Thoughts – How can the U.S. Government restrict our First Amendment Rights?

Free Speech

“Vigilance has never been more crucial, or more difficult, for the free press around the world. The greatest threat isn’t to one or two individuals, nor is it confined to any given country or year. An information battle is under way worldwide, and it is evolving in extremely dangerous ways. The one constant, as always, is that reporters are on the front line.”(1)

– Christiane Amanpour

To level set, the objective of this blog is to address the degree to which technology has changed domestic and international politics in the modern Information Age with profound implications upon human civil liberties.

Throughout the arc of history, there is clear and compelling evidence the development and ownership of complex tools and technologies, as a product of human creativity, has changed the course of humanity. There is no shortage of excellent books and blogs written by profound authors on these advancements. There seems, however, to be a gap in the dialog that this blog has addressed and will continue to address. The point of view this blog is written from is that humans have a digital persona that mirrors their physical one, but the two personas do not share the same set of constitutional and human rights despite being one in the same.

In the previous post I revisited one of the core questions of my research efforts to evaluate whether the U.S. could still be considered an authoritarian national surveillance state. My updated findings conclude that not only can the U.S. still be considered an authoritarian national surveillance state; it is actually getting worse and showing few signs of legitimate abatement.

It is generally well understood authoritarian governments look to collect as much information about people as possible, while simultaneously restricting the information people can know about the government’s own activities. Moreover, authoritarian governments also seek to control what can be said about them in public/private. In the U.S. we have the Constitution’s First Amendment, which provides the people the freedom of speech and freedom of the press. Edmund Burke dubbed the press as the “Fourth Estate” attributing it as a fourth branch of government that is critical to a healthy democracy.(2) The Snowden NSA leaks not only touched off a global debate about privacy and surveillance, but also a debate on the freedom of speech and the press to report on sensitive government matters. Given the U.S. government, through the lens of my research is considered deeply authoritarian; the objective of this research post is to examine how the U.S. government can and is seeking to restrict our freedoms of speech and the press, through the lens of progressive legal scholars and presidential advisors who view the U.S Constitution and its freedoms, as “negative rights”. In the interest of context and concision, I will briefly touch on the following questions in this post that have already been addressed in more expansive individual posts on this research blog. If you have already read my previous posts on these questions, feel free to skip ahead to the section titled “A Progressive Projection of the First Amendment”. This is a long form post but I have labored to break the information down into logical and digestible sections.

How has the religion of state power made government simpler?

What does Obama and his NSA Review Panel Really Think About Security & Surveillance?

What do America’s top liberal legal scholars think about surveillance, governance, and their own ideas?

First Amendment Text:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.(3)

How Has the Religion of State Power Made Government Simpler?

Part 1 of this research blog argued the U.S. National Surveillance State is authoritarian in nature by using a framework provided by Jack Balkin at Yale Law School. The framework was found within a broader paper by Balkin titled, “The Constitution in the National Surveillance State.” Moreover, in my research endeavors I found this paper was also published as the lead essay in a book titled “The Constitution in 2020” that was co-edited by Jack Balkin. The book was published in 2009. “The Constitution in 2020”, with extensive funding from George Soros, is a movement that openly seeks to create a “Progressive” consensus as to what the U.S. Constitution should provide for by the year 2020. Before being published as a book, “The Constitution in 2020” was a series of conferences financially underwritten by George Soros’ Open Society Institute, The American Constitution Society, and The Center for American Progress. Those conferences started in 2005.  Coincidentally, Attorney General Eric Holder was a member of the Board of Directors at the American Constitution Society prior to being appointed AG.  Eric Holder’s outgoing quote at the American Constitution Society in 2008:

“Our needlessly abusive and unlawful practices in the ‘War on Terror’ have diminished our standing in the world community and made us less, rather than more safe,” Holder said in his speech this past June. “For the sake of our safety and security, and because it is the right thing to do, the next president must move immediately to reclaim America’s standing in the world as a nation that cherishes and protects individual freedom and basic human rights.”

– Eric Holder, U.S. Attorney General

Part 2 of this research blog argues that Governance, which is based on the rule of law, is a technology in of itself and the nature of current U.S. governance policy is based upon the ideas, methods, and tactics written within the book, “The Constitution in 2020.” The generic name for this movement is: “democratic constitutionalism.”

In 2012 Justice Ruth Bader Ginsburg made the following quote that I believe is emblematic of “Democratic Constitutionalism”:

“I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the Constitution of South Africa … a fundamental instrument of government that embraced basic human rights.”

Supreme Court Justice Ruth Bader Ginsburg, Jan. 30, 2012.

Ms. Ginsburg’s comments may sound absurd, but they reflect an ongoing movement among “progressive” legal activists to render the Constitution, as we know it unrecognizable. Perhaps Harvard law professor Mark Tushnet expressed the best definition of this movement:

“For 30 years, conservatives have hijacked the Constitution, and we’re taking it back.”

Mark Tushnet, Harvard Law School

So the big story is that Justice Ginsburg’s enthusiastic embrace of the South African Constitution is a long-range political movement to create a “progressive” constitution to ultimately supplant the founding documents of the United States. The main threat the Constitution was designed to protect the people from was a source of tyrannical and unchecked power that is in direct conflict with the Bill of Rights.

The purpose of this progressive movement was described in a May 26, 2009, New York Times Magazine article: “… the organizers set out to gather together a group of scholars to define a progressive constitutional agenda for the coming century. … the democratic constitutionalists see courts and political movements as partners, influencing each other and society as a whole.” Democratic constitutionalism (Progressivism) is tantamount to practicing a particular religion; in this case it is the religion of state power. So how do those who practice the religion of state power seek to restrict our first amendment rights to make government simpler?

Although there is no secret about the existence of the “Constitution in 2020” movement, the radicals who would deface the current Constitution plan to do so by stealth.(4) Stealth will be in the details written way below the surface or created by alternative means such as administrative law or international treaties and agreements.(5) Examples like Obamacare and the recent Climate Change agreements are apt. The Trans-Pacific Partnership and the FCC ruling on net neutrality are a few others.  The real threat will come “under the radar,” as President Barack Obama is wont to say.(6)

A lead-off speaker during the follow-up 2009 Soros-funded “Constitution in 2020” conference reconvened at Yale University Law School, professor Aziz Huq of the University of Chicago Law School laid out the need for a deep political masquerade to accomplish real change.(7)

“We’ll start with the problem of candor,” Huq said. “No constitutional movement ever got very far by admitting that it sought innovation in the founding document. Or by admitting that it was enabled by the particular social/historical or doctrinal circumstances of the change that it urged. Yet to be a credible movement for constitutional change—a credible social movement—that movement has to deny, in a sense, its ultimate goal.”(8) 

These words sound remarkably just like the recently released statements of key Obamacare architect, Jonathan Gruber, regarding how American voters are stupid and lack of transparency is a powerful political tool and was necessary to gain the votes for the Obamacare legislation.(9)

And the deniable goal of progressivism clearly is to supplant our rights, memorialized for Americans with our unique position as the freest people in the world, with a bizarre set of government-granted privileges masked as “rights” or “positive rights”—a kind of leftist cultural affirmative action creating unprecedented social division: a constitutional caste system between the American people.(10) It will be a reflection of President Obama’s now ubiquitous cultural war.(11) Lets now explore what Obama and his NSA review panel really think about security and surveillance.

What does Obama and His NSA Review Panel Really Think About Security & Surveillance?

As stated in a previous post regarding how this research project started, Part 1 and Part 2 of this research blog were written in June and October of 2013.  Part 3 was written in 2011 as my Masters Thesis at The Fletcher School of Law and Diplomacy.  After writing Part 1 in June 2013, I decided to take the opportunity to distribute it to as many scholars, thought leaders, journalists, and business people I could find who were speaking and writing publicly on surveillance, security, and technology.  The Snowden revelations have stirred quite a public debate about these topics and I thought at the time some of those people might be interested in my findings.  Moreover, I was also looking to see if anyone had a different point of view and or perspective I had not taken into consideration.  So I crafted a standard email and sent it with the paper that comprised Part 1 to as many people as I could find who were publicly discussing the intersection of security/surveillance.  Everyone, more or less got the exact same email.

Surprisingly I didn’t get a lot of responses but I measure success by the number of people who respond and the nature of their responses, not by the number of people who do not.  You miss 100% of the shots you don’t take is my perspective and my tactic was aim and shoot and repeat.  I also knew in my gut there was another paper to write, but I didn’t know what it was going to be about just yet and hoped by reaching out to the broader community that process would illuminate for me where I should focus my efforts.  Out of no less than a few hundred emails sent, I received around 10 responses and those particular responses mostly came from the progressive legal scholar community.  They mostly tried to pour cold water on my research.  I thought that data point was interesting, but I had also used Jack Balkin’s framework for what constitutes a democratic or authoritarian national surveillance state.  Jack Balkin is a famous Yale legal scholar, but in my emails I didn’t explicitly say I used his framework, only by opening and reading my paper would someone learn that.  So it was a little hard to surmise what truly sparked particular interest from that particular community in general.  Being the impatient person I am, I gave myself a few months to send out emails and collect feedback because the nature of surveillance/security revelations was ongoing and more people kept joining the public conversation.  I kept taking shots when the opportunity was there for no other reason than I could.

One particular person who initially responded on September 13th 2013 was Geoffrey Stone from the University of Chicago.  He initially declined to comment because he had just been chosen by President Obama to sit on the NSA Review panel with Cass Sunstein, Peter Swire, Michael Morrell, and Richard Clarke.  You can see a comprehensive outlook on their profiles here in Part 2.  I respectfully thanked him for responding and asked him if he would be able to comment after the review panels’ work and report were published.  He said he didn’t know but that I should reach back out at that time.  In December 2013 the NSA review report was released.  After digesting the report and the two conflicting court opinions on surveillance that were also released in December I reached back out to Mr. Stone and asked him the following question:

If the government cannot be responsible enough to hold this highly sensitive data, to what degree are you confident an “independent” agency can keep it sufficiently secure from theft and illicit use?

He responded:

  1. The telephone providers ALREADY have the data.
    2. Beyond the telephone meta-data, private companies have vastly more data about us than what’s involved in the 215 program.
    3. The primary constitutional concern is about government — not private — abuse. As the Framers understood, the government can do far more harm to us than private organizations or individuals. The concern here is not so much leaks of the information (although the government can prohibit that with a private provider as well as when it holds the data) but with misuse of the information.

I responded:

So effectively what the panel and Obama are suggesting is a Federal Reserve Bank of Citizen Data? Not quite private, not quite public which means it falls into constitutional gray areas?

Seems like it only transfers the political risks, all other risks remain the same.

Mr. Stone didn’t respond to that and I wrote him back 24 hours later with the following and copied via email the four other NSA Review panel members:

When technology and telco firms know more about people than the government does, it is inherent in the nature of governance to seek rebalance. Governments have traditionally had the monopoly on the majority of citizens information, but now that is not the case. What is readily apparent from the list in your last email is that you believe and the rest of your panel members believe too (since the report recommendations were unanimous in agreement), is that the government feels it is entitled to citizens information. Agree?

If the amalgamated data exists in the form your panel suggests, it cannot be guaranteed today nor in the future that it is sufficiently secure from theft and illicit use by anyone, Government or otherwise. Perhaps your other panel members can help and weigh in here. The only reason your report suggests and the president desires to move the program out of the hands of the NSA but still capture the data is transferring/dispersing political risk. Sure, let the DOJ for the next few months find an apparatus for a seemingly private entity that in one sense is government, but in the other it is not but it looks on the surface to be narrowly “Constitutional” to have blanket warrants on citizens information.

Do you and the panel agree that our digital lives and our physical lives should both share the same set of civil liberties? Remember, where people sit is where they stand. Thank you.

Best,

Chris

Again, neither Mr. Stone nor any of the other NSA Review Panel members responded. What could they say? So I wrote again 24 hours later:

Geoff et al,

I think it is important to revisit a previous point of our discussion regarding “positive rights” and “constitutional misinterpretations” as core threats the U.S. I take it on your lack of response/rebuttal and position as chief editor of the “inalienable rights” books series that you disagree or just don’t want to publicly acknowledge at this time that those are threats to the U.S. Perfectly fine. Where people sit is where they stand. Fortunately, we have Mr. Sunstein who has written prolifically on the topic and even attempted to defrost the notion of a second bill of rights that has been collecting freezer burn since FDR tried to start it in the New Deal days. While many of Mr. Sunstein’s ideas are novel, much like many of the ideas that come from the Center for American Progress, the implementation of those ideas is intellectually lazy because of the methods required to institute them. The methods are all laid out in a book I am sure you are familiar with “The Constitution in 2020”. The shocking thing is that the people/authors, some of you, are far from being intellectually lazy in my opinion.

The reason this is important? Jack Balkin’s essay within “the constitution in 2020” that is titled “ The Constitution in The National Surveillance State” does a tremendous job of providing a meaningful framework to understand our current predicament. In addition, he does a great job articulating how the information state is a natural extension of the social state because of the amount of information processing required to administrate social programs (Think Obamacare for instance). Balkin even goes so far as to articulate the differences between an authoritarian surveillance state vs a democratic surveillance state. The point is that you gentlemen and Obama feel entitled to all U.S. citizens data and all data of global citizens, even those within societies who are democratic or “free”. Guess which classification the U.S. currently falls in if using Balkins Framework? Can you guess which category the U.S. falls in after inserting Obama’s ideas form his speech on Friday?

Furthermore, Obama believes the collection should be ongoing and constant, but the government (Obama) cannot be trusted according to Obama’s speech on Friday and your panel’s report said the same insofar as trust. Obama Trying to reframe the debate from whether the information should be collected by the government or not to where the location the data should be held was a rookie sleight of hand attempt. The U.S. Government and National Surveillance has become and desires to continue being an information miser and everyone knows that over time governments will abuse this power. In this case the government will probably find ways of misinterpreting the constitution to institute positive rights for the people that are really only positive for the government, not the people because of the transfer of power. We also know the surveillance programs have had zero meaningful use in stopping any legitimate terrorist events.

The founding fathers put an intellectual bullet through the concept of tyranny by engineering the Constitution the way they did. That is its genius because it enables us a method to interpret novel ideas like “Positive Rights” and “misinterpretations” which are poised to do nothing but enhance the power of the government in insidious ways. Would you say that is a fair assessment? I am open to being persuaded otherwise if anyone wants to step in the ring. One would think at least one of you would have the stones to jump in, but perhaps prestige can only take a person so far.

Best, Chris

Here is the email dialog supporting the above discussion.  I didn’t get a response, but the experience did give me an idea and it also sufficiently proved to myself the NSA Review Panel, The President, Congress, nor the courts seem to have any real interest in protecting the rights of U.S. Citizens or global citizens for that matter….the U.S. government is only interested in its own security, not the security of the people. So I decided to expand my activism to test this group of legal scholars on what they think about their own ideas. Here is what I learned.

What do America’s top liberal legal scholars think about surveillance, governance, and their own ideas?

The Snowden revelations have caused what Bruce Ackerman from Yale law school describes as a “Constitutional Moment”.  Another liberal legal scholar, Jonathan Turley from George Washington University, has been outspoken about the utilization of executive authority and how the current and former administrations, congress, and courts (Madisonian Institutions) have in some instances abdicated their separation of power duties to create what he calls an “Imperial presidency”.  This is an educated, elegant, and hip way of saying “dictator”.

This imperial presidency notion by Turley is interesting because if we revisit Michael Glennon’s research on “National Security and Double Government”, we get a completely different picture of the real power of our elected officials and institutions.  The picture we get from Glennon’s research is that America’s National Surveillance Network (Trumanites) and bureaucratic institutions exercise real power and are the true source of government policy.  True policy bubbles up from the bureaucracies to the Madisonian institutions.  So what happens when the U.S. National Surveillance State is authoritarian and we have a president in executive authority that is authoritarian in nature too?

The second part to my question regards the addition of an “imperial presidency” to an authoritarian national surveillance system.  The question changes a little because the task is to understand if an alliance of mutual interest in ideology and policy exists between the authoritarian executive authority and the national security network of institutions.  If an alliance of mutual interest exists between the authoritarian executive authority and authoritarian national surveillance network, where do the ideas that support the particular ideology of the executive come from?

The bottom line from my research activities aimed at addressing this question, found this group of progressive legal scholars understand their ideas and methods for implementing them are illiberal. They also understand that public scrutiny of their ideas and methods is the fastest path to failure of implementation. Thus I personally took the progressive political handbook, “Rules for Radicals” and engaged those rules in applied research with these scholars. This process reaffirmed that they do not think highly of their own ideas, when they have to own up to them publicly. You can read about how I applied those rules here, but lets now explore what progressives think the Constitution’s first Amendment should do for U.S. citizens in the near future.

A Progressive Projection of The First Amendment

In February 2014 a group of liberal progressive legal scholars held a symposium on the First Amendment at Harvard Law School. The majority of these scholars are also contributors to the “Constitution in 2020”, which as previously noted is a liberal progressive movement to surreptitiously change the meaning of the U.S. Constitution. The stated purpose of the symposium according to the opening paper by Mark Tushnet is to explore the first amendment through the lens of general constitutional law.(12) It focuses on broad questions about the roles of courts and legislatures ranging from federalism (including preemption and the treaty power) to the state action doctrine.(13) It also brings to bear “realist” or political perspectives on how the Court’s doctrines might be shaped by the Justices’ policy preferences.(14)

In Tushnet’s opinion, those perspectives suggest that the Roberts Court’s probusiness tilt in First Amendment doctrine might conflict with the desires of global internet businesses.(15) In essence, Mark Tushnet and these legal scholars are taking the approach that they don’t like or agree with the first amendment and think that First Amendment scholarship has too much of a bias towards liking the First Amendment.(16) This point of view can be seen and heard explicitly in this video of Mr. Tushnet’s opening symposium speech.

Mr. Tushnet’s approach gives rhetorical and political cover to the essay contributors to evaluate and explore ways in which the U.S. government can restrict our First Amendment freedoms from multi-variable perspectives, while not actually acknowledging that is what these scholars are doing. Remember, this “Constitution in 2020” crowd believes that having candor in their motives is a major threat to their efforts. Lets now explore each symposium essay individually to understand its context in the framework that Mark Tushnet and progressives have provided.

Article Title: First Amendment Common Sense

http://cdn.harvardlawreview.org/wp-content/uploads/2014/06/vol127_crawford.pdf

Symposium Presentation Video (Starts around 22 minute mark):

https://www.youtube.com/watch?v=Oc9RfNY9-4I

Author: Susan Crawford

Author Profile:

http://hls.harvard.edu/faculty/directory/11154/Crawford/

John A. Reilly Visiting Professor in Intellectual Property at Harvard Law School, a Professor at Cardozo Law School, and a contributor to Bloomberg View and Wired. She served as Special Assistant to the President for Science, Technology, and Innovation Policy during 2009, co-led the FCC transition team between the Bush and Obama administrations, and was a member of Mayor Michael Bloomberg’s Advisory Council on Technology and Innovation.

Article Overview:

In Verizon v. FCC, high-speed Internet access provider Verizon asserted that the December 2010 Federal Communications Commission (FCC) Open Internet Rules were subject to heightened scrutiny under the First Amendment.(17) Verizon’s claim was that because it reserves the right to edit what users access across its high-speed Internet connections, any regulation (and thus, necessarily, any statute) limiting that discretion amounts to compelled speech. (18) (Verizon also claimed that it did not in fact carry out such editing.) The cable industry, for its part, has long maintained that when it is selling high-speed Internet access its activities are shielded by the First Amendment, and that any nondiscrimination obligation aimed at cable Internet access providers “would not only encroach upon but would obliterate the boundaries established by the First Amendment and would surely be subject to at least ‘heightened scrutiny’ by the courts.”(19) Commentators working with think tanks such as the Free State Foundation have said that they agree with the idea that private providers of Internet access services should enjoy the same First Amendment protection from government oversight, as do newspapers. (20)

This commentary is surprising.(21) Congress has for more than a hundred years had unquestioned authority to impose on private providers of general-purpose two-way communications lines a traditional, comprehensive, economic regulatory regime that protects innovation, speech, and national competitiveness by overseeing the activities of these providers, subject only to rational basis review by courts.(22) When the FCC acts pursuant to this congressional authority, it must comply with the Administrative Procedure Act (APA) and applicable statutory language. (23) But its regulatory activities in this arena have not in the past been thought to raise serious constitutional concerns under the First Amendment that would trigger heightened scrutiny. (24)

This Article views the providers’ First Amendment arguments in a broad framework of political power.(25) Verizon, speaking (effectively) for the entire high-speed Internet access sector, is seeking to grant greater influence to courts than legislators or regulators by raising constitutional questions about steps that Congress or the FCC may seek to take. (26) From this perspective, aggressive First Amendment arguments that trigger judicial concern are useful to Verizon and its brethren in undermining traditional deference to regulators and legislators. (27) But to apply a heightened First Amendment standard when a court is reviewing an ordinary economic regulatory program, merely because there may be some indirect effect on private speech caused by the challenged regulations, would return us to the Lochner era and sharply undermine congressional authority.(28)

The risk is that a court will someday take the providers’ First Amendment position seriously.(29) Today, the providers’ arguments would likely fail given the Court’s carefully reasoned (and unanimous) opinion in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR).(30) But the providers’ assertions have an interesting temporal dimension: although it seems almost unthinkable that a general-purpose high-speed Internet access provider — selling services that are the modern-day substitute for a telephone connection — would be considered to be “the same as” the New York Times for speech purposes, the network providers have the incentive to change the facts on the ground.(31) As providers of high-speed Internet access have gained market power in the absence of either competition or oversight, their abilities to selectively present digital communications to users and close their gates to content (or “edge”) providers unwilling to pay tribute to them have increased.(32) In the future, their exercise of these powers may arguably make them more like newspapers or the cable pay-television operators found to trigger heightened scrutiny in Turner Broadcasting System, Inc. v. FCC (Turner I) and less like a communications transport network subject to economic regulation.(33)

Because the consequences of the adoption of the providers’ arguments would be to make every congressional enactment in this area subject to a presumption of unconstitutionality, and to strip the FCC of the deference to which it is normally entitled, this is a critical time for courts and others to carefully and deliberately explain why the carriers are wrong.(34) For though the D.C. Circuit declined to address Verizon’s First Amendment claims in Verizon, the providers of high-speed Internet access in America will continue to make these assertions in every possible case and before Congress, repeating their claimed entitlement to heightened scrutiny until it becomes a mainstream argument.(35) On this battlefield, and given that legislators are now suggesting that a rewrite of the Telecommunications Act of 1996 is needed, the particular administrative classification the FCC has applied to the providers of high-speed Internet access is irrelevant, both now and in the future.(36) The sole question is whether the providers’ constitutional claims should be taken seriously.(37) This Article endeavors to provide a roadmap for the needed explanation as to why they should not be, by engaging with the doctrinal, policy, and normative dimensions of the providers’ assertions.(38)

Article Title: More Than A Feeling: Emotion and the First Amendment; “Resolving Discrepancies in the regulation of emotional expression”

http://cdn.harvardlawreview.org/wp-content/uploads/2014/06/vol127_r_tushnet.pdf

Symposium Presentation:

https://www.youtube.com/watch?v=BFC1t_We-1A

Author: Rebecca Tushnet (Daughter of Mark Tushnet)

Profile:

https://www.law.georgetown.edu/faculty/tushnet-rebecca-l.cfm

Professor Tushnet has taught at Georgetown since 2004.  Previously, she was on the faculty at New York University School of Law. She also has worked at Debevoise & Plimpton in Washington, D.C., where she
specialized in intellectual property. She clerked for Chief Judge Edward R. Becker of the Third Circuit Court of Appeals in Philadelphia and Associate Justice David H. Souter of the U.S. Supreme Court.

Professor Tushnet graduated from Harvard University in 1995 and from Yale Law School in 1998. At Yale, Professor Tushnet served as an articles editor for the Yale Law Journal and as an editor of the Yale Journal of Law and Feminism.  During her law school summers, she worked for the Center for Reproductive Law & Policy and for Bredhoff & Kaiser.

Article Overview:

New York Times Co. v. Sullivan remains a foundational case even as the First Amendment issues occupying the courts today have significantly changed.(39) Modern speech regulations can take many forms; the “new school” Jack Balkin identifies has supplemented, rather than replaced, the “old school.”(40) But the old school has also undergone some renovations.(41) Rather than governing the New York Times, many of today’s trickiest speech regulations target speakers who aren’t traditional publishers, which makes it easier to treat these regulations as fringe cases and to overlook some deep contradictions in current doctrines.(42)

Here, I wish to examine one aspect of Sullivan, which is its requirement of a false factual statement, and the relationship of the falsity requirement to ideas about harm and emotion.(43) Disparaging speech is usually harmful because it triggers negative emotions in the audience, causing other people to treat the victim differently.(44) First Amendment law has generally been leery of government attempts to change the marketplace of emotions — except when it has not been.(45) Scientific evidence indicates that emotion and rationality are not opposed, as the law often presumes, but rather inextricably linked.(46) There is no judgment, whether moral or otherwise, without emotions to guide our choices.(47) Judicial failure to grapple with this reality has produced some puzzles in the law.(48)

Part I of this Symposium contribution will examine the intersection of private law, the First Amendment, and attempts to manipulate and control emotions.(49) After Sullivan, statutes and common law rules that authorize one person to control too much of another person’s speech can violate the First Amendment.(50) Another key aspect of Sullivan is that only false factual statements can defame, not mere derogatory opinions.(51) Yet trademark law allows exactly the kind of control over nonfactual, emotional appeals that modern defamation law precludes.(52) These two bodies of law thus stand in contrast, one constrained by the First Amendment to cover only facts and the other allowed to reach much further into the dark heart of emotional manipulation.(53)

Part II turns to compelled speech, and again finds two contrasting regulations united by their emotional mechanisms, but divided by their constitutional fates.(54) Courts have struck down mandatory smoking warnings in visual form, but have approved mandatory abortion disclosures and ultrasound requirements that operate in the same emotional register.(55) Regardless of whether the regulation involves a direct government mandate or private parties claiming competing rights to influence the audience’s emotional state, then, current First Amendment law doesn’t have a consistent account of the proper role of emotion in speech regulation.(56)

Part III suggests that the contradictions of current doctrine could be ameliorated by less distrust of emotion and more acceptance that where information is being conveyed, emotion will regularly follow.(57) Our focus then should not be on whether deployment of emotion is “manipulative,” but whether it is part of a discriminatory or factually misleading regulation.(58) When the government regulates speech, the regulation will generally have an emotional component because human thought is emotional.(59) Objections to emotion-based regulations should not be based on the obviousness of that component.(60) Rather, the acceptability of the government’s aim should be the guide, especially when nongovernmental speakers are free to use emotional appeals to press their own cases.(61) The government may be required to be neutral as between classes of private speakers, which Sullivan requires and which I will argue should be the case with respect to trademark law.(62) It is not required to be neutered.(63) When the government can otherwise constitutionally mandate disclosure, the fact that these disclosures have emotional resonance is not an independent constitutional barrier.(64)

Article Title: Press Exceptionalism “How to Identify the Press and its protections”

http://cdn.harvardlawreview.org/wp-content/uploads/2014/06/vol127_west.pdf

Symposium Presentation:

https://www.youtube.com/watch?v=rzL0CLH4pwQ

Author: Sonja West

Profile:

http://www.law.uga.edu/profile/sonja-r-west

Sonja R. West joined the University of Georgia School of Law in the fall of 2006. She specializes in constitutional law, media law and the U.S. Supreme Court.

Prior to joining the Georgia Law faculty, West taught as the Hugo Black Faculty Fellow at the University of Alabama School of Law. She has also served as a judicial clerk for U.S. Supreme Court Justice John Paul Stevens and Judge Dorothy W. Nelson of the U.S. Court of Appeals for the 9th Circuit. Her other professional experience includes several years as an associate attorney for the Los Angeles law firms Gibson, Dunn & Crutcher and Davis Wright Tremaine, where she represented media clients on a variety of First Amendment and intellectual property issues at the trial and appellate levels

Article Overview:

The Occupy Wall Street movement was one of the largest grassroots political demonstrations in American history.(65) The protests raised issues about government policies and social structures that sparked debate nationwide.(66) Treatment of the demonstrators by public officials garnered scrutiny too, as did the tactics of the protestors, which some alleged included unlawful conduct.(67)

Yet despite the high level of newsworthiness, many reporters who attempted to cover the protests faced significant roadblocks.(68) Some were denied access to protest sites.(69) Others were arrested, even when they could and did display press credentials.(70) Airspace was blocked to prevent filming from news helicopters.(71) This shabby treatment of journalists led to condemnation by press organizations and caused the United States’s ranking on the Reporters Without Borders’ Press Freedom Index to drop sharply, from twentieth to forty-seventh place.(72)

The experiences of the reporters covering the Occupy protests reflect a broader reality about journalism: on a day-to-day basis, American journalists deal with legal uncertainties in the pursuit of news.(73) There are difficulties of access to property (sometimes even public property), information, and government meetings.(74) Journalists have uncertain protections against subpoenas and face frequent government demands that they testify about what they have learned while gathering news or that they reveal the identities of confidential sources.(75) Reporters’ notes, photographs, emails, drafts, and video outtakes are potentially subject to search by law enforcement.(76) Members of the press also face risks of criminal or tort liability if they engage in undercover reporting or reveal leaked information.(77)

The underlying problem journalists face is that they are treated by the law as being no different than the subjects they are covering or, perhaps, mere curious bystanders.(78) For constitutional purposes at least, it is entirely irrelevant to courts whether the speakers are members of the press or whether they are actively pursuing the news.(79)

To be sure, once journalists publish or broadcast a story, their speech — like everyone’s speech — enjoys powerful First Amendment protections.(80) Journalists are shielded — again, as is everyone — from prior restraints and content-based censorship of their messages.(81) But when it comes to recognizing the special role of reporters as watchdogs and conduits of information for the citizenry as a whole, the Supreme Court has taken a hands-off approach.(82)

One of the primary reasons for this failure to distinguish between constitutional protections for speech and the press is the problem of identification.(83) In order to recognize unique press protections, the Court must figure out who or what the press is.(84) The Occupy protests again illustrate the problem.(85) Among the crowds at these demonstrations were many people utilizing their constitutional speech rights in ways that might seem “press-like.”(86) An office worker on his way to lunch might see a traffic backup caused by the protestors and use his smartphone to tweet a message to his followers warning them to avoid the area.(87) A cable comedy show might send a “correspondent” to the site to interview protestors and poke fun at some of the colorful participants.(88) A newly graduated journalism student could decide to write an article about the protests with the hope of getting her first publication as a freelance writer.(89) Then there are the bloggers.(90) Some bloggers might post regularly about related issues and thus be attempting to gather information for their established readership whereas others might be offering unrelated content on an inconsistent basis to an unproven audience.(91)

This all raises some important questions: Are these speakers the press?(92) Are all of them or only some of them?(93) And does the difficulty of answering this question confine us to a reading of the First Amendment that gives no meaning to the Press Clause that reaches beyond the Speech Clause?(94)

This Article advances the principle of press exceptionalism — that there exist certain speakers who fulfill unique roles in our democracy.(95) These press speakers devote time, resources, and expertise to the vital constitutional tasks of informing the public on newsworthy matters and providing a check on the government and the powerful.(96) We must recognize these speakers in order to consider and potentially protect their specific needs.(97) A continuing refusal to do so, moreover, comes with risks.(98) These risks include not only a failure to fulfill the promises of the First Amendment, but also widespread societal costs arising out of reduced information flow and weakened government scrutiny.(99)

The challenge, however, is that there are also numerous other speakers who use their speech rights in ways that at times appear to be “press-like.”(100) I refer to these speakers as “occasional public commentators.”(101) Aided increasingly by advances in communication technology, occasional public commentators share information and ideas about matters of public interest to a potentially broad audience in a timely manner — the very activities that were once considered the exclusive province of the press.(102) Because viewing occasional public commentators as press speakers comes with constitutional costs, as I explained in a prior article, it is desirable to distinguish between the two groups.(103) Therefore, I seek to establish a theoretically sound and practically workable methodology for identifying and distinguishing these two types of speakers.(104)

Drawing on past attempts to identify the press and also using the Supreme Court’s recent discussion of who is and who is not a “minister” for the purposes of the Religion Clauses of the First Amendment as a model, I suggest that courts should take a holistic approach to finding the press.(105) This approach could include relying on the cues of third parties and public institutions as proxies, as well as considering the speaker’s track record of publication and audience to determine which speakers are best fulfilling the press functions.(106)

I develop these ideas in three parts.(107) Part I explores who are members of the press for First Amendment purposes, what they do, and why it matters that they be identified.(108) Part II then considers how changing technology has impacted the search for the press, concluding that, rather than defeating the effort, it has helped to focus it and to alleviate concerns of elitism.(109) Finally, Part III combines past efforts by others to identify the press with insights from the Court’s recent discussion on how to determine who is a “minister” for the purposes of the Religion Clauses of the First Amendment to offer a usable beginning framework in our search for the press.(110)

Article Title: The “New” New York Times: Free Speech Lawyering in the Times of Google and Twitter

http://cdn.harvardlawreview.org/wp-content/uploads/2014/06/vol127_Ammori.pdf

Symposium Presentation:

https://www.youtube.com/watch?v=hLY21DcZGkw

Author: Marvin Ammori

Profile:

http://cyberlaw.stanford.edu/about/people/marvin-ammori

Marvin Ammori is a leading First Amendment lawyer and Internet policy expert. He was instrumental to the adoption of network neutrality rules in the US and abroad–having been perhaps the nation’s leading legal advocate advancing network neutrality–and also instrumental to the defeat of the SOPA and PIPA copyright/censorship bills.

He is a Legal Fellow with the New America Foundation Open Technology Initiative and an Affiliate Scholar at Stanford Law School’s Center for Internet & Society. He also heads a law firm and consulting practice, the Ammori Group, whose clients include leading Internet companies and nonprofit organizations.

Article Overview:

When Ben Lee was at Columbia Law School in the 1990s, he spent three months as a summer associate at the law firm then known as Lord, Day & Lord, which had represented the New York Times in New York Times Co. v. Sullivan.(111) During those months, Lee listened to the firm’s elder partners recount gripping tales of the Sullivan era and depict their role in the epic speech battles that shaped the future of free expression.(112) Hearing these stories, a young Lee dreamed that one day he too would participate in the country’s leading speech battles and have a hand in writing the next chapter in freedom of expression.(113)

When Ammori met with Lee in August 2013, forty-nine years after Sullivan, he was working on freedom of expression as the top lawyer at Twitter.(114) Twitter and other Internet platforms have been heralded for creating the “new media,” what Professor Yochai Benkler calls the “networked public sphere,” for enabling billions around the world to publish and read instantly, prompting a world where anyone — you and I included — can be the media simply by breaking, recounting, or spreading news and commentary.(115) Today, freedom of the press means freedom not just for an institutional press but freedom for all of us.(116) The core business functions of Twitter, YouTube, and other platforms turn on expression — no less than the New York Times’s.(117) The lawyers working for these companies have business reasons for supporting free expression.(118) Indeed, all of these companies talk about their businesses in the language of free speech.(119) Google’s official mission is “to organize the world’s information and make it universally accessible and useful.”(120)

WordPress.com’s corporate mission is to “democrati[z]e publishing.”(121) Facebook’s is to “give people the power to share and make the world more open and connected.”(122) Perhaps even more than other Internet platforms, Twitter thinks of itself as a medium for free speech: its former general counsel calls Twitter “the free speech wing of the free speech party,” its CEO calls it the “global town square,” its cofounder set out as a default principle against blocking speech that “[t]he [t]weets [m]ust [f]low,” and the company instituted a “church-state divide” reminiscent of newspapers separating employees engaged in content from those selling advertising.(123) Lee told Ammori, “I don’t know what others think with the phrase ‘town square,’ but I think about free expression cases.”(124)

Had Lee been born fifty years earlier, his dream of influencing the future of free speech likely would have inspired him to take a job representing the New York Times or some other leading newspaper at a law firm like Lord Day.(125) Instead, being born to a different time, Lee followed his dream by first taking a job working on free expression at Google, a company with 100 times the market cap of the New York Times and arguably 100 times the influence.(126) While at Google, he worked on free expression alongside other well-known free speech lawyers, including Alex Macgillivray and Nicole Wong, whose influence has been documented in major news profiles.(127) These lawyers must address difficult and novel cases concerning the speech of hundreds of millions of users.(128) They have grappled with these questions on everything from the Occupy Wall Street movement to the publication of WikiLeaks.(129) They have navigated issues from UK local law enforcement measures to Chinese state censorship.(130) These lawyers have earned lots of praise with reporters hoping their practices would become the “industry standard” and claiming that Twitter “beta-tested a spine.”(131) Many reporters credited Twitter’s actions to its speech lawyers.(132) Professor Jeffrey Rosen opined that Google’s lawyers and executives “exercise far more power over speech than does the [U.S.] Supreme Court” and called an administrative law case (that Ammori worked on) involving the blocking of Internet speech “a model for the free-speech battles of the future.”(133)

Whether or not Rosen is right that Google lawyers somehow outrank Chief Justice John Roberts, no one should doubt that lawyers like Lee are shaping the future of free expression worldwide.(134) While they have been criticized for some of their decisions, the lawyers at companies like Google and Twitter are reminiscent of newspaper lawyers of old in their conscious thinking about and focus on freedom of expression.(135) Their companies are not perfect, just as the New York Times is not perfect.(136) Fifty-years from now, though, we will remember these lawyers and their impact on how millions of people experience freedom of expression.(137) And their paradigmatic decisions already have played significant roles in some of the most important freedom of expression episodes in modern times, including the leaking of classified documents to WikiLeaks and The Guardian, the sharing of anti-Islamic videos on YouTube, and the legislative debate over telecommunications and copyright rules such as “network neutrality” and “SOPA.”(138)

This Primary thesis of Ammori’s essay is that some of the most important First Amendment lawyering today is happening at top technology companies.(139) If the decisions of these lawyers and their companies further freedom of expression, decades from now we may be celebrating them as we celebrate those who handled Sullivan.(140) This Article relies on interviews and discussions with many of the top lawyers at these companies to reveal some of the striking influences shaping our digital-speech environment.(141) While First Amendment lawyers at leading technology companies must of course reckon with decisions of the U.S. Supreme Court — and these decisions may shape these lawyers’ mental frameworks — they must also contend with their own corporate and community objectives, with extremely important speech rules promulgated by acts of Congress, and with the laws and traditions of foreign nations that govern so many of their users.(142) A First Amendment practice thrives in the offices of Silicon Valley as it does in the offices of the world’s leading newspapers and organs of opinion.(143) In order to fully understand it, however, we need to look not only to judicial opinions but also to legal sources that many might consider nontraditional.(144)

Article Title: Old School/New School Speech Regulation: Governments Develop New Techniques for Controlling and Surveilling Speech

http://cdn.harvardlawreview.org/wp-content/uploads/2014/06/vol127_balkin.pdf

Symposium Presentation:

https://www.youtube.com/watch?v=IqZ-DlFjhsg

Author: Jack Balkin

Profile:

http://www.law.yale.edu/faculty/JBalkin.htm

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School and the founder and director of Yale’s Information Society Project, an interdisciplinary center that studies law and new information technologies, as well as the director of the Knight Law and Media Program and the Abrams Institute for Free Expression at Yale. Professor Balkin received his Ph.D. in philosophy from Cambridge University, and his A.B. and J.D. degrees from Harvard University. He is a member of the American Academy of Arts and Sciences.

Article Overview:

New York Times Co. v. Sullivan and New York Times Co. v. United States (Pentagon Papers) are two famous examples of a great flowering of First Amendment jurisprudence during the middle of the twentieth century.(146) The philosopher Alexander Meiklejohn declared Sullivan to be “an occasion for dancing in the streets.”(147) Sullivan recognized that “the central meaning of the First Amendment” was that the state could not punish criticism of public officials made without malice either directly through the criminal law or indirectly through civil damages for defamation.(148) Pentagon Papers reaffirmed the central First Amendment principle against prior restraints; Justice Stewart’s concurring opinion added that the government could not suppress disclosure of sensitive information unless the disclosure would “surely result in direct, immediate, and irreparable damage to our Nation or its people.”(149) Together these two decisions celebrated the crucial role of the press in a democratic society, and stood for the principle that the circulation of public discourse is crucial to democratic legitimacy.(150) Half a century later, the impact of these two decisions has been weakened by significant changes in the practices and technologies of free expression, changes that concern a revolution in the infrastructure of free expression.(151) That infrastructure, largely held in private hands, is the central battleground over free speech in the digital era.(152)

Government practices have also changed in the past fifty years.(153) To be sure, governments still regulate speech through fines, criminal penalties, and injunctions; they still engage in predigital practices of surveillance.(154) But new techniques have supplemented traditional modes of control over speech and traditional modes of surveillance.(155) Like speech itself, the regulation and surveillance of speech require an infrastructure. (156) Increasingly, speech regulation and surveillance are technologically imposed and involve cooperation between governments and the private entities that control the infrastructure of free expression.(157)

Thus, a significant feature of the early twenty-first century is that the infrastructure of free expression increasingly is merging with the infrastructure of speech regulation and the infrastructure of public and private surveillance.(158) The technologies and associated institutions and practices that people rely on to communicate with each other are the same technologies and associated institutions and practices that governments employ for speech regulation and surveillance.(159)

Consider a mid-twentieth-century newspaper like the petitioner in New York Times Co. v. Sullivan.(160) To reach its audience, the Times depended on an infrastructure of technologies and institutions: printing presses, labor unions, delivery trucks, newsstands, and advertisers.(161) These features of the Times’s business may have been regulated by the government in various ways — in trucking regulations, labor law, and so on.(162) But for the most part the government’s capacities for control and surveillance of speech were not built into the very technologies and practices that the Times used to communicate with its audience.(163) The government did not have a long-distance switch that allowed it silently and inexpensively to control the Times’s printing presses or prevent certain articles from appearing in its pages. (164) The government did not require that members of labor unions operating the Times’s printing presses wear hidden microphones and cameras so that the government could learn about any potentially subversive or infringing materials.(165) That is why it was necessary for the government to seek an injunction in the Pentagon Papers case.(166) Of course, the government did control the public streets.(167) Arguably it could have created roadblocks throughout New York City to search for and stop the Times’s delivery trucks, but this would have been highly visible, logistically difficult, and costly in terms of legitimacy.(167)

The digital era is different.(168) Governments can target for control or surveillance many different aspects of the digital infrastructure that people use to communicate: telecommunications and broadband companies, web-hosting services, domain name registrars, search engines, social media platforms, payment systems, and advertisers.(169) The very forces that have democratized and decentralized the production and transmission of information in the digital era have also led to new techniques and tools of speech regulation and surveillance that use the same infrastructure.(170) These tools of regulation and surveillance often work automatically and in the background; they may harness the cooperation or coercion of private owners of infrastructure to achieve the government’s regulatory goals.(171) Low salience and use of private parties can help governments preserve legitimacy even as their policies block, limit, or spy on expression.(172) This is the big story about the freedoms of speech, press, and association in the digital age.(173)

Traditional or “old-school” techniques of speech regulation have generally employed criminal penalties, civil damages, and injunctions to regulate individual speakers and publishers.(174) The landmark decisions in Sullivan and Pentagon Papers responded to old-school speech regulation: in both cases, the state had used penalties and injunctions directed at speakers and publishers in order to control and discipline their speech.(175)

These methods have hardly disappeared in the twenty-first century.(176) But now they are joined by “new-school” techniques of speech regulation.(177) The latter regulate speech through control over digital networks and auxiliary services like search engines, payment systems, and advertisers; instead of focusing directly on publishers and speakers, they are aimed at the owners of digital infrastructure.(178)

These new-school techniques have three characteristic features that often operate together. None of these features is entirely new.(179) Each has counterparts or precedents in the predigital world, but each has been reshaped to fit the demands of a new technological environment.(180)

The first feature is collateral censorship, in which the state regulates party A in order to control speaker B.(181) The digital age enables a vast number of people to communicate widely across the country and around the world.(182) Because there are so many speakers, who are often anonymous, difficult to co-opt, or otherwise beyond the government’s effective control, the state aims at Internet intermediaries and other owners of digital infrastructure — threatening liability to induce them to block, limit, or censor speech by other parties.(183)

Second, and relatedly, public/private cooperation and co-optation are hallmarks of new-school speech regulation.(184) To the extent that the government does not own the infrastructure of free expression, it needs to coerce or co-opt private owners to assist in speech regulation and surveillance — to help the state identify speakers and sites that the government seeks to watch, regulate, or shut down.(185) To this end, the government may offer a combination of carrots and sticks, including legal immunity for assisting the government’s efforts at surveillance and control.(186) Owners of private infrastructure, hoping to reduce legal uncertainty and to ensure an uncomplicated business environment, often have incentives to be helpful even without direct government threats.(187)

Third, governments have devised new forms of digital prior restraint.(188) Many new-school techniques of speech regulation have effects similar to prior restraints, even though they may not involve traditional licensing schemes or judicial injunctions.(189) In addition, prior restraints are especially important to the government’s expansive surveillance practices in the National Surveillance State. (190) As Balkin explains in Part III of his essay, prior restraints directed at owners of private infrastructure are now ubiquitous in the United States; gag orders have become fully normalized and bureaucratized elements of digital surveillance, as routine as they are invisible.(191)

First Amendment Scholarship and Doctrine From an Interest Group Point of View

This portion of Mr. Tushnet’s essay examines First Amendment scholarship an doctrine with reference to the incentives and background thinking that underlie its production.(192) Section A develops an argument that these incentives lead to something like agency capture as it occurs in other domains: the phenomenon of “liking” the First Amendment arises from the structural fact that advocates of specific regulations limiting expression are scholars only of their specific regulatory domains and so are less well tutored in First Amendment Doctrine than are scholars whose focus is the First Amendment itself.(193) Section B suggests that thinking about the First Amendment as a distinct subject matter systematically undervalues the interests supporting regulation of expression according to Tushnet.(194)

A. “Liking” The First Amendment: The Possibility of Capture

First Amendment scholarship, it seems to Mr. Tushnet, differs from scholarship on other relatively discrete constitutional topics.(195) Scholars of the First Amendment seem to “like” the Amendment, whereas scholars of the Second or Fourth Amendment do not necessarily like their Amendment.(196) Of course one has to like a subject to which one devotes a great deal of attention, but that is not the same as “liking” the First (or Second, or any other) Amendment.(197) What Tushnet means by “liking” the First Amendment is something like this: A First Amendment scholar hears that a court has held that some local ordinance or state statute violates the First Amendment, and his or her initial thought is that that decision is presumptively correct.(198) The presumption is more than a bubble ready to burst as soon as an iota of information arrives suggesting that the decision might have been mistaken.(199) Rather, the presumption has some weight in the scholars assessment of the decision: moderately strong reasons must be offered to explain why the decision was wrong.(200)

Of course some scholars of the Second and Fourth Amendments like their Amendment in the same sense.(201) But, Mr. Tushnet believes, a fair number of such scholars do not like their Amendment at all and think that the Constitution would be better on balance without it.(202) The Structure of scholarship in these fields differs from that in the First Amendment area.(203) The reason is that the Second and Fourth Amendments are basically dichotomized: a scholar can be “pro-gun rights” or “pro-gun control,” or “pro-privacy” or “pro-security/pro-police.”(204) First Amendment scholarship, in contrast, is pluralist – but only on the side of regulation.(205) Some advocates of consumer protection seek forced disclosures or restrictions on the dissemination of consumer information and develop arguments why those regulations are consistent with the First Amendment.(206) Some feminists seek regulation of sexually explicit material that does not qualify as obscene under the Supreme Court’s definition and develop why those regulations are consistent with the First Amendment.(207) Some pro-choice advocates seek restrictions on pro-life advocacy in close proximity to sites where abortions are provided, and do the same.(208) Copyright is dichotomized between content producers, who do not like First Amendment restrictions on copyright, and content disseminators, who do.(209)

Additionally, the structure of the pro-regulatory arguments differs from area to area.(210) So, for example, some arguments assert that First Amendment doctrine should take into account the fact that some regulatory proposals place constitutional rights of one sort – privacy, or choice with respect to abortion, or equality – against rights of expression.(211) Other arguments defend either a categorical or a general balancing approach to the First Amendment, even when, as in many consumer protection settings, one cannot claim that the regulation seeks to advance some constitutionally protected right. (212)

The various arguments are met on the other side with unified advocacy of First Amendment protections. (213) We are familiar with one situation in which a unified interest faces diverse opposing ones.(214) The setting is “agency capture” in administrative law.(215) If interested in exploring further the history and dangers of Administrative Law, you can do so here. Agency capture occurs when an agency’s jurisdiction extends to a single industry, railroads being the classic example.(216) The interest groups opposing railroads are diverse: consumers, farmers, shippers of manufactured goods, and trucking companies.(217) A specific proposed regulation will promote the interests of one of these many groups at the expense of railroads, but he unaffected groups will be different about it. (218) Structurally, we can expect the railroads’ interest to prevail, at least in the proposed regulations will generally be watered down as they work their way through the agency.(219) The reason is that the railroads

B. The First Amendment as a Distinct Field

First Amendment scholarship has another feature, so obvious that it is likely to be overlooked.(220) First Amendment Scholarship is just that – scholarship about the First Amendment.(221) This could be otherwise, and historically were according to Mark Tushnet.(222) We could have scholarship about constitutional law that treats First Amendment as a point of focus, as we did when the First Amendment was simply one topic in a general constitutional law course.(223) The shift from treating the first amendment as merely one part of a general constitutional law to treating it as a separate field of scholarship has two effects Tushnet discusses: that First Amendment scholarship and doctrine tend to overlook the possibility of a generalized skepticism about judicial review and that scholarship and doctrine tend systematically to undervalue governmental interests in regulating speech.(224) Section 1 uses Justice Breyer’s opinion in United States v. Alvarez to illustrate why skepticism about judicial review might sometimes be well placed.(225) Section 2 uses Jack Balkin’s article as an example of the undervaluation of regulatory interests.(226)

  1. The Possibility of General Skepticism About Judicial Review

Though it can range more widely, scholarship about general constitutional law tends to focus on the justifications we might have for allowing courts to displace judgments made by elected institutions, which are directly responsive to the public.(227) First Amendment scholarship and doctrine then take those justifications as given and seek to develop appropriate doctrine.(228) First Amendment scholars sometimes focus on how the protection of expression serves interests in individual autonomy, without grappling with the difficulties associated with grounding constitutional rights in autonomy.(229) More often they nod in the direction of Carolene Products, connecting the First amendment to ideas about democratic representation but here too without much concern about working out such a theory in detail.(230) This inattention leads to a tendency within First Amendment scholarship and doctrine to disregard the possibility of a generalized skepticism about judicial review.(231)

Consider for example Justice Breyer’s arguments in Alvarez, concurring with the plurality’s determination that the Stolen Valor Act of 2005 was inconsistent with the First Amendment.(232) The Act made it a federal for a person to state falsely that he or she had received a military honor.(233) The government argued that the Act was a permissible means of preserving the reputation of those who actually did receive such honors; allowing others to make false assertions that they too had received the honors would have tarnished that reputation.(234) Justice Breyer rejected that argument. (235) He began by stating his general approach.(236) Judges should “examine the fit between statutory ends and means” and “determine whether the statute works speech-related harm that is out of proportion to its justifications.” (237) He observed that existing prohibitions on the dissemination of false statements were limited to circumstances where “specific harm is …especially likely to occur.”(238) Actions that “dilute the value of awards” might count as specific harm.(239) But, Justice Breyer continued, “it should be possible significantly to diminish or eliminate risks from ‘ breadth of coverage’ by enacting a similar but more finely tailored statute,” such as one that distinguished among military awards.(240) This was simply Justice Breyer’s assessment of that possibility, without any weight given to the fact that Congress might have assessed the probabilities differently.(241)

Justice Breyer’s opinion is a robust assertion of a judge’s power to assess legislation in light of the Constitution independent of any possible congressional judgment.(242) As such, it exemplifies the modern tradition of constitutional review, rejecting an older one articulated in 1893 by James Bradley Thayer in “The Origin and Scope of the American Doctrine of Constitutional Law.”(243) There Thayer offered a broadly skeptical view of judicial review, arguing that courts should find legislation unconstitutional only when the unconstitutionality is “so clear that it is not open to rational question.”(243) We can find Thayerians whose skepticism about judicial review leads them to support a quite deferential judicial approach to questions of federalism, separation of powers, and Second Amendment, and almost everything else – except the First Amendment.(244) First Amendment Thayerians are hard to come by.(245) One reason for their absence may be that scholars of the First Amendment implicitly believe that some of the justifications for judicial review are unassailable with respect to all First Amendment issues.(246) What Mark Tushnet finds striking, though, is a significant lack of attention given to the justification for regulation.(247) This is in part an undervaluation of the substantive reasons for regulation but in more substantial part, an absence of serious grappling with the fact that the regulations are the product of a democratic process.(248)

  1. Undervaluing Regulatory Interests

On one available reading, Jack Balkin’s discussion in his symposium article here of what he calls the National Surveillance State can be taken as an example.(249) As he has described it elsewhere, “In the National Surveillance State, the government uses surveillance, data collection….. and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services.”(250) Though Jack Balkin says relatively little in his essay about the last of these functions; one of those services is national security. (251) Many of the programs he discusses aim to further national security.(252) And, it deserves emphasizing, all of these programs are authorized by statutes implemented by an executive branch whose actions are themselves supervised by the courts. (253) So someone assessing the programs’ constitutionality might ask, either from a citizen’s perspective or from that of a person seeking a predicate for an argument that courts should evaluate constitutionality, what significance legislative authorization and judicial endorsement have.(254)

At times the answer appears to be: no significance whatever.(255) That answer, it seems to Mr. Tushnet, flows from the characterization of the National Surveillance State as an actor in itself.(256) That characterization occurs in the course of a discussion of the Obama Administration’s attempt to discover the sources of leaks about antiterror programs.(257)

Mr. Tushnet writes that perhaps the implicit theory about the constitutionality of the National Surveillance State’s programs is an Ely-like one.(258) Some who study authoritarian regimes have developed the idea of a “Deep State,” an organization or network of people whose decisions actually determine the course of public policy notwithstanding purported supervision by democratically accountable executives and legislatures.(259) Mr. Tushnet writes that the National Surveillance State might be like that.(260) True, Congress enacted the statutes that the agencies of the National Surveillance State invoke when their activities are challenged.(261) And True, Congress has set up procedures for oversight of the statues’ implementation, which include the transmittal of information from the agencies to Congress and the courts. (262) But the argument would go, the oversight mechanisms are inherently flawed because of the secrecy surrounding the National Surveillance State’s activities.(263) Neither Congress nor the courts can know what they don’t know – Donald Rumsfeld’s uknown known unknowns.(264) So, when the National Surveillance State’s activities come to light, through leaks or otherwise, their justification cannot always rest on authorization from the people and their representatives according to Tushnet.(265) The predicate for a Thayerian approach to the National Surveillance State is absent.(266) Conversely, the inadequacies of the political process with respect to the actions taken in secret and not subject to oversight justify courts and citizens in assessing the rationales for the actions directly, without referring to the actions (often nonexistent) democratic pedigree.(267)

Perhaps so according to Tushnet, but the foregoing arguments rest on empirical claims about the adequacy of authorization and oversight.(268) And, at least as far we know now, the mechanisms Congress set up for overseeing the National Surveillance State’s actions have been used: key members of Congress have been fully briefed about the programs and courts have been informed about them, requiring modifications where, in the courts’ view, the National Surveillance State exceeded is statutory mandate.(269) Perhaps the members of Congress behaved irresponsibly after being briefed, although Tushnet doubts that, standing alone, such behavior can count as a kind of systemic failure of the political process necessary to justify disregard of a programs democratic warrant in his opinion.(270) And perhaps the oversight mechanisms were designed badly – but then the target of constitutional concern should be not the National Surveillance State’s activities, but he statutory oversight mechanisms according to Tushnet.(271) The secrecy of the National Surveillance State’s activities seems to Tushnet to have nothing to do with the latter question.(272) This suggests, in turn according to Tushnet, that no defect in the political process justifying the abandonment of the Thayerian stance has been identified.(272)

Mr. Tushnet thinks that perhaps the National Surveillance State is so “Deep” that we cannot know whether legislators can now enough to regulate it.(273) That would be a situation, according to Tushnet, where paranoid fantasies happen to be true.(274) No institutions can deal with such situations, thus according to Tushnet, First Amendment Scholarship would profit from a more systematic engagement with general constitutional theory, and especially with the Thayerian Tradition.(275)

  1. Is the First Amendment Business Friendly?

Shortly after the Supreme Court held that the First Amendment covered commercial speech, Professors Thomas Jackson and John Jeffries accurately foresaw that the First Amendment would become this generation’s version of economic due process, a constitutional right restricting the ability of legislatures to regulate business practices.(276) In this part, Tushnet pursues Jackson and Jeffries’s insight into the Internet era.(277) After elaborating in Section A the proposition that the First Amendment has become business friendly in general, Tushnet argues in Section B that the First Amendment might come to tilt against Internet businesses operating on a global scale: those businesses might prefer to trade off some protections afforded them by the U.S. regime of protecting free expression to get access to markets in nations that regulate speech more extensively.(278)

A. How is the First Amendment Business Friendly?

Tushnet writes that the First Amendment covers all businesses but only with respect to those of their activities that can be described as expressive.(279) So, for example, cigarette makers receive constitutional protection for some of their advertising activities, and pharmacies that combine pharmaceuticals, nominally to tailor drugs to individual patients, receive similar protection when they advertise the general availability of compounded drugs.(280)

Coverage does not mean protection.(281) Whether covered material is protected turns on whether the government lacks sufficient justification for its regulation.(282) The Supreme Court has recently come to require that regulations serving even important goals must do a substantially better job at promoting those goals than other, almost-as-good regulations that have a smaller impact on covered speech.(283) As an example, the Court has held that the First Amendment protects the activities of a company that mines publicly available data about physicians’ practices in prescribing specific medications and then compiles that data in a way especially useful to pharmaceutical manufacturers seeking to locate doctors who might be persuaded to sell more expensive, rather than less expensive, medications.(284)

All this matters for two reasons according to Tushnet.(285) First, he suggests much of the modern law of commercial speech has become disconnected from general constitutional law and its focus on the justifications for overturning legislation.(286) The court relies on its own assessment of how well the regulation serves important goals, giving essentially no weight to the legislature’s apparent determination that its regulation was as narrowly tailored as it could be, given the legislature’s sometimes complex goals.(287) Second, and perhaps more important, Tushnet suggests this is why denying protection to much commercial speech is compatible with the core idea that the First Amendment quite strongly protects the activities of businesses whose primary purpose is the dissemination of information.(288)

New York Times Co. v. Sullivan, after all did involve a business.(289) How does it differ according to Tushnet from Verizon, the subject of Susan Crawford’s detailed case study? Verizon has invoked the First Amendment against efforts to ensure that information producers have equal access to the Internet’s channels of information dissemination.(290) But, Tushnet suggests, though with some diffidence, the difference lies in the business models of the New York Times and Verizon.(291) One reading of the New York Times Co. v. Sullivan is that the Court believed it was essential to provide strong protections for the dissemination of falsehoods that damaged reputation to ensure that businesses and individuals would continue to engage in information dissemination.(292) That is the “chilling effect” at the heart of Justice Brennan’s analysis.(293) In contrast, perhaps, requiring that Verizon use an “equal access” business model will have only modest effects on Verizon’s bottom line and will not deter it from continuing to disseminate information.(294)

Verizon’s case has some plausibility, whether it prevails or not, because the First Amendment has become friendly to businesses generally, not simply to businesses for whom strong First Amendment protection is arguably integral to the business model.(295) In her essay, Rebecca Tushnet describes the courts’ inconsistent treatment of “emotion” as a component of First Amendment analysis, but a cynic might suggest that there is a nondoctrinal consistency in the court’s actions: the courts say that emotion matters when taking it into account allows them to find a regulation of business activities unconstitutional under the First Amendment but doesn’t matter when regulation of nonbusinesses is a at stake.(296) Trademark cases typically involve conflicts between businesses, but as Rebecca Tushnet suggests in her essay, trademark rules “discriminate in favor of the already powerful,” that is, in favor of big business and against small ones.(297) For two generations, then, the First Amendment has been business friendly and might not remain so according to Mark Tushnet.

B. Why Might the First Amendment Become Less Business Friendly in the Internet Era?

While the First Amendment has become business friendly, Marvin Ammori’s interviews with general counsels of “new media” companies suggest that might change in Tushnet’s view.(298) Ammori shows that “new media” companies see the First Amendment as “a local ordinance,” akin to a regulation adopted by a city council or state legislature.(299) The reason is that these companies operate in a necessarily international environment, and their financial returns come only in part from their operation within the United States.(300) “New Media” companies of this sort are likely to seek implementation of a consistent regulatory regime, and that regime might conflict with the First Amendment as interpreted by the U.S. Supreme Court in connection with purely domestic regulations.(301)

The analogy here is to corporations operating on a national scale within the United States.(302) Such corporations sometimes face a plethora of regulations emanating from city councils and state legislatures.(303) Complying with such a wide array of regulations can be quite burdensome.(304) The solution is obvious: seek national legislation that preempts state and local regulation.(305) The corporations’ preference ordering might be the following: Most preferred is a national regime of a no regulation at all.(306) Least preferred is a system allowing a wide range of state and local regulations, from quite restrictive to quite permissive.(307) The most interesting possibility lies in between – a national regime of moderately stringent regulation.(308) Corporations might prefer such a regime even if its regulations are more stringent than some of those applied locally because it might be cheaper to comply with a single, moderately stringent regulation than to comply with all the various regulations adopted locally.(309)

Treaties provide analogue in the international domain to congressional legislation in the domestic one.(310) And just as national corporations might want to see Congress enact a statute preempting diverse local regulations, so international corporations might want to see the United States enter into treaties preempting diverse national regulations.(311) Now suppose that, responding to pressure from “new media” corporations operating internationally, the United States enters into a treaty displacing domestic regulation everywhere, including the United States.(312) It is not difficult to imagine circumstances under which that treaty would contain provisions that, if enacted as purely domestic legislation within the United States, would raise serious First Amendment questions.(313) Tushnet claims to not be technologically sophisticated enough to know whether in the international domain there are close analogues to the “open access” rules Susan Crawford discusses in here essay.(314) But if there are according to Tushnet, one can imagine a situation in which U.S. treaty partners insist on open-internet rules that would be unconstitutional were Verizon’s challenge to succeed.(315) The U.S. negotiators might resist such rules, with support from U.S. “new media” companies whose first preference is a regime of no regulation at all.(316) But the partners might insist, and the U.S. “new media” companies might be willing to accept a regime of some regulation instead of having to deal with different regulation in each country.(317)

It is easy to imagine other cases according to Tushnet.(318) New York Times v. Sullivan places rather strict limits on the ability of states to impose liability for disseminating false information that harms reputation, and it has been extended to limit the imposition of liability for disseminating true information that invades privacy by casting the personae people present to the world in a false light.(319) Most other nations interpret their constitutional protections of free expression to allow liability to be imposed in such cases.(320) Similarly, Tushnet says perhaps there are nations that would not insulate intermediaries from liability as extensively as the United States does at present.(321) Suppose, then, that treaty partners insisted on regulations authorizing imposition of liability for libel or invasion of privacy via the Internet, or imposition of liability on intermediaries, more extensively than would be permitted by the First Amendment as it has been interpreted so far.(322) The First Amendment would then turn from being businesses’ friend into being (some) business’ enemy.(323)

According to Mark Tushnet, it is completely uncontroversial – now – that the Senate and the President cannot enter into a treaty with binding domestic effect that would violate the Bill of Rights, including of course the First Amendment.(324) The treaties sketched might be business friendly, according to Ammori’s informants, but the First Amendment would be the enemy of their businesses.(325)

Of course, perhaps none of this will come about: no relevant treaties might be negotiated; those that are might not contain provisions that raise serious domestic First Amendment questions: and by the time any such treaties come before the courts, the First Amendment might already be interpreted in a less business friendly way (So that treaty provisions would not violate the First Amendment domestically).(326) Likewise, the treaty power might be interpreted in a more business friendly way (So that treaties could in fact make domestically valid provisions that would otherwise be domestically invalid).(327) But the possibilities suggested by reading the essay’s by Susan Crawford and Marvin Ammori together bring to mind the Psalmist’s wisdom, “put not your trust in princes: – or in the First Amendment.(328) They also show why it is important to reconnect First Amendment Scholarship with general constitutional law, here the law dealing with preemption and the treaty power according to Tushnet.(328)

  1.  State Action Issues and The New Information Economy

The essays by Jack Balkin and Susan Crawford show that the interactions between government and private corporations caused by contemporary regulation raise a question that would typically be assessed by using the state action doctrine: when do actions taken by those who transmit digital speech from one place or person to another, whether regulated by the government or insulated by statute against liability, become actions subject to direct constitutional control?(329)

Here too New York Times Co. v. Sullivan is the key case according to Mark Tushnet. (330) It should be found in two places in standard constitutional law casebooks, once in the section on the First Amendment and once in the section on the state action doctrine.(331) The Court held unconstitutional central aspects of Alabama’s common law rules defining contours of a privately held right to reputation according to Tushnet.(332) The case shows that the Constitution sometimes in the view of Tushnet, always speaks to state common law definitions of entitlements.(333) Of course many state law entitlements are constitutionally permissible, but some are not.(334) To say that state action is absent is to say that the common law ruels under examination are constitutionally permissible; to say that it is present is to say that we must engage in further analysis by applying the relevant substantive constitutional law to those rules.(335) So, for example, in New York Times Co. v. Sullivan the court first concluded that Alabama’s imposition of civil liability on the newspaper was state action because “the Alabama courts have applied a state rule of law which petitioners claim to impose invalid restrictions on their constitutional freedoms of speech and press.(336) It then examined that claim using substantive constitutional law and held that the “state rule of law” was unconstitutional.(337)

The state action doctrine has become complex and confusing because the courts and commentators have lost sight of the fact that in every state action case the core issue is whether the “state rule of law” – In New York Times v. Sullivan, the state rule of law defining the contours of the right to reputation – is consistent with the Constitution in Tushnet’s assessment.(338) The articles by Jack Balkin and Susan Crawford bring this issue more into focus.(339)

For Balkin, one feature of new-school regulation is “public/private cooperation or co-optation.”(340) Ammori writes in a similar vein that statutory standards have displaced the Constitution as the primary legal vehicle for protecting corporate speech activities.(341) These observations immediately bring to mind one current formulation of some of the circumstances where state action should be found.(342) Under that formulation, nominally private action is directly subject to constitutional constraints when public and private actors are “pervasively entwined.”(343) Mr. Tushnet believes that further engagement with the state action doctrine might well benefit the First Amendment analysis of some of the more interesting questions about regulation of the new information economy. (344) The ideas of intermediary liability and immunity, for example, would be transformed dramatically were intermediaries treated as directly subject to First Amendment constraints.(345) Balkin describes various forms of collateral censorship by Internet Intermediaries.(346) With the state action doctrine in hand, we could call them simply censorship and ask directly whether the censorship could be justified.(347)

Mr. Tushnet doubts that under existing case law (2014), much intermediary activity is sufficiently entwined with public action to count as state action directly. (348) Yet that dos not dispose of the state action issue as identified in New York Times v. Sullivan, which calls on courts to asses the constitutionality of that “state rule of law” that defines property entitlements.(349) Tushnet writes that the intermediaries’ property rights should be the focus of attention.(350)

Crawford’s Article identifies a subject to which the state action doctrine properly understood speaks rather directly because the subject is one were the “rule of law” is precisely what is at issue.(351) Crawford argues that the “equal access” rules Verizon is challenging are the modern version of common carrier rules at common law.(352) Suppose that he Federal Communications Commission had never proposed those rules and Verizon adopted a policy limiting the access of some users to its facilities.(353) And suppose a user disfavored by that policy challenged it as a violation of the users First Amendment Rights.(354) The user’s initial problem would be to establish state action.(355) Where could this be found?

Again, Tushnet says New York Times Co. v. Sullivan provides the answer.(356) There, Alabama had a common law regime of legal rights with respect to reputation. (357) The New York Times article about Commissioner Sullivan infringed on the legal rights Alabama law conferred on him.(358) The Supreme Court held that Alabama’s system of legal rights in reputation was unconstitutional.(359) The reason was that the substance of Alabama’s rules – creating a right to reputation protected from harm cause by false statements made even without knowledge of their falsity and without reckless disregard for their truth or falsity – violated the First Amendment.(360)

Shelley v. Kraemer, the modern foundation of state action doctrine, has the same form, although that form is rarely recognized as such.(361) There, Missouri had a common law rule allowing restraints on the alienation of real property except in situations where the restraints excluded too large a group from the ability to purchase the property.(362) The Supreme Court first found state action in the Missouri rule, then held that rule unconstitutional.(363)

Mr. Tushnet focuses on the substantive holding of Shelley v. Kraemer.(364) The only coherent interpretation of that holding is that state property rules are unconstitutional when they have a substantially disparate impact on racial minorities. (365) Now return to the Verizon problem.(366) The user disadvantaged by Verizon’s policy notes that Verizon is relying on its background property rights, presumably under state law, to choose how to make its facilities available.(367) That is, the user’s claim would be that the background property law, which does not treat Verizon as a common carrier, violates the First Amendment.(368) How? The background law is the ordinary law of property, treating Verizon no differently than it treats an ordinary homeowner or a cake maker, who can choose whom to serve subject only to statutory nondiscrimination rules, which are, by hypothesis, absent in Verizon’s case.(369) The ordinary law of property is a content-neutral set of rules if ever there was one according to Tushnet.(369)

Still, content-neutral rules are not per se constitutional under the First Amendment according to Tushnet.(370) As a matter of stated doctrine, and occasional application, content-neutral rules violate the First Amendment when they have a substantial disparate impact on the ability of certain speakers to disseminate their messages, unless those rules serve a counterbalancing important interest (including, in the present context, the interest in preserving wide discretion in property owners to direct the use of their property).(371) This allows for the users’ challenge to be recasted: it is not to Verizon’s policy of regulating access but to the background rules of property law that fail to impose common-carrier obligations on Verizon.(372)

Tushnet has no doubts that today’s courts would reject the user’s challenge, probably on state action grounds (“Verizon is neither a state actor nor pervasively intertwined with one”) without recognizing the real structure of the challenge.(373) And Tushnet has little doubt that, were they to see the challenge in the correct way, today’s courts would find that the background law of property does not violate the First Amendment’s modest restrictions on content-neutral regulations.(374) Still, framing the issue in the Verizon case in state action terms brings out the real structure of the First Amendment arguments, which are over the constitutionality of specific content-neutral property rules.(375)

Tushnet frames the constitutional issue with reference to a user’s challenge to the alleged discriminatory practice Verizon would like to institute.(376) The case Susan Crawford discusses of course involves Verizon’s challenge to a proposed regulatory scheme.(377) Another classic case shows that the two challenges are in fact symmetrical. (378) Miller v. Schoene was a challenge to a Virginia Statute authorizing the state to destroy certain infected cedar trees so that the infection would not spread to nearby apple trees.(379) The cedar tree owners argued that the destruction was a taking of their property without just compensation.(380) Rejecting the challenge, then-Justice Stone, writing for a unanimous court, observed that “the state was under the necessity of making a choice between the preservation of one class of property and that of other wherever both existed in dangerous proximity.”(381) He continued, “it would have been none the less a choice if, instead of enacting the present statute, the state, by doing nothing, had permitted serious injury to the apple orchards within its borders to go on unchecked.”(382) Note, though, precisely what the state’s choice would have been had it “done” nothing.(383) It would have been a choice to allow the cedar tree owners to exercise their ordinary property right to use their trees as they wished.(384) The statute authorizing the trees destruction and the common law property rule were subject to exactly the same constitutional test.(385) So too with the common-carrier challenges, whether brought by Verizon or the user.(386)

Once again, thanks to Mark Tushnet, we see how general constitutional law is inextricably connected with First Amendment issues that one might have tried to deal with using only First Amendment doctrine and theory.

This is why in my opinion misinterpretations of the constitution and the concept of “positive rights”, as ideological methods for interpreting the Constitution, are the single greatest threats to our liberties in the U.S. They are antithetical to the core principles of the constitution and return our country to it pre-revolutionary state of prerogative power under administrative laws and regulations, which are unconstitutional.

I highly recommend also watching this panel discussion of these legal scholars for greater context into how and why they think the way they do….. as statists pretending not to be statists or heroes of fascism.

Harvard Law Review- First Amendment Symposium Open Panel Discussion

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Thoughts – Is the U.S. Still An Authoritarian National Surveillance State?

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“The question is not whether we will have a surveillance state in the years to come, but what sort of surveillance state we will have.” – Jack Balkin

Immediately following the original Snowden revelations in June 2013, I wrote a research paper inquiring into the nature of the U.S. national surveillance state with respect to the natural law treatment of human civil liberties. That paper comprises Part 1 of this research blog. At that time the research findings strongly suggested the U.S. national surveillance state was deep into authoritarian territory by using a framework provided by Yale Law School’s Jack Balkin in his work, “The Constitution in The National Surveillance State”. Famed Nobel Prize winning economist and political commentator, Paul Krugman, in his response to the Snowden revelations, also used Balkin’s framework and came to the same conclusion but has said very little about this topic since.  Although, this week Krugman did say that surveillance isn’t that big of a deal.

Over the last two years many national security and surveillance revelations have been published from the Snowden archive. In addition, the nature of US government policies and practices, national security or otherwise, under the Obama administration have further clarified and worthy of examination. The objective of this research post is to revisit the original research question with the focus on the threshold component of whether the U.S. can still be characterized as an authoritarian national surveillance state. In the interest of context and concision, I will briefly touch on the following questions in this post that have already been addressed in more expansive individual posts in Part 1 that explain Jack Balkin’s framework:

What is a National Surveillance State?

What is the Foreign Intelligence Act(FISA) & National Security Letters(NSL)?

What are the three main threats national surveillance poses to our freedoms?

What is an Authoritarian Information State?

What is a Democratic Information State?

What is a national surveillance state?

In the National Surveillance state, the government uses surveillance, data collection, collation, and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services.(1) The National Surveillance State is a special case of the Information State – a state that tries to identify and solve problems of governance through the collection, collation, analysis, and production of information.(2) The war on terror may be the most familiar justification of the rise of the national surveillance state, but it is hardly the sole or even the most important cause. (3) Government’s increasing use of surveillance and data mining is a predictable result of accelerating developments in information technology.(4) As technologies that let us discover and analyze what is happening in the world become ever more powerful, both governments and private parties will seek to use them.(5)

Foreign Intelligence Surveillance Act (FISA)

The Foreign Intelligence Surveillance Act (FISA) is a United States law that prescribes procedures for the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” and “agents of foreign powers”.(6) Under “agents of foreign powers” this may include U.S. citizens and permanent residents suspected of espionage or terrorism.(7) This law does not apply outside the U.S. and has been amended many times since the events of 9/11.(8) FISA administration includes its own judicial system and meaningful congressional oversight.(9)

National Security Letters (NSL)

A National Security Letter (NSL) is a demand letter, which differs from a subpoena.(10) It is used by U.S. Government agencies, mainly the Federal Bureau of Investigation (FBI), when investigating matters of national security.(11) It is issued to a particular entity or organization to turn over records and data pertaining to individuals.(12) By law, these letters can request only non-content information, such as transactional records, phone numbers dialed or sender or recipient email addresses.(13) They also include a gag order, preventing the recipient of the letter from disclosing that the letter was ever issued.(14)

What Are The Three Main Threats National Surveillance Poses To Our Freedoms?

The National Surveillance State poses three major dangers for our freedoms.(15) Because the National Surveillance State emphasizes ex ante prevention rather than ex post apprehension and prosecution, the first danger is that government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights.(16)

The second danger posed by the National Surveillance State is that traditional law enforcement and social services will increasingly resemble the parallel track.(17) Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for delivery of government services.(18) If data mining can help us locate terrorists, why not use it to find deadbeat dads or even people who have not paid their parking tickets?(19) If surveillance technologies signal that certain people are likely threats to public order, why not create a system of preventative detention outside the ordinary criminal justice system?(20) Why not impose sanctions outside the criminal law, like denying people the right to board airplanes or use public facilities and transportation systems?(21) And if DNA analysis can identify people who will likely impose high costs on public resources, why not identify them in advance and exclude them from public programs and other opportunities?(22) The more powerful and effective our technologies of surveillance and analysis become, the more pressure the government will feel to route around warrant requirements and other procedural hurdles so that it can catch potential troublemakers more effectively and efficiently before they have a chance to cause any harm.(23)

The third major threat to our freedoms according to Balkin is private power and the public- private cooperation.(24) Because the Constitution does not reach private parties, the U.S. government has increasing incentives to rely on private enterprise to collect and generate information for it.(25) Corporate business models, in turn, lead companies to amass and analyze more and more information about people in order to target new customers and reject undesirable ones.(26) As computing power increases and storage costs decline, companies will seek to know more and more about their customers and sell this valuable information to other companies and to the government.(27)

Since the National Surveillance State is a form of the Information State, let’s now look at the definitions Jack Balkin provides for Democratic vs. Authoritarian Information states. Then I will reexamine the status of the US. National Surveillance State to determine to what degree it can or cannot be considered authoritarian.

What is an Authoritarian Information State?

Authoritarian information states are information gluttons and information misers.(28) Like gluttons they grab as much information as possible because this helps maximize their power.(29) Authoritarian states are information misers because they try to keep the information they collect – and their own operations secret from the public.(30) They try to treat everything that might embarrass them or undermine their authority as state secrets, and they multiply secret rules and regulations, which lets them claim to obey the law without having to account for what they do.(31) In this way they avoid accountability for violating people’s rights and for their own policy failures.(32) Thus, information gluttony and information miserliness are two sides of the same coin: both secure governments’ power by using information to control their populations, to prevent inquiry into their own operations, to limit avenues of political accountability, and to facilitate self serving propaganda.(33)

What is a Democratic Information State?

Democratic information states are information gourmets and information philanthropists.(34) Like gourmets they collect and collate only the information they need to ensure efficient government and national security.(35) They do not keep tabs on citizens without justifiable reasons; they create a regular system of checks and procedures to avoid abuse.(36) They stop collecting information when it is no longer needed and they discard information at regular intervals to protect privacy.(37) When it is impossible or impractical to destroy information – for example, because it is stored redundantly in many different locations – democratic information states strictly regulate its subsequent use.(38) If the information state is unable to forget, it is imperative that it be able to forgive.(39)

Democratic information states are also information philanthropists because they willingly distribute much valuable information they create to the public, in the form of education, scientific research, and agricultural and medical information.(40) They allow the public access to information about their laws and their decision-making processes so that the public can hold government officials accountable if they act illegally or arbitrarily or are corrupt or inefficient.(41) They avoid secret laws and secret proceedings except where absolutely necessary.(42) Democratic states recognize that access and disclosure help prevent individual privacy because surveillance encourages abuses of power and inhibits freedom and democratic participation.(43) Thus being an information gourmet and an information philanthropist are also connected: both help keep governments open and responsible to citizens; both further individual autonomy and democracy by respecting privacy and promoting access to knowledge.(44)

Lets now examine the status of the U.S. National Surveillance state through the lens of Jack Balkin’s framework with the benefit of having many more articles and hundreds of source documents from the Snowden archive to examine. Moreover, we also have court decisions and policy positions to color the discussion.

What is the status of the U.S. National Surveillance State?

The concept of a Democratic National Surveillance State brings to mind a number of oxymoronic statements.(45) For example: A cuddly porcupine, clear as mud, definitely maybe, etc. Perhaps we would all be better off just dismantling the surveillance state entirely and throw it in the waste bin.(46) In addition, we would also be required to remove all the laws associated with the surveillance state.(47) It is pleasant to dream of those visions of the future, however the reality is that will never be more than a dream, thus we find national security states operating on a spectrum somewhere in between Democratic and Authoritarian.

“Democracy is a device that ensures we shall be governed no better than we deserve.”

-George Bernard Shaw

On June 6th, 2013 top-secret NSA documents depicting an expansive and powerful surveillance program that included the help and legally required collaboration of U.S. telecommunications and technology companies were publicly leaked.(47) The program exposed, “Prism”, while by itself may not be very surprising to many people because it seems to be a common belief that government should have reasonable ability to look into records for security purposes when it has probable cause.(48) In essence, an operational program like “Prism” in of itself is about as expansive as one can get.

Part 1 - Prism Slide

The “Prism” program, according to the leaked document seen above, included name brand technology companies such as Microsoft, Yahoo, Google, Facebook, PalTalk, Youtube, Skype, AOL, and Apple. The U.S. Department of Justice utilized current legal instruments in the form of FISA Warrants and National Security letters to compel and extract this information. Without going into too much detail essentially these instruments enabled the government to secretly request information of which the receiver of the request could not publicly disclose nor could they deny.(49) It was also done through a court system set up by the government that nobody but the government could present a case, and this is still true today.(50) The U.S. Government also used these same legal instruments and systems to request comprehensive and ongoing meta-data phone records on all Verizon customers.(51) The metadata bulk collection programs are approved under Section 215 of the U.S Patriot act, which is set to expire on June 1, 2015 unless it is re-approved by Congress. Given the lack of public discourse or debate about the renewal of this section of the Patriot act, it will likely be re-approved to very little fanfare.

Metadata in laymen terms is simply the transactional data that is captured through the process of making a call etc. It is not the contents of the call. Metadata in of its self is somewhat harmless, however when analyzed with other identification databases could illuminate a wealth of intelligence about the lives of people.(52) Although only the Verizon FISA warrants and the national security letters were leaked, it is reasonable to assume given the scope of the “Prism” program that almost every U.S. telecommunications provider has been served with one.(53)

Supporters of metadata bulk collection often tout that it is not the content of calls. While that may be true for that specific program, the NSA does have other programs that can accomplish that goal.

One program specifically called “Mystic” is an NSA program capable of recording 100 percent of a foreign country’s telephone calls, enabling the agency to rewind and review conversations as long as a month after they take place.(54) The Mystic program is effectively a Time Machine program for voice conversations.

Another program exposed by the Snowden archive is XKeyscore.(55) This program gives the widest reaching collection of online data to the NSA.(56) NSA analysts require no prior authorization to engage in searches and this program sweeps up emails, social media activity, and browsing history.(57) The stated mission of the NSA in its own documents is to “Collect it all”.

There are billions of smartphones globally. The majority of them have a SIM card. SIM chip technology was originally designed to ensure secure billing by carriers but have since evolved to include their own encryption methods for communications. GAMALTO is one of the world’s leading manufactures of SIM chip technologies and it was exposed that US and British intelligence agencies hacked the company and stole the encryption keys to their SIM chip technology. With these stolen encryption keys, intelligence agencies can monitor mobile communications without seeking or receiving approval from telecom companies and foreign governments.(58) Possessing the keys also sidesteps the need to get a legal warrant or a wiretap, while leaving no trace on the wireless provider’s network that the communications were intercepted.(59) Bulk key theft additionally enables the intelligence agencies to unlock any previously encrypted communications they had already intercepted, but did not yet have the ability to decrypt.(60)

Another NSA program called “Muscular” focuses on the links between data centers operated by US technology companies.(61) The majority of our information is on the private servers of large multi-national corporations.(62) Those companies have data centers all over the world for a whole host of redundancy and risk mitigation purposes for business continuity.(63) Sometimes these corporations move data from one data center to another, which sometimes travels across U.S. borders.(64) Since the NSA is focused on foreign intelligence gathering operations and view anything outside the U.S. as fair game to collection, the NSA has developed a program to infiltrate the links between these data centers to collect all that raw data intake even if it clearly includes information on U.S. citizens.(65)

As more of these surveillance and data collection programs became public a natural question became how were these programs legally justified. The New York Times published an article from the Snowden archive explaining how the secret FISA court evolved overtime from an adjudicator of the surveillance practices to an interpreter of the underlying laws that support them.(66) Thus creating a duel set of laws under our Constitution where one set of interpretations is public while the others are top secret for national security purposes.(67) The NYT article gives significant weight to my researching findings in Part 1 that the only method for interpreting the Constitutions 4th amendment, that would reasonably allow for these types of data collection/surveillance programs to be approved, is the “Dynamic Incorporation” method. This is the only method of interpretation that allows for the tension between the notions of “search” and “seizure” to be fully released, thus giving courts and government attorneys the ability to justify whatever they want.

During the same period these programs were disclosed, it was also leaked that the current U.S. administration was tapping phone lines and capturing emails of members of the associated press.(68) It was doing this under the suspicion the reporters being placed under surveillance were corroborating with governmental insiders to leak classified national security information.(69) The reason this is significant is because there are processes the Department of Justice is required to follow when potentially investigating members of the press.(70) These procedures are in place to protect the notion of freedom of speech and the press in the United States.(71) The implication of the leaked information disclosing the U.S. government’s secret collection of phone calls and emails of specific press personnel has allegedly had a significant dampening effect on members of the Associated Press from being able to privately confirm information with government officials.(72)

Jill Abramson was the most recent Executive Editor of the New York Times and in January 2014 said the Obama administration is the most secretive administration she has ever covered in her long career in journalism.(73) The effect of this dampening effect would be that whatever the government is saying publicly by proxy becomes truth because there is no check on the validity of the information due to fear of retribution to participating government insiders.

The reasoning behind these investigations is the manifestation of a multitude of “whistle blowing” national security and intelligence leaks occurring under the Obama administration.(74) More than under any previous administration combined. The Obama administration under the guise of national security is doing everything it can to keep insiders and the press from disclosing damaging and perhaps illegal actions taken by our government.(75) Moreover, the Obama Administration in 2014 set a new record for non-compliance to Freedom of Information Requests.(76) It has never taken longer for the government to process requests, it has denied more requests in 2014 than any previous year, and has redacted more in the documents it does eventually release.(77)

Lastly, since the 9/11 terrorist attacks, the Federal Bureau of Investigation (FBI) has arrested dozens of young men in controversial counterterrorism stings.(78) A few recent cases that involved a rudderless 20-year old in Cincinnati, Ohio, named Christopher Cornell, who conspired with an FBI informant – seeking “favorable treatment” for his own “criminal exposure” – in a harebrained plot to build pipe bombs and attack Capital Hill.(79) And just last month, on February 25th, the FBI arrested and charged two Brooklyn men for plotting, with the aid of a paid informant, to travel to Syria and join the Islamic State.(80) The likelihood that the men would have stepped foot in Syria of their own accord seems low; only after they met the informant, who helped with travel applications and other hurdles, did their planning take shape.(81)

Informant-led sting operations are central to the FBI’s Counterterrorism program.(82) Of 508 defendants prosecuted in federal terrorism-related cases in the decade after 9/11, 243 were involved with an FBI informant, while 158 were the targets of sting operations.(83) Of those cases, an informant or FBI undercover operative led 49 defendants in their terrorism plots.(84)

In these cases, the FBI says paid informants and undercover agents are foiling attacks before they occur.(85) But the evidence suggests – and a recent Human Rights Watch report on the subject illustrates – that the FBI isn’t always nabbing would-be terrorists so much as setting up mentally ill or economically desperate people who commit crimes they could never have accomplished on their own.(86)

A documentary movie is being released today April 16th, 2015th at the Tribeca Film Festival that depicts how one FBI informant mounted his own sting operation against the FBI.(87) (T)error follows a man who is one of 15,000 domestic spies who make up the largest surveillance network ever created in the United States.(88) During J. Edgar Hoover COINTELPRO operations, the bureau had just 1,500 informants.(89) The drug war brought that number up to about 6,000.(90) After 9/11, the bureau recruited so many new informants – many of them crooks or convicts, desperate for money or leniency on previous crimes – which the government had to develop software to help agents track their spies.(91)

To quickly summarize, its has been confirmed the current U.S. administration has been doing the following:

  1. Exercising the use of a secret subset rule of law under the guise of National Security to fight terrorism, while also saying the war on terror is subsiding.
  2. Investigating the Associated Press to suppress leaks through new and broad interpretations of the law.
  3. Collecting data of all types against all foreign people and U.S. domestic citizens.
  4. Utilizing a large domestic pool of spies (many are private companies or citizens)

There is a probable fifth notable action the current U.S administration is taking. That action is using government agencies to suppress and intimidate political enemies, such as the IRS targeting conservative groups for audits and tax-exempt status, while scrutinizing liberal leaning groups much less if at all for the same issues. While the investigation into this Fifth action is still ongoing, in the context of the other validated and corroborated dubious actions it is hard to imagine that senior White House staff, or even the President himself, if not directly order these actions, simply did nothing to stop them, most likely by “accident”. The irony being that nothing happens by accident in politics.

In July 2014 over half of all Inspector Generals in charge of governmental oversight signed a letter and sent it to the Senate Oversight committee.(92) The main thrust of the letter was to inform the Senate Oversight Committee that a meaningful amount of critical government agencies are withholding information from oversight inspectors.(93) Government agencies are claiming “privileged information” status from oversight based on a new interpretation of the administrative laws.(94) Columbia Law School Professor, Philip Hamburger, recently published a book titled “Is Administrative Law Unlawful?”

There are many complaints about administrative law—including that it is arbitrary, that it is a burden on the economy, and that it is an intrusion on freedom according to Mr. Hamburger.(95) The question Mr. Hamburger addresses is whether administrative law is unlawful, and focuses on constitutional history.(96) Those who forget history, it is often said, are doomed to repeat it.(97) And this is what has happened in the United States with the rise of administrative law—or, more accurately, administrative power.(98)

Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity.(99) From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution could not have barred it.(100) What Hamburger suggests, in contrast, is that administrative power is actually very old.(101) It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.(102) So is the U.S. still an authoritarian National Surveillance state with respect to the natural law treatment of human civil liberties?

While each one of the actions by the U.S. government discussed above on an individual basis would probably not constitute a strong argument the U.S. Government is far into Authoritarian Surveillance State territory. But all of the corroborated actions together create an overly compelling case for that argument to still ring true today. In fact, it seems Totalitarianism in the U.S. is seeking to cement itself firmly in place and our government officials from all three branches seem perfectly Ok with that. Noam Chomsky would probably say this is the perfect storm for the current U.S. administration and future administrations to meaningfully “manufacture the consent” of domestic and foreign people.(103)  Authoritarian regimes and their proxies utilize propaganda to support their policies and interests.  The U.S. is no different.  On April 13th, 2015 the prestigious Council on Foreign Relations published an article titled: “The Good News About Spying”.  This CFR article would lend one to believe the Obama administration is the most ardent defender and protector of civil liberties, that is of course if someone were gullible enough to believe it.

All authoritarian regimes utilize information to try and stifle those people and organizations that seek to speak truth to power. In the U.S. we have the First Amendment, which guarantees freedom of speech and freedom of the press. With the U.S. already being an authoritarian national surveillance state that has two sets of laws, a law enforcement and administrative state that supports the parallel track of laws, and utilizes private/public cooperation to engage in these activities; how would the U.S. government look to use administrative law to place limitations on speech through the utilization of information technology? That is the topic of my next research post.

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Thoughts – The History and Danger of Administrative Law

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What is the history and danger of administrative law?

This article focuses on what administrative law is and its history.  It leverages the work of Philip Hamburger at Columbia Law School and his recent book “Is Administrative Law Unlawful?”

There are many complaints about administrative law—including that it is arbitrary, that it is a burden on the economy, and that it is an intrusion on freedom.(1) The question Mr. Hamburger addresses is whether administrative law is unlawful, and will focus on constitutional history.(2) Those who forget history, it is often said, are doomed to repeat it.(3) And this is what has happened in the United States with the rise of administrative law—or, more accurately, administrative power.(4)

Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity.(5) From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution could not have barred it.(6) What Hamburger suggests, in contrast, is that administrative power is actually very old.(7) It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.(8)

But first, what exactly does Hamburger mean by administrative law or administrative power?(9) Put simply, administrative acts are binding or constraining edicts that come, not through law, but through other mechanisms or pathways.(10) For example, when an executive agency issues a rule constraining Americans—barring an activity that results in pollution, for instance, or restricting how citizens can use their land—it is an attempt to exercise binding legislative power not through an act of Congress, but through an administrative edict.(11) Similarly, when an executive agency adjudicates a violation of one of these edicts—in order to impose a fine or some other penalty—it is an attempt to exercise binding judicial power not through a judicial act, but again through an administrative act.(12)

In a way we can think of administrative law as a form of off-road driving.(13) The Constitution offers two avenues of binding power—acts of Congress and acts of the courts.(14) Administrative acts by executive agencies are a way of driving off-road, exercising power through other pathways.(15) For those in the driver’s seat, this can be quite exhilarating.(16) For the rest of us, it’s a little unnerving.(17)

The Constitution authorizes three types of power, as we all learned in school—the legislative power is located in Congress, executive power is located in the president and his subordinates, and the judicial power is located in the courts.(18) How does administrative power fit into that arrangement?(19)

The conventional answer to this question is based on the claim of the modernity of administrative law.(20) Administrative law, this argument usually goes, began in 1887 when Congress created the Interstate Commerce Commission, and it expanded decade by decade as Congress created more such agencies.(21) (Example: A potent set of administrative agencies for National Security purposes were created when Harry Truman signed the National Security Act in 1947.)  A variant of this account suggests that administrative law is actually a little bit older—that it began to develop in the early practices of the federal government of the United States.(22) But whether it began in the 1790s or in the 1880s, administrative law according to this account is a post-1789 development and—this is the key point—it arose as a pragmatic and necessary response to new and complex practical problems in American life.(23) The pragmatic and necessitous character of this development is almost a mantra—and of course if looked at that way, opposition to administrative law is anti-modern and quixotic.(24)

But there are problems with this conventional history of administrative law.(25) Rather than being a modern, post-constitutional American development, Hamburger argues that the rise of administrative law is essentially a re-emergence of the absolute power practiced by pre-modern kings.(26) Rather than a modern necessity, it is a latter-day version of a recurring threat—a threat inherent in human nature and in the temptations of power.(27)

The Prerogative Power of Kings

The constitutional history of the past thousand years in common law countries records the repeated ebb and flow of absolutism on the one side and law on the other.(28) English kings were widely expected to rule through law.(29) They had Parliament for making law and courts of law for adjudicating cases, and they were expected to govern through the acts of these bodies.(30) But kings were discontent with governing through the law and often acted on their own.(31) The personal power that kings exercised when evading the law was called prerogative power.(32)

Whereas ordinarily kings bound their subjects through statutes passed by Parliament, when exercising prerogative power they bound subjects through proclamations or decrees—or what we today call rules or regulations.(33) Whereas ordinarily kings would repeal old statutes by obtaining new statutes, when exercising prerogative power they issued dispensations and suspensions—or what we today call waivers.(34) Whereas ordinarily kings enforced the law through the courts of law, when exercising prerogative power they enforced their commands through their prerogative courts—courts such as the King’s Council, the Star Chamber, and the High Commission—or what we today call administrative courts.(35) Ordinarily, English judges resolved legal disputes in accordance with their independent judgment regarding the law.(36) But when kings exercised prerogative power, they expected deference from judges, both to their own decrees and to the holdings and interpretations of their extra-legal prerogative courts.(37)

Although England did not have a full separation of powers of the sort written into the American Constitution, it did have a basic division of powers.(38) Parliament had the power to make laws, the law courts had the power to adjudicate, and the king had the power to exercise force.(39) But when kings acted through prerogative power, they or their prerogative courts exercised all government powers, overriding these divisions.(40) For example, the Star Chamber could make regulations, as well as prosecute and adjudicate infractions.(41) And defenders of this sort of prerogative power were not squeamish about describing it as absolute power.(42) Absolutism was their justification.(43)

Conceptually, there were three central elements of this absolutism: extra-legal power, supra-legal power, and the consolidation of power.(44) It was extra-legal or outside the law in the sense that it bound the public not through laws or statutes, but through other means.(45) It was supra-legal or above the law in the sense that kings expected judges to defer to it—notwithstanding their duty to exercise their own independent judgment.(46) And it was consolidated in the sense that it united all government powers—legislative, executive, and judicial—in the king or in his prerogative courts.(47) And underlying these three central elements was the usual conceptual justification for absolute power: necessity. Necessity, it was said, was not bound by law.(48)

These claims on behalf of absolutism, of course, did not go unchallenged.(49) When King John called Englishmen to account extra legally in his Council, England’s barons demanded in Magna Carta in 1215 that no freeman shall be taken or imprisoned or even summoned except through the mechanisms of law.(50) When 14th century English kings questioned men in the king’s Council, Parliament in 1354 and 1368 enacted due process statutes.(51) When King James I attempted to make law through proclamations, judges responded in 1610 with an opinion that royal proclamations were unlawful and void.(52) When James subsequently demanded judicial deference to prerogative interpretations of statutes, the judges refused.(53) Indeed, in 1641 Parliament abolished the Star Chamber and the High Commission, the bodies then engaging in extra-legal lawmaking and adjudication.(54) And most profoundly, English constitutional law began to develop—and it made clear that there could be no extra-legal,  supra-legal, or consolidated power.(55)

The Rise of Absolutism in America

The United States Constitution echoes this.(56) Early Americans were very familiar with absolute power.(57) They feared this extra-legal, supra-legal, and consolidated power because they knew from English history that such power could evade the law and override all legal rights.(58) It is no surprise, then, that the United States Constitution was framed to bar this sort of power.(59) To be precise, Americans established the Constitution to be the source of all government power and to bar any absolute power.(60) Nonetheless, absolute power has come back to life in common law nations, including America.(61)

After absolute power was defeated in England and America, it circled back from the continent through Germany, and especially through Prussia.(62) There, what once had been the personal prerogative power of kings became the bureaucratic administrative power of the states.(63) The Prussians were the leaders of this development in the 17th and 18th centuries.(64) In the 19th century they became the primary theorists of administrative power, and many of them celebrated its evasion of constitutional law and constitutional rights.(65)

This German theory would become the intellectual source of American administrative law.(66) Thousands upon thousands of Americans studied administrative power in Germany, and what they learned there about administrative power became standard fare in American universities.(67) At the same time, in the political sphere, American Progressives were becoming increasingly discontent with elected legislatures, and they increasingly embraced German theories of administration and defended the imposition of administrative law in America in terms of pragmatism and necessity.(68)

The Progressives, moreover, understood what they were doing.69) For example, in 1927, a leading Progressive theorist openly said that the question of whether an American administrative officer could issue regulations was similar to the question of whether pre-modern English kings could issue binding proclamations.(70) By the 1920s, however, Progressives increasingly were silent about the continuity between absolute power and modern administrative power, as this undermined their claims about its modernity and lawfulness.(71)

In this way, over the past 120 years, Americans have reestablished the very sort of power that the Constitution most centrally forbade.(72) Administrative law is extra-legal in that it binds Americans not through law but through other mechanisms—not through statutes but through regulations—and not through the decisions of courts but through other adjudications.(73) It is supra-legal in that it requires judges to put aside their independent judgment and defer to administrative power as if it were above the law—which our judges do far more systematically than even the worst of 17th century English judges.(74) And it is consolidated in that it combines the three powers of government—legislative, executive, and judicial—in administrative agencies.(75)

Hamburger closes by addressing just two of many constitutional problems illuminated by the re-emergence of absolutism in the form of administrative power: delegation and procedural rights.(76)

One standard defense of administrative power is that Congress uses statutes to delegate its lawmaking power to administrative agencies.(77) But this is a poor defense.(78) The delegation of lawmaking has long been a familiar feature of absolute power.(79) When kings exercised extra-legal power, they usually had at least some delegated authority from Parliament.(80) Henry VIII, for example, issued binding proclamations under an authorizing statute called the Act of Proclamations.(81) His binding proclamations were nonetheless understood to be exercises of absolute power.(82) And in the 18th century the Act of Proclamations was condemned as unconstitutional.(83)

Against this background, the United States Constitution expressly bars the delegation of legislative power.(84) This may sound odd, given that the opposite is so commonly asserted by scholars and so routinely accepted by the courts.(85) But read the Constitution.(86) The Constitution’s very first substantive words are, “All legislative Powers herein granted shall be vested in a Congress of the United States.”(87) The word “all” was not placed there by accident.(88) The Framers understood that delegation had been a problem in English constitutional history, and the word “all” was placed there precisely to bar it.(89)

As for procedural rights, the history is even more illuminating.(90) Administrative adjudication evades almost all of the procedural rights guaranteed under the Constitution.(91) It subjects Americans to adjudication without real judges, without juries, without grand juries, without full protection against self-incrimination, and so forth.(92) Like the old prerogative courts, administrative courts substitute inquisitorial process for the due process of law—and that’s not just an abstract accusation; much early administrative procedure appears to have been modeled on civilian-derived inquisitorial process.(93) Administrative adjudication thus becomes an open avenue for evasion of the Bill of Rights.(94)

The standard justification for the administrative evasion of procedural rights is that they apply centrally to the regular courts, but not entirely to administrative adjudication.(95) But the history shows that procedural rights developed primarily to bar prerogative or administrative proceedings, not to regulate what the government does in regular courts of law.(96) As I already mentioned, the principle of due process developed as early as the 14th century, when Parliament used it to prevent the exercise of extra-legal power by the King’s Council.(97) It then became a constitutional principle in the 17th century in opposition to the prerogative courts.(98) Similarly, jury rights developed partly in opposition to administrative proceedings, and thus some of the earliest constitutional cases in America held administrative proceedings unconstitutional for depriving defendants of a jury trial.(99)

In sum, the conventional understanding of administrative law is utterly mistaken.(100) It is wrong on the history and oblivious to the danger.(101) That danger is absolutism: extra-legal, supra-legal, and consolidated power.(102) And the danger matters because administrative power revives this absolutism.(103) The Constitution carefully barred this threat, but constitutional doctrine has since legitimized this dangerous sort of power.(104) It therefore is necessary to go back to basics.(105) Among other things, we should no longer settle for some vague notion of “rule of law,” understood as something that allows the delegation of legislative and judicial powers to administrative agencies.(106) We should demand rule through law and rule under law.(107) Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power.(108) Then we at least can begin to recognize the danger that we are already in.(109)

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Thoughts – How is the NSA preparing the U.S. for a digital arms race and future battles?

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“The means of defense against foreign danger historically have become the instruments of tyranny at home.”

James Madison

In my last research post I addressed the gap of knowledge of why some methods of encryption live up to their promises and others do not. One of the clear reasons why some methods of encryption do not live up to their promises is due in no small part to the U.S. government and NSA working to weaken encryption standards in order to make their surveillance practices easier. The dual mandate of the NSA is to secure the Internet and protect people while simultaneously leveraging weaknesses in the system in order for it to engage in mass surveillance and deploy cyber weapons. A key question this poses: How is the NSA preparing the U.S. for a digital arms race and future battles?

A recent article in the German paper Der Spiegel based on the documents from Edward Snowden does a terrific job addressing this question. The following journalists and experts wrote the article:

Jacob Appelbaum, Aaron Gibson, Claudio Guarnieri, Andy Müller-Maguhn, Laura Poitras, Marcel Rosenbach, Leif Ryge, Hilmar Schmundt and Michael Sontheimer

Normally, internship applicants need to have polished resumes, with volunteer work on social projects considered a plus.(1) But at Politerain, the job posting calls for candidates with significantly different skills sets.(2) We are, the ad says, “looking for interns who want to break things.”(3)

Politerain is not a project associated with a conventional company.(4) It is run by a U.S. Government intelligence organization, the National Security Agency (NSA).(5) More precisely, it’s operated by the NSA’s digital snipers with Tailored Access Operations (TAO), the department responsible for breaking into computers.(6)

Potential interns are also told that research into third party computers might include plans to “remotely degrade or destroy opponent computers, routers, servers and network enabled devices by attacking the hardware.”(7) Using a program called Passionatepolka, for example, they may be asked to “remotely brick network cards.”(8) With programs like Berserkr they would implant “persistent backdoors” and “parasitic drivers”.(9) Using another piece of software called Barnfire, they would “erase the BIOS on a brand of servers that act as a backbone to many rival governments.”(10)

An intern’s tasks might also include remotely destroying the functionality of hard drives.(11) Ultimately, the goal of the internship programs was “developing an attackers mindset.”(12)

The internship listing is eight years old, but the attacker’s mindset has since become a kind of doctrine for the NSA’s data spies.(13) And the intelligence service isn’t just trying to achieve mass surveillance of Internet communication, either.(14) The digital spies of the Five Eyes alliance – comprised of the United States, Britain, Canada, Australia and New Zealand – want more.(15)

The Birth of Digital Weapons

According to top secret documents from the archive of NSA whistleblower Edward Snowden seen exclusively by SPIEGEL, they are planning for wars of the future in which the Internet will play a critical role, with the aim of being able to use the net to paralyze computer networks and, by doing so, potentially all the infrastructure they control, including power and water supplies, factories, airports or the flow of money.(16)

During the 20th century, scientists developed so-called ABC weapons – atomic, biological and chemical.(17) It took decades before their deployment could be regulated and, at least partly, outlawed.(18) New digital weapons have now been developed for the war on the Internet.(19) But there are almost no international conventions or supervisory authorities for these “D” weapons, and the only law that applies is the survival of the fittest.(20)

Canadian media theorist Marshall McLuhan foresaw these developments decades ago.(21) In 1970, he wrote, “World War III is a guerrilla information war with no division between military and civilian participation.”(22) That’s precisely the reality that spies are preparing for today.(23)

The U.S. Army, Navy, Marines and Air Force have already established their own cyber forces, but it is the NSA, also officially a military agency, that is taking the lead.(24) It’s no coincidence that the director of the NSA also serves as the head of the U.S. Cyber Command.(25) The Country’s leading data spy, Admiral Michael Rogers, is also its chief cyber warrior and his close to 40,000 employees are responsible for both digital spying and destructive network attacks.(26)

Surveillance Only ‘Phase 0’

From a military perspective, surveillance of the Internet is merely “Phase 0” in the U.S. digital war strategy.(27) Internal NSA documents indicate that it is the prerequisite for everything that follows.(28) They show that the aim of the surveillance is to detect vulnerabilities in enemy systems.(29) Once “stealthy implants” have been placed to infiltrate enemy systems, thus allowing “permanent access,” then Phase Three has been achieved – a phase headed by the word “dominate” in the documents.(30) This enables them to “control/destroy critical systems & networks at will through pre-positioned accesses. (laid in Phase 0).”(31) Critical infrastructure is considered by the agency to be anything that is important in keeping a society running: energy, communications and transportation.(32) The internal documents state that the ultimate goal is “real time controlled escalation”.(33)

One NSA presentation proclaims, “The next major conflict will start in cyberspace.”(34) To that end, the U.S. Government is currently undertaking a massive effort to digitally arm itself for network warfare.(35) For the 2013 secret intelligence budget, the NSA projected it would need around $1 billion in order to increase the strength of its computer network attack operations.(36) The budget included an increase of some $32 million for “unconventional solutions” alone.(37)

NSA Docs on Network Attacks and Exploitation

In recent years, malware has emerged that experts have attributed to the NSA and its Five Eyes alliance based on a number of indicators.(38) They include programs like Stuxnet, used to attack the Iranian nuclear program.(39) Or Regin, a powerful spyware Trojan that created a furor in Germany after it infected the USB stick of a high-ranking staffer to Chancellor Angela Merkel.(40) Agents also used Regin in attacks against the European Commission, the EU’s executive, and Belgian telecoms company Belgacom in 2011. (41)

Given that spies can routinely break through just about any security software, virtually all Internet users are at risk of a data attack.(42)

The new documents shed some new light on other revelations as well.(43) Although an attack called Quantaminsert has been widely reported by Der Spiegel and other newspapers, documentation shows that in reality it has a low success rate and it has likely been replaced by more reliable attacks such as Quantumdirk, which injects malicious content into chat services provided by websites such as Facebook and Yahoo.(44) And computers infected with Straitbizarre can be turned into disposable and non-attributable “shooter” nodes.(45) These nodes can then receive messages from the NSA’s Quantam network, which is used for “command and control for very large scale active exploitation and attack.”(46) The secret agents were also able to breach mobile phones by exploiting vulnerability in the Safari browser in order to obtain sensitive data and remotely implant malicious code.(47)

In this guerrilla war over data, little differentiation is made between soldiers and civilians, the Snowden documents show.(48) Any Internet user could suffer damage to his or her data or computer.(49) It also has the potential to create perils in the offline world as well.(50) If, for example, a D weapon like Barnfire were to destroy or “brick” the control center of a hospital as a result of a programming error, people who don’t even own a mobile phone could be affected.(51)

Intelligence agencies have adopted “plausible deniability” as their guiding principle for Internet operations.(52) To ensure their ability to do so, they seek to make it impossible to trace the author of the attack.(53)

It’s a stunning approach with which the digital spies deliberately undermine the very foundations of the rule of law around the globe.(54) This approach threatens to transform the Internet into a lawless zone in which superpowers and their secret services operate according to their own whims with very few ways to hold them accountable for their actions.(55)

NSA Docs on Malware and Implants

Attribution is difficult and requires considerable forensic effort.(56) But in the new documents there are at least a few pointers.(57) Querty, for example, is a keylogger that was part of the Snowden archive.(58) It’s a pieces of software designed to surreptitiously intercept all keyboard keys pressed by the victim and record them for later inspection.(59) It is an ordinary, indeed rather dated, keylogger.(60) Similar software can already be found in numerous applications, so it doesn’t seem to pose any acute danger – but the source code contained in it does reveal some interesting details.(61) They suggest that this keylogger might be part of the large arsenal of modules that belong to the Warriorpride program, a kind of universal Esperanto software used by all the Five Eyes partner agencies that at times was even able to break into iPhones, among other capabilities.(62) The documents published by Spiegel include sample code from the keylogger to foster further research and enable the creation of appropriate defenses. (63)

‘Just a Bunch of Hackers’

The men and women working for the Remote Operations Center (ROC), which uses the codename S321, at the agency’s headquarters in Fort Meade, Maryland, work on one of the NSA’s most crucial teams, the unit responsible for covert operations.(64) S321 employees are located on the third floor of one of the main buildings on the NSA’s campus.(65) In one report from the Snowden archive an NSA man reminisces about how when they got started, the ROC people were “just a bunch of hackers.”(66) Initially, people worked “in a more ad hoc manner,” the report states.(67) Nowadays, however, procedures are “more systematic”.(68) Even before NSA management massively expanded the ROC group during the summer of 2005, the department’s motto was, “Your data is your data, your equipment is our equipment.”(69)

NSA Docs on Exfiltration

The agents sit in front of their monitors, working in shifts around the clock.(70) Just how close the NSA has already gotten to its aim of “global network dominance” is illustrated particularly well by the work of department S31177, codenamed Transgression.(71) The department’s task is to trace foreign cyber attacks, observe and analyze them and, in the best-case scenario, to siphon off the insights of competing intelligence agencies.(72) This form of “Cyber Counter-Intelligence” counts among the most delicate forms of modern spying.(73)

How Does The NSA Read Over Shoulders of Other Spies?

In addition to providing a view of the U.S.’s own ability to conduct digital attacks, Snowden’s archive also reveals the capabilities of other countries.(74) The Transgression team has access to years of preliminary fieldwork and experience at its disposal, including databases in which malware and network attacks from other countries are cataloged.(75) The Snowden documents show that the NSA and its Five Eyes partners have put numerous network attacks waged by other countries to their own use in recent years.(76) One 2009 document states that the department’s remit is to “discover, understand and evaluate” foreign attacks.(77) Another document reads: “Steal their tools, tradecraft, targets and take.”(78)

In 2009, an NSA unit took notice of a data breach-affecting workers at the U.S. Department of Defense.(79) The department traced an IP address in Asia that functioned as the command center for the attack.(80) By the end of their detective work, the Americans succeeded not only in tracing the attack’s point of origin to China, but also in tapping intelligence information from other Chinese attacks – including data that had been stolen from the United Nations.(81) Afterwards, NSA workers in Fort Meade continued to read over their shoulders as the Chinese secretly collected further internal UN data.(82) “NSA is able to tap into Chinese SIGINT collection,” a report on the success in 2011 stated.(83) SIGINT is short for Signals Intelligence.(84)

The practice of letting other intelligence services do the dirty work and then tapping their results is so successful that the NSA even has a name for it: “Fourth Party Collection.”(85) And all countries that aren’t part of the Five Eye alliance are considered potential targets for use of this “non-traditional” technique – even Germany.(86)

“Difficult To Track, Difficult To Target”

The Snowden documents show that, thanks to fourth party collection, the NSA succeeded in detecting numerous incidents of data spying over the past 10 years, with many attacks originating from China and Russia.(87) It also enabled the Tailored Access Operations (TAO) to track down the IP address of the control server used by China and, from there, to detect the people responsible inside the People’s Liberation Army.(88) It wasn’t easy, the NSA spies noted.(89) The Chinese had apparently used changing IP addresses, making them “difficult to track; difficult to target.”(90) In the end, though, the document states, they succeeded in exploiting a central router.(91)

The document suggests that things got more challenging when the NSA sought to turn the tables and go after the attacker.(92) Only after extensive “wading through uninteresting data” did they finally succeed in infiltrating the computer of a high-ranking Chinese military official and accessing information regarding targets in the U.S. Government and in other governments around the world.(93) They also were able to access source code for Chinese malware.(94)

NSA Docs on Fourth Party Access

But there have also been successful Chinese operations.(95) The Snowden documents include an internal NSA assessment from a few years ago of the damage caused.(96) The report indicates that the U.S. Defense Department alone registered more than 30,000 known incidents; more than 1,600 computers connected to its network had been hacked.(97) Surprisingly high costs are listed for damage assessment and network repair: more than $100 million.(98)

Among the data on “sensitive military technologies” hit in the attack were air refueling schedules, the military logistics planning system, missile navigation systems belonging to the Navy, information about nuclear submarines, missile defense and other top secret defense projects.(99)

The desire to know everything isn’t, of course, an affliction only suffered by the Chinese, Americans, Russians and British.(100) Years ago, U.S. agents discovered a hacking operation originating in Iran in a monitoring operation that was codenamed Voyeur.(101) A different wave of attacks, known as Snowglobe, appears to have originated in France.(102)

Transforming Defense Into Attacks

The search for foreign cyber attacks has long since been largely automated by the NSA and its Five Eyes partners.(103) The Tutelage system can identify incursions and ensure that they do not reach their targets.(104)

The examples given in the Snowden documents are not limited to attacks originating in China.(105) The relatively primitive Low Orbit Ion Cannon(LOIC) is also mentioned.(106) The name refers to malware used by the protest movement Anonymous to disable target websites.(107) In that instance, one document notes, Tutelage was able to recognize and block the IP addresses being used to conduct the denial of service attack.(108)

The NSA is also able to transform its defenses into an attack of its own.(109) The method is described as “reverse engineer, re-purpose software” and involves botnets, sometimes comprising millions of computers belonging to normal users onto which software has been covertly installed.(110) They can thus be controlled remotely as part of a “zombie army” to paralyze companies or to extort them.(111) If the infected hosts appear to be within the United States, the relevant information will be forwarded to the FBI Office of Victim Assistance.(112) However, a host infected with an exploitable bot could be hijacked through a Quantambot attack and redirected to the NSA.(113) This program identified in NSA documents as Defiantwarrior and it is said to provide advantages such as “pervasive network analysis vantage points” and “throw-away non-attributable CNA (Computer Network Attack) nodes”.(114) This system leaves people’s computers vulnerable and covertly uses them for network operations that might be traced back to an innocent victim.(115) Instead of providing protection to private Internet users, Quantambot uses them as human shields in order to disguise its own attacks.(116)

NSA Docs on Botnet Takeovers

NSA specialists at the Remote Operations Center (ROC) have an entire palette of digital skeleton keys and crowbars enabling access to even the best-protected computer networks.(117) They give their tools aggressive sounding names, as though they were operating an app-store for cyber criminals: The implant tool “Hammerchant” allows the recording of Internet-based phone calls (VOIP).(118) Foxacid allows agents to continually add functions to small malware programs even after they have been installed in target computers.(119) The project’s logo is a fox that screams as it is dissolved in acid.(120) The NSA has declined to comment on operational details but insists that it has not violated the law.(121)

But as well developed as the weapons of digital war may be, there is a paradox lurking when it comes to breaking into and spying on third party networks: How can intelligence services be sure that they don’t become victims of their own methods and be infiltrated by private hackers, criminals or other intelligence services, for example?(122)

To control their malware, the Remote Operations Center operatives remain connected to them via their own shadow network, through which highly sensitive telephone recordings, malware programs and passwords travel.(123)

The incentive to break into this network is enormous.(124) Any collection of VPN keys, passwords and backdoors is obviously of very high value.(125) Those who possess such passwords and keys could theoretically pillage bank accounts, thwart military deployments, clone fighter jets and shut down power plants.(126) It means nothing less than “global network dominance”.(127)

But the intelligence world is a schizophrenic one.(128) The NSA’s job is to defend the Internet while at the same time exploiting its security holes.(129) It is both cop and robber, consistent with the motto adhered to by spies everywhere: “Reveal their secrets, protect our own.”(130)

As a result, some hacked servers are like a bus during rush hour, with people constantly coming and going.(131) The difference, though, is that the server’s owner has no idea anyone is there.(132) And the presumed authorities stand aside and do nothing.(133)

“Unwitting Data Mules”

It’s absurd: As they are busy spying, the spies are spied on by other spies.(134) In response, they routinely seek to cover their tracks or to lay fake ones instead.(135) In technical terms, the ROC lays false tracks as follows: After third-party computers are infiltrated, the process of exfiltration can begin – the act of exporting the data that has been gleaned.(136) But the loot isn’t delivered directly to ROC’s IP address. (137) Rather, it is routed to a so-called Scapegoat Target.(138) That means that stolen information could end up on someone else’s servers, making it look as though they were the perpetrators. (139)

Before the data ends up at the Scapegoat Target, of course, the NSA intercepts and copies it using its mass surveillance infrastructure and sends it on to the ROC.(140) But such cover-up tactics increase the risk of a controlled or uncontrolled escalation between the agencies involved.(141)

It’s not just computers, of course, that can be systematically broken into, spied on or misused as part of a botnet.(142) Mobile phones can also be used to steal information from the owner’s employer.(143) The unwitting victim, whose phone has been infected with a spy program, smuggles the information out of the office.(144) The information is then retrieved remotely as the victim heads home after work.(145) Digital spies have even adopted drug-dealer slang in referring to these unsuspecting accomplices.(146) They are called “unwitting data mules.”(147)

NSA agents aren’t concerned about being caught.(148) That’s partly because they work for such a powerful agency, but also because they don’t leave behind any evidence that would hold up in court.(149) And if there is no evidence of wrongdoing, there can be no legal penalty, no parliamentary control of intelligence agencies and no international agreement.(150) Thus far, very little is known about the risks and side effects inherent in these new D weapons and there is almost no government regulation.(151)

Edward Snowden has revealed how intelligence agencies around the world, led by the NSA, are doing their best to ensure a legal vacuum in the Internet.(152) In a recent interview with the U.S. public broadcaster PBS, the whistleblower voiced his concerns that “defense is becoming less of a priority than offense.”(153)

Snowden finds that concerning.(154) “What we need to do,” he said, “is we need to create a new international standards of behavior.”(155)

I agree with Edward Snowden and I believe the place to begin with standards of behavior is for governments and organizations to respect that our digital lives and real lives are one in the same and should be treated exactly the same under the law.  Also, any cyber weapon or capability before being approved should be analyzed through the lens that our digital lives and real lives are effectively one in the same and whether or not the use of such a tool or weapon would infringe on our Constitutional/Natural Human Rights.

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Thoughts – Not All Encryption Methods Live Up to Their Promises

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In my last research post I provided a sufficient amount of necessary data points to make the assertion the private sector needs to encrypt all of its own data in transit and data in motion. I also assert these encrypted systems need to be further protected by intelligent-multi-factor authentication technology, the unofficial default standard in the technology industry, to ensure users are who they say they are within these systems based on a weighting of confidence and trust. There is still, however, a gap of knowledge that needs to be filled on the types of encryption methods that are and are not effective at protecting data. Filling that gap is the objective of this research post.

Encryption very simply is the utilization of mathematics to protect communications from spying – is used for electronic transactions of all types, by governments, firms and private users alike.(1) A main theme from the Edward Snowden NSA surveillance revelations is the topic of encryption and a recent article published by the German newspaper Der Spiegel goes further into the topic through the lens of the Snowden archive to show that not all encryption methods live up to their promises and why.(2) Some of the most well respected experts on encryption technologies either co-wrote or consulted on the article and supporting documentation.

One example is the encryption featured in Skype, a program used by some 300 million users to conduct Internet video chat that is touted as secure.(3) It isn’t really. “Sustained Skype collection began in Feb 2011,” reads a National Security Agency (NSA) training document from the Edward Snowden archive.(4) Less than half a year later, in the fall, the code crackers declared their mission accomplished.(5) Since then, data from Skype has been accessible to the NSA snoops.(6) Software giant Microsoft, which acquired Skype in 2011, said in a statement: “We will not provide governments with direct or unfettered access to customer data or encryption keys.”(7) The NSA had been monitoring Skype even before that, but since February 2011 the service has been under order from the secret U.S. Foreign Intelligence Surveillance Court (FISC), to not only supply information to the NSA but also to make itself accessible as a source of data for the agency.(8)

The “sustained Skype collection” is a further step taken by the authority in the arms race between intelligence agencies seeking to deny users of their privacy and those wanting to ensure they are protected.(9) There have also been some victories for privacy, with certain encryption systems proving to be so robust they have been tried and true standards for more than 20 years.(10)

For the NSA, encrypted communication – or what all other Internet users would call secure communication – is “a threat”.(11) In one internal NSA training document an NSA employee asks: “Did you know that ubiquitous encryption on the Internet is a major threat to NSA’s ability to prosecute digital-network intelligence (DNI) traffic or defeat adversary malware?”(12)

The Snowden documents reveal the encryption programs the NSA has succeeded in cracking, but, importantly, also the ones that are still likely to be secure.(13) Although the documents are around two years old, experts consider it unlikely the agency’s digital spies have made much progress in cracking these technologies.(14) “Properly implemented strong crypto systems are one of the few things that you can rely on,” Snowden said in June 2013, after fleeing to Hong Kong.(15)

The digitization of society in the past several decades has been accompanied by the broad deployment of cryptography, which is no longer the exclusive realm of secret agents.(16) Whether a person is conducting online banking, Internet shopping or making a phone call, almost every Internet connection today is encrypted in some way.(17) The entire realm of cloud computing – that is of outsourcing computing tasks to data centers somewhere else, possibly even on the other side of the globe – relies heavily on cryptographic security systems.(18) Internet activists even hold crypto parties where they teach people who are interested in communicating securely and privately how to encrypt their data.(19)

In Germany, concern about the need for strong encryption goes right up to the highest levels of government.(20) Chancellor Angela Merkel and her cabinet now communicate using phones incorporating strong encryption.(21) The government has also encouraged members of the German public to take steps to protect their own communication.(22) Michael Hange, the president of the Federal Office for Information Security, has stated: “We suggest cryptography – that is, consistent encryption.”(23)

It’s a suggestion unlikely to please some intelligence agencies.(24) After all, the Five Eyes alliance – the secret services of Britain, Canada, Australia, New Zealand and the United States – pursue a clear goal: removing the encryption of others on the Internet wherever possible.(25) In 2013, the NSA had a budget of more than $10 billion.(26) According to the U.S. intelligence budget for 2013, the money allocated for the NSA department called Cryptanalysis and Exploitation Services (CES) alone was $34.3 million.(27)

Last year, the Guardian, New York Times, and ProPublica reported on the contents of a 2010 presentation on the NSA’s BULLRUN decryption program, but left out many specific vulnerabilities.(28) The presentation states that, “for the past decade, NSA has led an aggressive, multipronged effort to break widely used Internet encryption technologies,” and “vast amounts of encrypted Internet data which have up till now been discarded are now exploitable.”(29) Decryption, it turns out, works retroactively – once a system is broken, the agencies can look back in time in their databases and read stuff they could not before.(30) This specific risk is why in Part 1 of my research blog, I assert under the 5th Amendment your digital life should never be able to incriminate your real life, because they are effectively one in the same.

The number of Internet users concerned about privacy online has risen dramatically since the first Snowden revelations.(31) But people who consciously use strong end-to-end encryption to protect their data still represent a minority of the Internet-using population.(32) There are a number of reasons for this: Some believe encryption is too complicated to use.(33) Or they think the intelligence agency experts are already so many steps ahead of them that they can crack any encryption program.(34)

Still Safe from the NSA

This isn’t true.(35) As one document from the Snowden archive shows, the NSA had been unsuccessful in attempts to decrypt several communications protocols, at least as of 2012.(36) An NSA presentation for a conference took place that year lists the encryption programs the Americans failed to crack.(37)  In the process, the NSA cryptologists divided their targets into five levels corresponding to the degree of difficulty of the attack and the outcome, ranging from “trivial” to “catastrophic.”(38)

Attacks against Crypto (Reference Documents)

Monitoring a documents path through the Internet is classified as “Trivial.”(39) Recording Facebook chats is considered a “minor” task, while the level of difficulty involved in decrypting emails sent through Moscow-based Internet service provider “mail.ru” is considered “moderate.”(40) Still, all three of those classifications don’t appear to pose any significant problems for the NSA.(41)

Things first become troublesome at the fourth level.(42) The presentation states that the NSA encounters “major” problems in its attempts to decrypt messages sent through heavily encrypted email service providers like Zoho or in monitoring users of the Tor network, which was developed for surfing the web anonymously.(43) Tor, otherwise known as The Onion Router, is free and open source software that allows users to surf the web through a network of more than 6,000 linked volunteer computers.(44) The software automatically encrypts data in a way that ensures that no single computer in the network has all of a user’s information.(45) For surveillance experts, it becomes very difficult to trace the whereabouts of a person who visits a particular website or to attack a specific person while they are using Tor to surf the web.(46)

Cryptanalytics (Reference Documents)

The NSA also has “major” problems with Truecrypt, a program for a encrypting files on computers.(47) Truecrypt’s developers stopped their work on the program last May, prompting speculation about pressures from government agencies.(48) A protocol called Off-the-Record (OTR) for encrypting instant messaging in an end-to-end encryption process also seems to cause the NSA major problems.(49) Both are programs whose source code can be viewed, modified, shared and used by anyone.(50) Experts agree it is far more difficult for intelligence agencies to manipulate open source software programs than many of the closed systems developed by companies like Apple and Microsoft.(51) Since anyone can view free and open source software, it becomes difficult to insert secret back doors without it being noticed.(52) Transcripts of intercepted chats using OTR encryption handed over to the intelligence agency by a partner in Prism – an NSA program that accesses data from at least nine American Internet companies such as Google, Facebook, and Apple – show that the NSA efforts appear to have been thwarted in these cases: “No decrypt available for this OTR message.”(53) This shows that OTR at least sometimes makes communications impossible to read for the NSA.(54)

Things become “catastrophic” for the NSA at level five – when, for example, a subject uses a combination of Tor, another anonymization service, the instant messaging system CSpace and a system for Internet telephony (voice over IP) called ZRTP.(55) This type of combination results in a “near-total loss/lack of insight to target communications, presence,” the NSA document states.(56)

ZRTP, which is used to securely encrypt conversations and text chats on mobile phones, is used in free and open source programs like RedPhone and Signal.(57) “It’s satisfying to know that the NSA considers encrypted communication from our apps to be truly opaque,” says RedPhone developer Moxie Marlinspike.(58)

Too Robust for Fort Meade

Also, the “Z” in ZRTP stands for one of its developers, Phil Zimmermann, the same man who created Prett Good Privacy, which is still the most common encryption program for emails and documents in use today.(59) PGP is more than 20 years old, but apparently it remains too robust for the NSA spies to crack.(60) “No decrypt available for this PGP encrypted message,” a further document viewed by the contributors of the Speigel article states of emails the NSA obtained from Yahoo.(61)

Phil Zimmerman wrote PGP in 1991.(62) The American nuclear weapons freeze activist wanted to create an encryption program that would enable him to securely exchange information with other like-minded individuals.(63) His system quickly became very popular among dissidents around the world.(64) Given its use outside the United States, the U.S. Government launched an investigation into Zimmerman during the 1990’s for allegedly violating the U.S. Arms Export Control Act.(65) Prosecutors argued that making encryption software of such complexity available abroad was illegal.(66) Zimmerman responded by publishing the source code as a book, an act that was constitutionally protected as free speech.(67)

PGP continues to be developed and various versions are available today.(68) The most widely used is GNU Privacy Guard (GnuPG), a program developed by German programmer Werner Koch.(69) One document shows that the Five Eyes intelligence services sometimes use PGP themselves.(70) The fact is that hackers obsessed with privacy and the U.S. authorities have a lot more in common than one might initially believe.(71) The Tor project, was originally developed with the support of the U.S. Naval Research Laboratory.(72)

Deanonymizing (Reference Documents)

Today, NSA spies and their allies do their best to subvert the system their own military helped conceive, as a number of documents show.(73) Tor deanonymization is obviously high on the list of NSA priorities, but the success achieved here seems limited.(74) One GCHQ document from 2011 even mentions trying to decrypt the agencies’ own use of Tor – as a test case.(75)

To a certain extent, the Snowden documents should provide some level of relief to people who thought nothing could stop the NSA in its unquenchable thirst to collect data.(76) It appears secure channels still exist for communication.(77) Nevertheless, the documents also underscore just how far the intelligence agencies already go in their digital surveillance activities.(78)

Internet security comes at various levels – and the NSA and its allies obviously are able to “exploit” – i.e. crack – several of the most widely used ones on a scale that was previously unimaginable.(79)

VPN Security only Virtual

One example is virtual private networks (VPN), which are often used by companies and institutions operating from multiple offices and locations.(80) A VPN theoretically creates a secure tunnel between two points on the Internet.(81) All data is channeled through that tunnel, protected by cryptography.(82) When it comes to the level of privacy offered here, virtual is the right word, too.(83) This is because the NSA operates a large-scale VPN exploitation project to crack large numbers of connections, allowing it to intercept the data exchanged inside VPN – including, for example, the Greek government’s use of VPN’s.(84) The team responsible for the exploitation of those Greek VPN communications consisted of 12 people, according an NSA document reviewed by the Der Spiegel article authors.(85)

Attacks on VPN (Reference Documents)

The NSA also targeted SecurityKiss, a VPN service in Ireland.(86) The following fingerprint for Xkeyscore, the agency’s powerful spying tool, was reported to be tested and working against the service(87):

fingerprint(‘encryption/securitykiss/x509’) = $pkcs and ( ($tcp and from_port(443)) or ($udp and (from_port(123) or from_por (5000) or from_port(5353)) ) ) and (not (ip_subnet(‘10.0.0.0/8’ or ‘172.16.0.0/12’ or ‘192.168.0.0/16’ )) ) and ‘RSA Generated Server Certificate’c and ‘Dublin1’c and ‘GL CA’c;

According to an NSA document dating from late 2009, the agency was processing 1,000 requests an hour to decrypt VPN connections.(88) This number was expected to increase to 100,000 per hour by the end of 2011.(89) The aim was for the system to be able to completely process “at least 20 percent” of these requests, meaning the data traffic would have to be decrypted and reinjected.(90) In other words, by the end of 2011, the NSA’s plans called for simultaneously surveilling 20,000 supposedly secure VPN communications per hour.(91)

VPN connections can be based on a number of different protocols.(92) The most widely used ones are called Point-to-Point Tunneling Protocol (PPTP) and Internet Protocol Security (Ipsec).(93) Both seem to pose few problems for the NSA spies if they really want to crack a connection.(94) Experts have considered PPTP insecure for some time now, but it is still in use in many commercial systems.(95) The authors of one NSA presentation boast of a project called FOURSQUARE that stores information including decrypted PPTP VPN metadata.(96)

Using a number of different programs, they claim to have succeeded in penetrating numerous networks.(97) Among those surveilled were the Russian carrier Transaero Airlines, Royal Jordanian Airlines as well as Moscow-Based telecommunications firm Mir Telematiki.(98) Another success touted is the NSA’s surveillance of the internal communications of diplomats and government officials from Afghanistan, Pakistan, and Turkey.(99)

Ipsec as a protocol seems to create slightly more trouble for the spies.(100) But the NSA has the resources to actively attack routers involved in the communication process to get to the keys to unlock the encryption rather than trying to break it, courtesy of the unit called Tailored Access Operations: “TAO got on the router through which banking traffic of interest flows,” it says in one presentation.(101)

Anything But Secure

Even more vulnerable than VPN systems are the supposedly secure connections ordinary users must rely on all the time for web applications like financial services, e-commerce or accessing webmail accounts.(102) A lay user can recognize these allegedly secure connections by looking at the address bar in his or her Web browser: With these connections, the first letters of the address there are not just http – for Hypertext Transfer Protocol – but https.(103) The “s” stands for “secure”.(104) The problem is that there isn’t really anything secure about them.(105)

Attacks on SSL/TLS (Reference Documents)

The NSA and its allies routinely intercept such connections – by the millions.(106) According to an NSA document, the agency intended to crack 10 million intercepted https connections a day by late 2012.(107) The intelligence services are particularly interested in the moment when a user types his or her password.(108) By the end of 2012, the system was supposed to be able to “detect the presence of at least 100 password based encryption applications” in each instance some 20,000 times a month.(109)

For it’s part, Britain’s GCHQ collects information about encryption using the TLS and SSL protocols – the protocols https connections are encrypted with – in a database called “Flying Pig.”(110) The British spies produce weekly “trends reports” to catalo which services use the most SSL connections and save details about those connections.(111) Sites like Facebook, Twitter, Hotmail, Yahoo, and Apple’s iCloud service top the charts, and the number of catalogued SSL connections for one week is in the many billions for the top 40 sites alone.(112)

Hockey Sites Monitored

Canada’s Communications Security Establishment (CSEC) even monitors sites devoted to the country’s national pastime: “We have noticed a large increase in chat activity on the hockeytalk sites. This is likely due to the beginning of playoff season,” it says in one presentation.(113)

The NSA also has a program with which it claims it can sometimes decrypt the Secure Shelf Protocol (SSH).(114) This is typically used by systems administrators to log into employees’ computers remotely, largely for use in the infrastructure of businesses, core Internet routers and other similarly important systems.(115) The NSA combines the data collected in this manner with other information to leverage access to important systems of interest.(116)

Weakening Cryptographic Standards

But how do the Five-Eyes agencies manage to break all these encryption standards and systems? The short answer is: They use every means available.(117)

One method is consciously weakening the cryptographic standards that are used to implement the respective systems.(118) NSA documents show that NSA agents travel to the meetings of the Internet Engineering Task Force (IETF), an organization that develops such standards, to gather information but presumably also to influence the discussions there.(119) “New session policy extensions may improve our ability to passively target two sided communications,” says a brief write-up of an IETF meeting in Sand Diego on an NSA-internal Wiki.(120)

This process of weakening encryption standards has been going on for some time.(121) A classification guide, a document that explains how to classify certain types of secret information, labels “the fact that NSA/CSS makes cryptographic modifications to commercial or indigenous cryptographic information security devices or systems in order to make them exploitable as TOP SECRET.(122)

Cryptographic systems actively weakened this way or faulty to begin with are then exploited using supercomputers.(123) The NSA maintains a system called Longhaul, an “end-to-end attack orchestration and key recovery services for Data Network Cipher and Data Network Session Cipher traffic.”(124) Basically, Longhaul is the place where the NSA looks for ways to break encryption.(125) According to an NSA document, it uses facilities at the Tordella Supercomputer Building at Fort Meade, Maryland, and Oak Ridge Data Center in Oak Ridge, Tennessee.(126) It can pass decrypted data to systems such a s Turmoil – a part of the secret network the NSA operates throughout the world, used to siphon off data.(127) The cover term for the development of these capabilities is Valientsurf.(128) A similar program called Gallantwave is meant to “break tunnel and session ciphers.”(129)

In other cases, the spies use their infrastructure to steal cryptographic keys from the configuration files found on internet routers.(130) A repository called Discoroute contains “router configuration data from passive and active collection” one document states.(131) Active here means hacking or otherwise infiltrating computers, passive refers to collecting data flowing through the Internet with secret NSA-operated computers.(132)

An important part of the Five Eyes’ efforts to break encryption on the Internet is the gathering of vast amounts of data.(133) For example, they collect so-called SSL handshakes – that is, the first exchange between two computers beginning an SSL connection.(134) A combination of metadata about the connections and metadata from the encryption protocols then help to break the keys which in turn allow reading or recording the now decrypted traffic.(135)

If all else fails, the NSA and its allies resort to brute force: they hack their target’s computers of Internet routers to get to the secret encryption – or they intercept computers on the way to their targets, open them and insert spy gear before they even reach their destination, a process they call interdiction.(136)

A Grave Threat to Security

For the NSA, the breaking of encryption methods represents a constant conflict of interest.(137) The Agency and its allies do have their own secret encryption methods for internal use.(138) But the NSA is also tasked with providing the U.S. National Institute of Standards and Technology (NIST) with “technological guidelines in trusted technology” that may be “used in cost-effective systems for protecting sensitive computer data.”(139) In other words: Checking cryptographic systems for their value is part of the NSA’s job.(140) One encryption standard the NIST explicitly recommends is the Advanced Encryption Standard (AES).(141) The standard is used for a large variety of tasks, from encrypting the PIN numbers of banking cards to hard disk encryption for computers.(142)

One NSA document show s that the agency is actively looking for ways to break the very standard it recommends – this section is marked as “Top Secret”(TS): “Electronic codebooks, such as the Advanced Encryption Standard, are both widely used and difficult to attack cryptanalytically.(143) The NSA has only a handful of in-house techniques.(144) The Tundra Project investigated a potentially new technique – the Tau statistic – to determine its usefulness in codebook analysis.”(145)

The fact large amounts of the cryptographic systems that underpin the entire internet have been intentionally weakened or broken by the NSA and its allies poses a grave threat to the security of everyone who relies on the Internet – from individuals looking for privacy to institutions and companies relying on cloud computing.(146) Many of these weaknesses can be exploited by anyone who knows about them – not just the NSA.(147)

Inside the intelligence community, this danger is widely known: According to a 2011 document, 832 individuals at GCHQ alone were briefed into the BULLRUN project, whose goal is a large-scale assault on Internet security.(148)

I will simply close this research post by saying again: know and protect thy digital self, because nobody is quite like you.

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Thoughts – Tortured Principles of U.S. Governance and Security

Time for Action - Clock

“The use of torture compromises that which most distinguishes us from our enemies, our belief that all people, even captured enemies, possess basic human rights.”

            Senator John McCain(1)

This week the summary of the Senate Intelligence report on the U.S. Governments’ use of methods tantamount to torture was released.(2) The objective of this blog is to address the degree to which technology has changed domestic and international politics in the modern Information Age with profound implications upon human civil liberties. How does the topic of torture fit within that objective? In Part 2 of this research blog I argue that Governance, which is based on the rule of law, is a technology in of itself.(3) Part 2 concludes that misinterpretations of the Constitution and the notion of “positive rights” are the greatest threats to the United States and these threats come from the progressive legal scholar community.(4) In Part 1 I argue the U.S. National Security state is authoritarian in nature by using the framework provided in the paper “The Constitution in the National Surveillance State” written by profound Yale legal scholar Jack Balkin. The findings in the torture report only help solidify further my conclusion in Part 1 that the U.S. national security state is deeply authoritarian in nature. In fact I would argue that it cements it firmly in place.

Torture, like blanket and warrant less surveillance, as a method for collecting information must be justified on a legal basis. My research finds the rule of law itself is a technology, which is the basis for me bringing this important topic up on this blog focused on how technology is changing domestic and international politics. Perhaps it is serendipity, but it is very rare and good fortune to have fresh empirical evidence like this summary torture report to further illustrate my findings and conclusions. Let’s now illustrate.

If you want an excellent exposé on how attorneys in the national security state think about your security and liberty, I would highly recommend consuming this one-hour panel discussion at the 2014 Aspen Security Summit that featured the following people:

Raj De, General Counsel, National Security Agency
Robert Litt, General Counsel, Office of the Director of National Intelligence
John Rizzo, Former Deputy & Acting General Counsel, Central Intelligence Agency
Scott Charney, Corporate Vice President, Trustworthy Computing, Microsoft
MODERATOR: Greg Miller, National Security Correspondent, The Washington Post

Panel member John Rizzo was the first attorney in the CIA to be briefed on the Department of Justice memos on justifying torture. Those memos were drafted by Deputy Assistant Attorney General John Yoo and signed by then Assistant Attorney General Jay Bybee (Bybee is now a Federal Judge). John Yoo is now teaching at the University of California – Berkeley. A copy of those memos can be found here. The CIA asked for an updated legal opinion in 2005 and was signed by Steven Bradbury the Head of the Office of Legal Counsel. A copy of that opinion can be found here.

These memos advised the Central Intelligence Agency, the United States Department of Defense, and the President on the use of enhanced interrogation techniques: mental physical torment and coercion such as prolonged sleep deprivation, binding in stress positions, and water boarding, and stated such acts, widely regarded as torture, might be legally permissible under an expansive interpretation of presidential authority during times of war.

Since we now know the U.S. Government engages in warrantless surveillance and torture in order to collect information, listening to these government attorneys justify and argue how their positions are “legal” and “Justifiable” is a worthwhile exercise. It is worthwhile because it provides an ample demonstration of how the founding principles of our country get tortured in the name of governance and security. There are a lot of great quotes in the segment but a telling line came from John Rizzo when he says he never really saw himself working for the American people because his client was the CIA. This is an interesting argument by Rizzo but the other attorneys on the panel all nod in agreement with him. In a prior post I discussed the “Tools of Argument: How The Best Lawyers Think, Argue, and Win” and my own employment of them in this research project.  This book truly helps analytically parse arguments and statements being made by attorneys.

If unfamiliar with The Tools of Argument: How the Best Lawyers Think, Argue, and Win, written by Professor Joel Trachtman at The Fletcher School of Law and Diplomacy, I cannot recommend it enough regardless of your profession. I am not an attorney but employed these methods in my research efforts. Through that process I received an email from John Yoo responding to my arguments about “positive rights” and misinterpretations of the Constitution. Here is what Mr. Yoo emailed me on December 26, 2013:

Mr. Allsup:

Thank you for your message. I agree that misinterpreting the Constitution and positive rights are a real threat to the U.S. constitutional and political order. But I think that terrorism, Cyberwarfare, and WMD are more immediate threats from abroad. The change in our constitutional order is a longer-term problem that we can cure ourselves, while foreign threats are shorter-term challenges that we must address immediately.

Best wishes,

John Yoo(5)

Emanuel S. Heller Professor of Law, University of California at Berkeley

Knowing what we know now about U.S. torture and warrant less surveillance, John Yoo’s email to me is thought provoking. While his email acknowledges positive rights and misinterpretations of the Constitution as threats, he positions them as subordinate to foreign threats such as cyber warfare, Weapons of Mass Destruction, and terrorism. In a prior series of research posts on how the Judicial, Legislative, and Executive branches of the U.S. Government practice the religion of state power, I assert most politicians, agency bureaucrats, and government attorneys would think and feel the exact same way as Mr. Yoo.

Mr. Yoo also states that foreign threats are more of a short-term problem, while the Constitutional and Political order problems are longer term that we can fix ourselves. This is interesting and thought provoking coming from the man who drafted the initial torture memos. Lets illustrate:

Leading up to the release of the Senate Torture report U.S. politicians, retired national security leaders, and current national security leaders loudly expressed their concern the release of this report would inflame our enemies and open the U.S. to increased risk and future terrorist attacks.(6) U.S. Secretary of State John Kerry personally called the committee to express his concerns.(7) While I agree the release of the report may increase our risk and further upset our enemies; its not the report itself that will increase those risks, it is what the report says about what the U.S. Executive, Legislative, and Judicial Branches of government have done and, more importantly, what will not be done in response to what the report illustrates that will increase risks to U.S. citizens.  In short, the misinterpretations and positive rights notions used to approve torture and warrantless surveillance, have increased Americans’ short term and long term risks.

In response to terrorist attacks and threats, the U.S. Political class has used misinterpretations of our Constitution and the notion of positive rights as methods to institute national security programs aimed at protecting U.S. citizen’s security. Providing security and predictability in the pursuit of our individual manifest destiny is arguably the sole purpose of governance. That being said those misinterpretations and perversions of the notion of rights have now come at a very high cost to U.S. Citizens. In short, the U.S. government and national security apparatus are exponentially increasing the risks of its citizens through its policies and lack of correcting mistakes or holding anyone accountable when mistakes are exposed.

Noam Chomsky at MIT wrote a persuasive article published on July 1st, 2014, which argued that America’s Foreign Policy since World War II has primarily increased risks for U.S. Citizens. I agree with Mr. Chomsky’s point of view and the facts he put on display speak for themselves. While I agree with Mr. Chomsky, I believe there is more to the story he illustrated. What I am going to illustrate now is how the nature and velocity of risk is going to change and exponentially increase into an eventual full-blown crisis of confidence in U.S. Governance. Crisis’s of confidence in governance, throughout history, more often than not means an outbreak of war (Civil war or otherwise). War is a continuation of politics by other means according to Carl von Clausewitz.(8)  Our trust is very expensive; lets illustrate how expensive it is.

In a prior post I articulated what Obama and his NSA Review panel really think about our security and why, based on my research and email dialog with the NSA review panel members. The conclusion is they view our privacy as relatively unimportant to the work of government and national security. In a follow up post based on my research and email dialog with a broader set of legal scholars, I addressed what America’s top liberal legal scholars think about surveillance, governance, and their own ideas. The conclusion is that progressive liberal legal scholars view our privacy as relatively unimportant to the work of government, national security, and do not appreciate it when their ideas are challenged directly and publicly.  They also don’t try to defend them, at least directly.

In another post I address the nature of the legal standards used by the U.S. government in order to open national security investigations. The conclusion is that the legal standards used by the U.S. government are tantamount to enabling the government to have its own imagination. Net net, the government can open investigations based on what are tantamount to conspiracy theories. Another post that is related to legal standards addresses how progressive liberal legal and governance theories have been instituted within the U.S. Government. The conclusion is that legal standards, regulations, and rules have been changed in order to make it easier for the government to exercise its power. A recent empirical data point illustrating this is the August 2014 letter over half of all U.S. Inspector Generals signed and sent to Congress explaining that agencies are withholding or delaying key information for meaningful oversight to occur. I also wrote a post addressing the nature of national security and double government with respect to our rights. The conclusion of which illustrates that the U.S. National Security network of institutions is where real policies are made and they exert tremendous influence over the judicial, legislative, and executive branches of government.

The last research post I wrote explores why the U.S. Government treats our real lives and digital lives as separate and unequally. The conclusion is that the government treats our digital lives as separate and unequal because it knows that if it can control our information, it can ultimately control and shape us based on what the government thinks and feels is best for us.

Those conclusions, when coupled with the revelations of the Senate Select Oversight Committee Torture Report, create a disconcerting picture of the future of the United States and geo-politics. Essentially, the United States is no longer operating as an effective Democracy but as an Autocracy. Autocracy is tantamount to totalitarianism due in part that true power is concentrated in the hands of a relatively small group of people. It is also abundantly clear the U.S. engages in warrantless electronic surveillance on a global scale and despite Obama’s executive order that stopped the use of torture, according to John Brennan, the current Director of the CIA, the return of torture tactics is up to ‘future policymakers’’.(9)

The U.S. has long criticized its geopolitical adversaries such as China and Russia on their civil liberties postures regarding surveillance and methods tantamount to torture. Upon the release of the torture report U.S. geopolitical adversaries are now calling the U.S. hypocritical and its not just about its past, it’s also about its current policies of extra-judicial killings and drone striking people, including a few American Citizens, with no due process. Essentially the U.S. government is taking the position people are guilty and never given the opportunity to prove their innocence. The U.S. government, of course, says this is all done in the name of fighting terrorism, but there is sufficient empirical evidence these efforts have moved far beyond that.

Unfortunately, the U.S. is rapidly gaining the largely justified reputation as a lawless and unaccountable country based on the policies and actions of the U.S. government. The U.S. government no longer abides by long standing principals of human rights, natural rights, or constitutional rights but a synthetic moral/principle relativism based on ideology incongruous with historically understood American governance values. Given the role the U.S. plays in global affairs that span governance, economics, finance, technology, energy, etc. our very way of life is being put at risk by increasing threats. This is because the U.S. Government now has more negative similarities with its traditional enemies and less in common positively with its traditional allies. In addition, the traditional lists of U.S. enemies now have more positive commonalities with traditional U.S. government allies. Our friends trust us even less, if at all, and our enemies do not fear us and are seeking the trust of our traditional friends.  So where does that leave U.S. citizens?

So the U.S. government has divorced itself from its traditional constitutional and human rights principles to both its own citizens and global citizens. It is the responsibility of all American’s to contribute and take responsibility for the actions of their government to seek change, because if they do not, then outside political, economic, and military forces will exert pressure and change will be made for us. It is only a rational byproduct when a super power nation, whose government has lost its principles, does not recognize the issues and seek authentic and meaningful change. That is why U.S. citizens need to take action to rectify the problems of our government because if we do not, the future that is coming, is the one we have earned. That future does not look good at this moment, but there are three things we can individually and collectively do immediately to start down the path of taking hold of our rights and give the rest of the world a reason to allow us to earn their confidence again.

Recommended Actions:

  1. Companies should encrypt their own data and customer data that is at rest and in motion. (Sony is a great example to learn from why this is important)
  2. Companies need to ensure their users are who they say they are by instituting intelligent multi-factor authentication to help protect their digital/real life. You can read more detail about this in Part 3 of my research blog. (It is already an unofficial default standard, but every company is doing it differently with varying results. Those with patents on event driven security architecture could seriously help by enforcing their patents to harmonize best practices and positively encourage rapid adoption of the technology)
  3. Advocate for our digital lives and real lives to be treated as one in the same by the Constitution and Universal Declaration of Human Rights. (Because nobody is quite like you and your digital life should never be able to incriminate your real life)

My conclusion from Part 1, 2, and 3 of this research blog was that the U.S. government, in order to serve its own self interests, needs to start treating all people in the same manner it expects itself to be treated. The U.S. government is rapidly encrypting all of its own data that is at rest and in motion and instituting intelligent multi-factor authentication to protect its digital life. The U.S. Government is doing that because it knows that its digital life and real life are one in the same, but it feels your digital life and real life should be treated separate and unequal. That needs to change and it’s the type of change everyone should start believing in and seeking……right fucking now …….. because nobody is quite like you!

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Thoughts – Your Digital Self and Real Self: Separate But Unequal and Why

water fountains

To level set, the objective of this blog is to address the degree to which technology has changed domestic and international politics in the modern Information Age with profound implications upon human civil liberties.

Throughout the arc of history, there is clear and compelling evidence the development and ownership of complex tools and technologies, as a product of human creativity, has changed the course of humanity. There is no shortage of excellent books and blogs written by profound authors on these advancements. There seems, however, to be a gap in the dialog that this blog has addressed and will continue to address. The point of view this blog is written from is that humans have a digital persona that mirrors their physical one, but the two personas do not share the same set of constitutional and human rights despite being one in the same.

In a prior post titled “The Religion of State Power and Making Government Simpler,” I argue the political and intellectual operators of the modern progressive movement have fundamentally changed the nature of how the U.S. government works by making it easier for the government to exercise its power based on ideological and political terms. To follow up that post I wrote three research posts that each explores how the Madisonian institutions (Judicial, Legislative, and Executive) of the U.S. government practice the religion of state power based on the work of Michael Glennon at The Fletcher School of Law and Diplomacy.

The empirical data and research suggest a strong bias by the people and institutions of the Madisonian institutions for expanding state power regardless of ideological affinity. Those findings coupled with my research in Part 1 and Part 2 which argue the U.S. is an authoritarian national surveillance state with respect to our civil liberties and natural human rights and the ideas supporting it come from the modern progressive movement, brings the discussion to a critical point and question:

Can Laws, Regulations, and Policies That Infringe On Your Digital Life Be Considered Racist and Discriminatory in Nature?

John Podesta is the father of modern progressivism, founder of the Center of American Progress, and current Senior Advisor to the President of the United States. He was tasked in January 2014 by President Obama with completing a comprehensive review of the way that “big data” will affect the way we live and work; the relationship between government and citizens; and how public and private sectors can spur innovation and maximize the opportunities and free flow of this information while minimizing the risks to privacy.(1) Essentially, this was an effort by President Obama, John Podesta, and the White house to convey their point of view of how technology has changed politics. This coincidentally came right on the heels of President Obama’s NSA Review Panel’s report being published.

According to Podesta we are undergoing a revolution in the way that information about our purchases, our conversations, our social networks, our movements, and even our physical identities are collected, stored, analyzed, and used.(2) The immense volume, diversity and potential value of data will have profound implications for privacy, the economy, and public policy.(3) Podesta’s working group considered all those issues, and specifically how the present and future state of these technologies might motivate changes in U.S. policies across a range of sectors.(4)

The review lead by Podesta was a collaborative effort.(5) The President’s Council of Advisors on Science and Technology (PCAST) conducted a study to explore in-depth the technological dimensions of the intersection of big data and privacy, which fed the broader effort of the review.(6) The working group consulted with industry, civil liberties groups, technologists, privacy experts, international partners, and other national and local officials on the significance of and future for these technologies.(7) The group also worked with a number of think tanks, academic institutions, and other organizations around the country as they convened stakeholders to discuss these very issues and questions.(8) Many countries and organizations abroad, in response to the Snowden revelations, were also analyzing and responding to the same challenge and seizing the opportunity of big data.(9) These discussions also helped inform the study lead by Podesta.(10)

At the outset of the project Podesta admitted they didn’t expect to answer all of the questions or produce a comprehensive new policy in 90 days, but did expect this work to serve as the foundation for a robust and forward-looking plan of action.(11) The final report was published and released on May 1st, 2014. In the one-page opening letter to the President, Podesta and his collaborators make the following statements:

While big data unquestionably increases the potential of government power to accrue un-checked, it also holds within it solutions that can enhance accountability, privacy, and the rights of citizens.(12) Properly implemented, big data will become a historic driver of progress, helping our nation perpetuate the civic and economic dynamism that has long been its hallmark.(13)

Big data technologies will be transformative in every sphere of life.(14) The knowledge discovery they make possible raises considerable questions about how our framework for privacy protection applies in a big data ecosystem.(15) Big data also raises other concerns.(16) A significant finding of this report is that big data analytics have the potential to eclipse longstanding civil rights protections in how personal information is used in housing, credit, employment, health, education, and the marketplace. (17) Americans’ relationship with data should expand, not diminish, their opportunities and potential.(18)

The report concludes by saying big data tools offer astonishing and powerful opportunities to unlock previously inaccessible insights from new and existing data sets.(19) Big data can fuel developments and discoveries in health care and education, in agriculture and energy use, and in how business organized their supply chains and monitor their equipment.(20) Big data holds the potential to streamline the provision of public services, increase the efficient use of taxpayer dollars at every level of government, and substantially strengthen national security.(21) The promise of big data requires government data be viewed as a national resource and be responsibly made available to those who can derive social value from it.(22) It also presents the opportunity to shape the next generation of computational tools and technologies that will in turn drive further innovation.(23)

Big data also introduces many quandaries.(24) By their very nature, many of the sensor technologies deployed on our phones and in our homes, offices, and on lampposts and rooftops across our cities are collecting more and more information.(25) Continuing advances in analytics provide incentives to collect as much data as possible not only for today’s uses but also for potential later uses.(26) Technologically speaking, this is driving data collection to become functionally ubiquitous and permanent, allowing the digital traces we leave behind to be collected, analyzed, and assembled to reveal a surprising number of things about our lives and ourselves.(27) These developments challenge longstanding notions of privacy and raise questions about the “notice and consent” framework, by which a user gives initial permission for their data to be collected.(28) But these trends need not prevent creating ways for people to participate in the treatment and management of their information.(29)

An important finding of Podesta’s review is that while big data can be used for great social good, it can also be used in ways that perpetrate social harms or render outcomes that have inequitable impacts, even when discrimination is not intended.(30) Biases have the potential to become cumulative, affecting a wide range of outcomes for certain disadvantaged groups.(31) Society must take steps to guard against these potential harms by ensuring power is appropriately balanced between individuals and institutions, whether between citizens and government, consumer and firm, or employee and business.(32)

The report says the big data revolution is in its earliest stages and we will be grappling for many years to understand the full sweep of its technologies; the ways it will empower health, education, and the economy; and, crucially, what its implications are for core American values, including privacy, fairness, non-discrimination, and self-determination.(33)

Even at his early juncture, the authors of this comprehensive report believe important conclusions are already emerging about big data that can inform how the Administration moves forward in a number of areas.(34) In particular, there are five areas that will each bring the American people into the national conversation about how to maximize benefits and minimize harms in a big data world:(35)

  • Preserving Privacy Values: Maintaining our privacy values by protecting personal information in the marketplace, both in the United States and through interoperable global privacy frameworks;(36)
  • Educating Robustly and Responsibly: Recognizing schools – particularly K-12 – as an important sphere for using big data to enhance learning opportunities, while protecting personal data usage and building digital literacy and skills;(37)
  • Big Data and Discrimination: Preventing new modes of discrimination that some uses of big data may enable;(38)
  • Law Enforcement and Security: Ensuring big data’s responsible use in law enforcement, public safety, and national security; and(39)
  • Data as a Public Resource: Harnessing data as a public resource, using it to improve the delivery of public services, and investing in research and technology that will further power the big data revolution.(40)

Report Policy Recommendations

This review identified six discrete policy recommendations that deserve prompt Administration attention and policy development. These are:

  1. Advance the Consumer Privacy Bill of Rights. The Department of Commerce should take appropriate consultative steps to seek stakeholder and public comment on big data developments and how they impact the Consumer Privacy Bill of Rights then devise draft legislative text for consideration by stakeholders and submission by the President to Congress.(41)
  2. Pass National Data Breach Legislation. Congress should pass legislation that provides for a single national data breach standard along the lines of the Administrations May 2011 Cyber security legislative proposal.(42)
  3. Extend Privacy Protections to non-US Persons. The Office of Management and Budget should work with departments and agencies to apply the Privacy Act of 1974 to non-U.S. persons where practicable, or to establish alternative privacy policies that apply appropriate and meaningful protections to personal information regardless of a person’s nationality.(43)
  4. Ensure Data Collected on Students In School is used for Education Purposes. The federal government must ensure that privacy regulations protect students against having their data being shared or used inappropriately, especially when the data is gathered in an educational context.(44)
  5. Expand Technical Expertise to Stop Discrimination. The federal government’s lead civil rights and consumer protection agencies should expand their technical expertise to be able to identify practices and outcomes facilitated by big data analytics that have a discriminatory impact on protected classes, and develop a plan for investigating and resolving violations of law.(45)
  6. Amend the Electronic Communications Act. Congress should amend ECPA to ensure the standard of protection for online, digital content is consistent with that afforded in the physical world – including by removing archaic distinctions between emails left unread or over a certain age.(46)

While the report for the most part is directionally accurate in what it says, it falls short on any real meaningful actions/next steps. Podesta suggests Congress should write legislation, which is true, it should. But the reality of how the U.S. legislative branch practices the religion of state power, any meaningful legislation will be watered down to be meaningless in substance. Based on how the Executive branch practices the religion of state power, any meaningful legislation will be vetoed and anything signed will be meaningless in any regard unless of course it is positive for expanding government power. The judicial branch will only rule on cases that eventually come to it and even then it can only rule based on the information in the case file.  This sets up some interesting politics because this report is all about politics, which is not surprising given that John Podesta is the man charged with managing the process. When Podesta worked for the Clinton administration he was dubbed “The Secretary of Shit” because his job was to dispense with the copious scandals of that administration too.  Mr. Podesta is just sticking to what he knows best.

The politics of the report are clever. The report gives the administration the ability to look like it is taking the high and principled road, but suggests methods that will most certainly never take the country down the path this administration purportedly desires.  The report purposefully does not address the NSA revelations, which is strange because this report sets up the administration to critizcize the private sector for its use of information, while not seriously evaluating the governments own policies. Perhaps some type of self induced data breach event will occur in the not so distant future that will give the administration the political expediency, based on the alleged principled reputation this report masquerades, to take some meaningful executive action (real policy) as it relates to regulation of technology the industry, data brokers, etc. that comports the narrow progressive ideology.  Something like this mysteriously happened in 2011 when RSA Security was hacked, and its master cryptographic keys were stolen. This enabled someone or government agency to hack into the International Monetary Fund, U.S. Department of Defense, Lockheed Martin, etc. but no major investigation occurred but it most certainly would have helped with defense budget appropriations and policy development with Madisonians. Perhaps it was the U.S. Government national intelligence community hacking itself to further advance its already authoritarian nature. Given what we have learned from the Snowden archive, pernicious false flag activity like this would not be out of character for them.

Remember, information is power. Jack Balkin from Yale law school in his paper “The Constitution in the National Surveillance State” that was published in “The Constitution in 2020”, said that the information state is the logical extension of the social state and national security state. Podesta’s report, not surprisingly, suggests the same logical extension as Jack Balkin by discussing the importance of big data to government programs like welfare, etc but also by not acknowledging the authoritarian nature of the current national surveillance state. The modern conservative movement concerns itself with the advances of socialism in the U.S., however neither political party seems overly concerned about the U.S. becoming an Authoritarian Information State because it furthers the agenda of those who practice the religion of state power, which is all of them.

Another politically thought provoking item; in recommendation 6 the report basically says that our digital lives and physical lives should be held to the same standard under the law. This I agree with, however the report says nothing about doing so under the Constitution. The report says legislation should be done through ECPA by congress. The likelihood of this occurring is low but could occur through executive action. Oversight of our privacy would then be the job of some bureaucratic agency to implement through the regulatory framework and not the legislative branch. This is thought provoking because it comports with the fact that we know Cass Sunstein through his work in OIRA, thanks in no small part to him publishing a book about it, perverted the regulatory rules to make it simpler for the government to deepen its commitment to the religion of state power.

Thanks to Sunstein the regulatory framework is like a mini, yet hidden, second Bill of Rights. Podesta’s report discusses rights, I have argued in a prior post, positive right are really another perversion of progressive thinking because it alludes to rights of people, but only when that right is positive for the policy of the government. Any ancillary positive benefit for citizens is purely a coincidence; this is the religion of state power in full form. Those who practice the religion of state power always rhetorically allude to constitutional principles, however the empirical evidence suggests they truly have no interest in our Constitutional rights or human rights. This is because the Constitution is designed to restrain state power; in other words, it is designed to suppress the ambitions of those who practice the religion of state power.

Podesta’s report and the nature of its recommendations support the argument that this administration, Congress, and the authoritarian national surveillance state feel entitled to all of our information. Geoffrey Stone, one of Obama’s NSA Review Panel members, said as much to me over email too. This is disappointing because many of these people masquerade as being the defenders of justice and righteousness, but are nothing more than arguably the largest perpetrators stealing our Constitutional and natural rights under the guise of positive rights. This is arguably racist and highly discriminatory on a level never before seen in my humble opinion because our digital lives and real lives are effectively one in the same, but are obviously not treated equally. What we are experiencing is modern era Jim Crow laws and regulations aimed directly at our digital lives and thus our real lives. This is not black vs. white though, but Digital vs. Real. People, Governments, Business, etc. should never be able to act with prejudice and discriminate against our digital lives by leveraging our information which directly impacts our real lives. The government views our digital lives and real lives as separate but not equal, despite them being one in the same.  Recently, Dr. Ben Carson persuasively argued the Obama administration and its progressive policies have deteriorated race relations more than any other modern administration. I could not agree more with Dr. Carson.

The uplifting part is that sometimes people or groups of people tell the truth, even if by accident, so in my next post I will illustrate some ways the people and the private sector can take meaningful action to take back and protect their rights.  You need to know and protect thy digital self, because nobody is quite like you.

 

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