Tag Archives: Snowden

A Facebook News Sandwich

Wired UK reports that Facebook has created a “Connectivity Lab” dedicated to bringing the internet to remote areas via a network of “flying drones, satellites, and infrared lasers capable of beaming internet connections to people down here on earth.” As Wired notes, the news comes within days of Facebook’s acquisition of gaming headset manufacturer Oculus, which Facebook plans to use to develop virtual reality enhancements for its social network.

A recurring theme on News Sandwich is the celebration of innovation, particularly in an economy struggling to survive after the lashings it has received from the last few presidents. But I find Facebook’s investments especially heartening because they are explicitly aimed at the long term: “[W]hile discussing the Oculus buy, Zuckerberg painted both projects as platforms that represent not the near future of Facebook, but the distant future.”

Innovative tech industry leaders are even more important today, because we are depending on them to figure out ways to protect our privacy until we can either elect the right politicians and win the right court cases needed to achieve major changes in the law.

Remember when Obama promised to end the NSA’s bulk metadata collection program “as we know it”? Well, as I suspected, so far it’s just a bunch of hot air. If you dig down into this New York Times story, entitled “Obama to Call for End to N.S.A.’s Bulk Data Collection,” you will learn, first, that “the administration has decided to ask the Foreign Intelligence Surveillance Court to renew the program as it exists for at least one more 90-day cycle”—i.e., at least another three months of the program as it is. Then, the plan is apparently to do exactly what Obama previously admitted was not a real solution: require the phone companies to retain the metadata. The only difference, apparently, is that the data will be retained for only 18 months, whereas the NSA is currently collecting and retaining data for five years.

Hmmm, 18 months. Just enough time for Obama to finish up his term, leave office, and even help the next democrat get elected.

Conspiracy theories aside, it is wrong for the government to force companies to retain this data even if, as the New York Times reports, “federal regulations already generally require [it].” Moreover, even assuming (as I do) that phone companies have a legitimate business reason to retain some metadata for some period of time, it is wrong for government to be able to obtain that data without probable cause and particularized suspicion.

What was perhaps most disappointing to me about Obama’s announcement of, essentially, nothing, was the news that Edward Snowden hailed Obama’s proposals as a “turning point.” Am I missing something? I just don’t see that requiring phone companies to do the government’s dirty work makes a bit of difference. Is Snowden trying to negotiate a plea bargain with Obama?

With Obama seemingly determined to keep his toys, and Snowden dropping the ball, I turn to the tech industry innovators and leaders to develop ways to protect our privacy in the current legal context. And I am hopeful that Mark Zuckerberg will do his part. In a recent post on Facebook, Zuckerberg wrote:

The US government should be the champion for the internet, not a threat. They need to be much more transparent about what they’re doing, or otherwise people will believe the worst.

I’ve called President Obama to express my frustration over the damage the government is creating for all of our future. Unfortunately, it seems like it will take a very long time for true full reform.

So it’s up to us — all of us — to build the internet we want. Together, we can build a space that is greater and a more important part of the world than anything we have today, but is also safe and secure. I’m committed to seeing this happen, and you can count on Facebook to do our part.

Whatever complaints I have about Facebook—the ads, the default settings or notifications I don’t always like, the confusing changes in news feed and profile layouts—I commend Mark Zuckerberg for continuing to innovate for the long term, and for committing to protect our privacy, despite governments that seem intent on violating it.

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An NSA News Sandwich

According to The Guardian, German Chancellor Angela Merkel compared the NSA’s snooping practices “with those of the Stasi, the ubiquitous and all-powerful secret police of the communist dictatorship in East Germany, where she grew up.” She is said to have done this during “an angry exchange with Barack Obama” on the phone in October. Edward Snowden had apparently revealed that the NSA was listening in on Merkel’s private cell phone conversations. She also is reported to have said that the NSA cannot be trusted with private information, as evidenced by the fact that Snowden was able to escape with so much of it.

My question for Merkel is: what if Snowden hadn’t been able to escape with that data? Would she say that ignorance is bliss? Even if Merkel is a little confused about whether to cheer the Snowden leaks, I am glad to be able to live vicariously through her having “an angry exchange” with our president.

Those who, like me, disapprove of the NSA’s spying activities will be dismayed to learn that a recent White House-sponsored review of the NSA’s activities has resulted in a recommendation that the NSA continue its programs essentially unchanged. For example, the report is said to recommend continuing the bulk data collection of Americans’ telephone metadata, without probable cause or particularized suspicion, with the only changes being (1) the level of suspicion required to conduct a search on the ginormous database, and (2) the nominal collector and storer of the data would be the telephone companies. I agree with Jim Harper of Cato that requiring the phone companies collect and store the data makes no substantial difference and, in fact, may be worse than the existing program. “Is secretly violating Americans’ communications privacy really rewarded by a policy requiring the violation of Americans’ communications privacy?” he asked.

Harper and other privacy advocates were heartened this week by a federal district judge who ruled that the NSA spying programs were likely unconstitutional. The Guardian provides access to the full text of the ruling, which is long and addresses issues of jurisdiction and standing, but I focused on the part that most interested me: the section pertaining to the third-party doctrine. The judge was conservative, as is appropriate for a district court ruling. He did not say we should get rid of the third-party doctrine, much less the “reasonable expectation of privacy” test, as I do in my recent PJ Media piece and forthcoming law review article. But he did say that he doubted whether the 1978 Supreme Court decision, Smith v. Maryland, a staple of third-party doctrine jurisprudence, could sanction the legality of the NSA’s bulk collection of telephone metadata. Cell phone use today isn’t comparable to the use of the telephone in the 1970s, and so the fact that one might not have had a “reasonable expectation of privacy” in phone metadata in the 1970s doesn’t say anything about whether one has such an expectation today.

While I wish the judge had gone further, it’s a great start and it invites judges on appeal to take a closer look at the third-party doctrine.

 

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A Controversial News Sandwich for December 3, 2013

Today’s stories, and my classification of them as either good or bad news, will test the limits of News Sandwich readers’ agreement with my views. Without further ado…

Good News: This story from the Washington Post, in which we learn about the testimony of The Guardian UK editor, Alan Rusbridger, before the Commons Home Affairs Committee, including his revelation of the fact that The Guardian has published only 1% of the documents leaked to them by Edward Snowden.

Unlike many nonleftists, I think, based on everything I know about Edward Snowden’s actions, what he did was right. Our government has been engaging in bulk collection of metadata (as well as at least some data) without any probable cause or particularized suspicion. It’s been doing so because of the so-called “third-party doctrine,” which allows, in effect, the government to create a “haystack” of metadata without warrant, and without running afoul of the Fourth Amendment. I have argued on my show that I think this is wrong and that the third-party doctrine needs to be overturned or superseded by statute. (I also have an article, forthcoming, on this topic in The St. John’s Law Review.)

I believe what Snowden has done has helped to call attention to the problem, and that it was justified because, as Ambassador John Bolton said when I interviewed him on the Tammy Bruce show, “all three branches of government” have signed off on what the NSA has been doing. In other words, Snowden had no realistic alternative except to go to the public in hopes of educating us about our government’s wrongdoing. So far as I know, neither he nor The Guardian have acted recklessly in a way that would put our or Britain’s military or intelligence personnel at risk. They have revealed only what is necessary to draw attention to government wrongdoing. (For more on the defense of Snowden’s actions, listen to Leonard Peikoff on Snowden, as well as the follow-up podcast I recorded with him about the NSA and the third-party doctrine.)

So, from my point of view, it’s good to hear that there is a lot more information available, thanks to Snowden, which the press can use to help educate the public and hold government accountable. It was also good to hear that The Guardian is being responsible, not reckless, with the information entrusted to it by Snowden. I was also glad to hear that they destroyed their hard drives, after sending copies of the leaked documents overseas, rather than allowing them to be confiscated by the government. Finally, two bits of great news in the story: first, that the principle of freedom of speech and the press can at least be invoked to defend oneself against an overbearing government, even today; second, that United States media organizations (including the New York Times, Washington Post, Associated Press) are backing up The Guardian: They signed a joint letter to the parliamentary panel stating, in part, that “to the rest of the world, it appears that press freedom itself is under attack in Britain.”

It’s too bad that freedom of commerce isn’t respected at least as much as freedom of the press…

Bad News (HT to reader Michael Shapiro, who sent me this story): This story from tuaw.com, in which we learn about the abusive behavior already being exhibited by Apple’s court-appointed antitrust monitor, Michael Bromwich. I think antitrust laws are immoral, so I think it’s bad enough that Apple was ever sued for violating them. What’s worse (but not surprising, unfortunately), is the way Apple is being treated by Bromwich. Apparently Bromwich, who lacks adequate antitrust experience, has hired other experienced attorneys to “assist” him, and so is charging Apple a whopping $1,100 an hour so that he and they can “earn a profit” from their efforts in helping to keep a government gun steadily pointing in Apple’s direction. In addition, Apple says that Bromwich has requested meetings with “Apple executives and board members that have nothing to do with Apple’s e-book antitrust compliance. For example, Bromwich, for whatever reason, wanted to sit down and interview Apple designer Jony Ive and Apple board member Al Gore.” Hey, I’d love to be paid hundreds an hour to sit down and meet with Jony Ive! (You would, in fact, have to pay me hundreds an hour to sit down for a meeting with Al Gore. Ewww.)

As Tuaw reports, Bromwich, in his response, essentially reminded Apple that he doesn’t work for them, that he is, in fact, a government-appointed thug wielding power over them. He also stated, ominously, “It is very early in a long-term relationship.”

If only Apple could have been appointed a monitor like the “Wet Nurse” from Atlas Shrugged!

And now for something completely different:

Good News (HT to cartoonist Bosch Fawstin, who sent me this story:

Perhaps the best news I’ve read today is that two “blue” states, Massachusetts and New York, are contemplating at least delaying their implementation of the Common Core educational standards. Breitbart reports that New York Governor Andrew Cuomo is now suggesting that implementation might be delayed there, apparently caving into pressure put on him from concerned parents and others challenging the imposition of these nationwide standards. Massachusetts seems to be delaying implementation for more practical reasons, like the impracticality of meeting the 2014-15 standardized testing timeline or, more importantly, a desire to not screw up a good thing: their students have been, on average, outperforming the rest of the country on math for some time now. According to the article, Massachusetts and New York are now joining fifteen other states who are reconsidering their involvement with the Common Core. Let’s hope this is only the beginning of Americans’ rejection of our Federal Government’s latest power grab, the power grab with the potential to have the most destructive long-term consequences. (For more on Common Core and why I think it’s wrong, listen to “Common Core: Uncommon Danger,” my show in which I discuss the Common Core with professor C. Bradley Thompson.)

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