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View Diary: What If You Pulled Back the Curtain and Found a Real Wizard? (181 comments)

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  •  I couldn't disagree more. (3+ / 0-)
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    Tortmaster, kharma, RenMin

    After walking us through the material of the recent FOIA release and doing a half-decent job of trying to be dispassionate about it, which I respect, you finally end up with this totally bullshit conclusion:

    What I believe all of this shows is that we have a system of checks and balances in place, that the privacy of Americans is paramount, but there is also a Governmental interest in obtaining foreign intelligence, and, most importantly, that the Government cannot unlock any chest of information unless they present a key that protects the rights of Americans.
    And I suspect that you actually believe that the FOIA proves that when it does no such thing.  You probably believe that because this DOES show some kind of system at work, but NOT that the system is sound nor that it protects the privacy of Americans, nor that it is paramount.  

    Sanford, Florida has a system of laws that prevent murder and there are a system of safeguards to prevent innocent teenagers from being murdered without just cause, and it works, because only the people that George Zimerman is legally allowed to kill are permitted to be murdered.  But that's not a system that protects the people, nor is it one that makes the rights of the victims paramount, nor is it a sound system.  It's just a sign of some kind of underlying pathological system.  

    At least in Sanford's case, we are allowed to know when Zimmerman kills people and see how the court processes his totally lawful non-arrest and non-conviction and pull our hair out in frustration and yell HELL NO.  We don't have to wait for whistleblowers to destroy their lives leaking incomplete information to the press about what goes on in cases like Zimmerman.  It's all above board.

    Here's my biggest beef about the presentation you make:

    This is the Court going through the proposed minimization measures the Government has said it would apply to minimize the likelihood of an invasion of privacy.
    There are underlying assumptions in the language used here that distort the meaning of "invasion of privacy."  First of all, almost all the "safeguards" we are discussing are safeguards to keep individual "NSA analysts" from using the information the NSA has already collected in a manner that is outside the scope of what they permit NSA analysts to do.  For isntance, the suggestion (this was comical) of having a big warning banner on the software, shaking a finger at them and telling them to not misuse it.

    But I don't think I care that much about individual NSA analysts doing things their boss disapproves of.  I'm not that concerned some rogue analyst is going to invade my privacy by selling my private emails to Entertainment Tonight.  That's an issue of concern, but it's almost TRIVIAL in the broader context of the government itself, not a few rogues, invading our privacy.  That raises the issues of just how reliable the NSA's bosses are to not insist that they spy on people inappropriately, and it raises the issue of whether the FISA court itself really has a proper grounding in what should constitute a valid target of domestic spying.

    For instance, let's go back and look at that treasure chest for a moment.  Stealing your graphic:

    We might retitle this, instead of just "Top Secret!", to "PRIVATE INFORMATION OF AMERICAN CITIZENS, INCLUDING JOURNALISTS, POLITICAL DISSIDENTS, AND ELECTED OFFICIALS THAT THE NSA HAS SECRETLY COLLECTED."

    Normally the "including" part would be obvious as soon as you said American citizens, but I think it's clarifying to explicitly list them that way.  It illustrates the danger of that chest's existence.

    The FOIA request shows that there are "minimization" procedures applied to how individual analysts are supposed to query what is in this database of what I consider ill-gotten goods, and your diary suggests that those minimizations are protecting our privacy.  I say our privacy is already invaded because THEY HAVE THAT FUCKING CHEST IN THE FIRST PLACE.

    Imagine if you had a photoalbum of pictures of my wife in the shower that you collected while doing some other project.  And you put restrictions on how your friends can open the book and look at individual pictures.  Does the invasion of my wife's privacy occur at the moment a friend disregards the restrictions to look at an individual picture? Doesn't the real invasion of privacy occur at the moment at which you take and collect the pictures and put them in an album?  

    To me, the rules you put on the album's usage are more of an insult than the prospect of the album's misuse.  The album IS the misuse.  And the treasure chest above IS the misuse.  Everything else is just aggravation.

    So now we're probably going to be forced to resort to arguments along the lines of, "Well, we have to have chests like that because of ticking time bombs, etc."  And I say, no, we don't have to.  That's the kind of argument that leads to a creeping police state.  We existed for two hundred years as a country without this technology to protect ourselves, and we did a pretty damn good job for the most part.  We're still here.  This is unnecessary and it endangers the fabric of our democracy.

    •  I'll respond tomorrow. (0+ / 0-)

      Got to call it a night, Dumbo.

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Thu Aug 22, 2013 at 11:14:18 PM PDT

      [ Parent ]

    •  See now this is when we ... (0+ / 0-)

      ... get the best of Dumbo:

      Imagine if you had a photoalbum of pictures of my wife in the shower that you collected while doing some other project.  And you put restrictions on how your friends can open the book and look at individual pictures.  Does the invasion of my wife's privacy occur at the moment a friend disregards the restrictions to look at an individual picture? Doesn't the real invasion of privacy occur at the moment at which you take and collect the pictures and put them in an album?
      That's excellent law professor Socratic questioning. From my take on the opinion, the rules against content (i.e. the actual "pictures" in your hypothetical) are exponentially stricter than the rules for metadata (where or when pictures taken). The Government first has to devise the best possible ways not to capture content. Secondly, the Government has to destroy US content whenever possible unless it (a) is a direct communication to a surveillance target or (b) the threat of imminent death is involved. So, instead of pictures of your wife, all my friends would get to see is:
          Picture #1                Picture #2
      Image destroyed     Image destroyed

      [or]

           Picture #1                 Picture #2
      Taken on 1.12.12       Taken on 3.15.12  [but no pics]

      On another note, you provide this, Dumbo:
      First of all, almost all the "safeguards" we are discussing are safeguards to keep individual "NSA analysts" from using the information the NSA has already collected in a manner that is outside the scope of what they permit NSA analysts to do.
      That is not my opinion at all. Yes, there are a ton of "on-the-job" safeguards that are necessarily spelled out. I think you probably find the same thing in the Post Office dealing with letters, why you can't open them, what happens to you when you open them, and how you can't steal the customer's Playboy, and so on. They are banal but necessary.

      I see much more than that, though, including fully developed legal standards, the application of legal precedent, a judge who gave real push back to the Government (even though the judge had every right to believe that his opinion would be "Classified: TOP SECRET" for the next 70+ years and not available to the public during the rest of his lifetime), a system of "internal whistleblowing" in the NSA that seems to be functioning well as the Government is turning in potential problems, a proactive legal procedure that requires the Government to prove, before it can implement a specific program, that what it plans to do is legal and constitutional, a certification and re-certification process that requires the Government to stay on its constitutional toes regarding every surveillance data program, internal NSA audits, Inspectors General, the power of a judge to order the Governement not to do something, the power of criminal contempt (which was not needed in this case, but still exists), the power of the court to order the Government's appearance and briefing of issues, and to require sworn affidavits from the heads of the CIA, the FBI and the NSA, the application of the regulations that Attorney General Eric Holder wrote, a system of judicial oversight that is so privacy- and Fourth Amendment-centric that all the terms and identifiers are shaped by privacy concerns (i.e. "minimization," "retention" and "targeting."), Congressional oversight and, most importantly, a great deal of professionalism evidenced in the opinion, which shows not only knowledge and understanding, but the care taken to get things right.

      Finally, you wrote:

      So now we're probably going to be forced to resort to arguments along the lines of, "Well, we have to have chests like that because of ticking time bombs, etc."  And I say, no, we don't have to.  That's the kind of argument that leads to a creeping police state.  We existed for two hundred years as a country without this technology to protect ourselves, and we did a pretty damn good job for the most part.  We're still here.  This is unnecessary and it endangers the fabric of our democracy.
      I think we can agree that we need the chests that contain solely international communications, can't we, Dumbo? Yes, we existed two hundred years without them, but times change, technology advances, both our's and our potential enemies'. My sense is that almost all of this stuff has been done for decades and some of it for a century or more. Our Government has always had secrets, it has always spied on other countries, it has always used "secret" hearings to flesh out warrants and surveillance, it has always had "secret" rulings on classified programs or "secret" hearings that implicate, in one way or another, classified information, and it has always had three branches of Government to provide oversight and a Constitution to present difficult tests, and we are still here after over 200 years.  

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Fri Aug 23, 2013 at 11:39:30 AM PDT

      [ Parent ]

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