors films.  We may assume for the current article that there is an appetite to restrict press freedoms.  However, it does bear pointing out that the only reason tabloids are at all willing to discuss self-regulation is a bid to head off that very threat of government oversight.

First, tabloids sell because human nature is voyeuristic and often prurient.  A so-called ‘Privacy List’ is more apt to trigger black market broadsheets full of uncredited photos and scoops than to achieve its stated aim.  The truly gossip obsessed are not going to pay with their dollars or their eyes for a publicist-vetted puff piece about whatever that happened three days ago.  Also, given how many celebrities do conduct themselves, only publishing verifiable misbehavior is not going to do anyone’s reputation any favors.

On the other side, huge swathes of material in the glitzier publications is already done in close agreement with the celebrities featured.  Might this proposed List really only be formalizing a tacit agreement?  Then again, if the beautiful people are already hand-in-hand with the tabloids and are still getting bad press, they’re bad businessmen, pure and simple.  The solution to unfavorable news ought to be a better publicist before seeking new law.

Heck, is the proposal anything other than a flimsy way for both journalists and politicians to be seen to be doing something?  If this itself a choreographed media ploy being played out for the benefit of credulous citizens?

Second, how sound an idea is it to sponsor a culture where a blind eye is turned to poor conduct, provided those involved enjoy sufficient fame?  What on earth will this do to a generation of celebrity-addled kiddies looking to these ill-bred people as roll models?  Be that as it may, why is it the media’s task to provide positive roll models?  Might we expect at least some children to understand that intoxicated, indolent, and indicted is no way to go through life?

Ultimately, do we not punish the tacky and the gauche with shunning and shaming?  Do we not hold the right to refuse to interact with people we find ill-mannered?  Dare we still hope for policy makers who are wise enough not to legislate what is best left to culture?

Similarly, is  this something that would effectively allow a certain set of people to seek out and revel in attention when it suited them and to forbid anyone from looking when it did not?  Is it right to allow the fame hungry to play that game?  How complicit are celebrities in having fostered a tabloid culture that has utterly no boundaries?

This is, perhaps, hinging on the difference between respect, the simple decision not to intrude upon another’s private life, and deference, allowing another person to command your attention one moment and send you scurrying away the next.

Too, we are right in asking how it comes to be that existing laws were insufficient.  Between trespassing, harassment, stalking, tortious privacy claims, interfering in police investigations, and so on, it’s staggering that the state lacks the means to deal with actions that do represent actionable irresponsibility on the part of the press.

This trend is, in my opinion, unlikely to wash up on American shores.  Here, the press enjoys broader freedoms.  Nor has our Fourth Estate, yet, plumbed the tawdry depths of British tabloids.  The American worry, I would caution, is a government that withholds, censors, and denies the existence of information regarding its own activities.  That, sadly, presents a much tougher fight.

Yes, that alone should have you sweating bullets.

Worse yet, the woman, Ramona Fricosu, has only been immunized for the act of producing the material, not for anything that might be found.  The courts openly sought to force her to produce incriminating evidence and a judge smiled on that idea.

Legal types can (and likely, will) go on ad infinitum about the precise wording of the ruling and the meaning of every last comma.  I myself indulged in a little when the case’s decision was still imminent.  Fricosu may have held there are case-specific facts that make the defendant’s Fifth Amendment claim legally invalid, but this is not a good sign that future cases will

Hair splitting sophistry aside, this realistically is a sign the government is no longer even pretending not to be waging war on privacy.  Anyone with regard for their personal life is now going to need to go much further than merely encrypting a drive – and encrypting an entire computer is not a ‘nothing’ step toward describing privacy.

The usual rejoinder from naive sorts convinced the state never spies on ‘good’ people and from the state itself is the tired old ‘If you’ve done nothing wrong, you’ve got nothing to hide’ trope.  Indeed, that’s just what the U.S. Attorney’s office implied in applying for Fricosu’s compelled decryption, explicitly saying that allowing the woman to decline to decrypt her computer would set a precedent allowing terrorists, child rapists, and other assorted creeps to get away with anything; and implicitly stating that the only people who ever actually try to protect their privacy must be nefarious and reprehensible.

Directions for seeking compelled decryption came from D.C., a clear signal that this was never a standard procedure undertaken in Denver; this case always represented the opportunity for the state to move one step closer to rendering any encryption and data protection available to civilians utterly moot.  Anyone who has followed the tenor of civil rights and privacy since 9/11 won’t be surprised.  On all things related to how far the government can go in surveilling tax payers, Bush felt, and Obama feels, that nothing is too far.

Already, we are operating in a theater where ISP providers must save user records for longer and longer spans; where many of the companies that hold your data will turn it over to the state on request, rather than requiring a subpoena or warrant; and where the government openly seeks to require that any encryption technologies have backdoors for the government.

We are told the awesome privilege of snooping through the most personal papers of 300-some-million Americans will be available only to those who ‘need’ it and will be used sparingly.  However, that the state is willing to trample on the Bill of Rights itself to prosecute what is, in the end, a minor criminal trial – nothing at all to do with the twin stand-bys of terrorism and child predation -should tell us very differently.

Savvy types have already thought through the implications of how someone could retain a meaningful Fifth Amendment claim in the face of courts who clearly see that right as an inconvenience, but no one tuned in to this debate thinks the trend is anywhere other than toward decreasing privacy and, thus, decreasing privacy, which ultimately means decreasing freedom.