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As through a glass darkly


The NSA has been spying on you.  You probably didn’t know it, and if you did nothing wrong, you have nothing to fear, right?

No.  Why?  Becauase 1: it’s a violation of the basic principles of the 4th Amendment (which is being shredded, in lots of way, I’ll be coming back to that).  2:  You don’t know what it might lead to in the future  Diane Feinstein says it’s no big deal, “it’s just metadata”    That it’s just metadata doesn’t make it better.  It might make it worse.  Metadata is data.

One of the things I got some training in, when I was still doing military intelligence was, “traffic analysis”.  What that banal phrase means, in a nutshell, is, “looking at metadata”.  Do you remember Target sending the young woman coupons for prenatal vitamins, and baby things, when she was barely pregnant, and hadn’t told her parents yet?  They did that from metadata.  Metadata mining is why people don’t trust facebook.  Mining a limited set of metadata is what a paper by a couple of people at MIT to determine a way to create a, somewhat, obejective “gaydar“.

It’s also been a lot more than just your phone.

An internal presentation on the Silicon Valley operation, intended for senior analysts in the NSA’s Signals Intelligence Directorate, described the new tool as the most prolific contributor to the President’s Daily Brief, which cited PRISM data in 1,477 articles last year. According to the briefing slides, obtained by The Washington Post, “NSA reporting increasingly relies on PRISM” as its leading source of raw material, accounting for nearly 1 in 7 intelligence reports.

That is a remarkable figure in an agency that measures annual intake in the trillions of communications. It is all the more striking because the NSA, whose lawful mission is foreign intelligence, is reaching deep inside the machinery of American companies that host hundreds of millions of American-held accounts on American soil.

The technology companies, which participate knowingly in PRISM operations, include most of the dominant global players of Silicon Valley. They are listed on a roster that bears their logos in order of entry into the program: “Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.” PalTalk, although much smaller, has hosted significant traffic during the Arab Spring and in the ongoing Syrian civil war.

Dropbox , the cloud storage and synchronization service, is described as “coming soon.

How broad, and how deep, does this collection of data; this unjustified vacuuming of everything, go?  We will probably never know. That’s scary.  Part of why we will never know is the illegal classification of so much of it.  Why do I say illegal?  Because Obama, as with every president in my lifetime has issued an executive order about it (he gets to do that because, technically, he is is the only person who can classify things; everyone else has a delegated authority).

“In no case shall information be classified… in order to: conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency… or prevent or delay the release of information that does not require protection in the interest of the national security.”

Things have been classified because of that.  It’s not that these programs aren’t legitimately classified: if we accept their legality, and the justification for them (I don’t) then classifying them is perfectly reasonable.  But overclassification is rampant, and has been complained of since (at least) 1956.  That is a threat to our security.  It costs a lot of money (as much as $10 billionUS, per year).  It keeps information from moving between agencies.

So what does this mean?  It means we have a problem.  1: The means of oversight aren’t clear.  To go back to the field I was familiar with (investigations of possible espionage against the US Army), when we got information about a US citizen that material was restricted.  Only people involved in the investigation were allowed to see it.  If the investigation hadn’t made those people relevant to the investigation, inside of 90 days, the files had to be purged.  The NSA doesn’t seem to be doing that.  The data center in Utah is designed to maintain huge amounts of information; and we don’t know what the rules are.

Which is a problem.  The Verizon (and we can assume Verizon isn’t the only company in play) campaign is a continuation of George W. Bush’s illegal (retroactively blessed by Congress) wiretapping from at least 2001, to 2007.  The, “oversight” placed on that seems to be token.  The NSA is in a position to make the Stasi look like amateur hour at the Neighborhood Watch.

I’m scared.  I’m scared because one of the other things to happen yesterday was that the Supreme Court created a new sort of test for “reasonable” based not on the effect of the search, but on the way it’s done.

In MARYLAND v. KING the court said that taking DNA isn’t an “intrusive” search, because (unlike a blood test, no skin is broken).  The rationale is specious.

The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody…

When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.
First, “[i]n every criminal case, it is known and must beknown who has been arrested and who is being tried.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. 177, 191 (2004). An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name onthe arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody. “It is a well recognized aspect of criminal conduct that the perpetrator will take unusual steps to conceal not only his conduct, but also his identity.”

That’s bullshit.  The only way DNA is useful is if there is already DNA in the database.  Fingerprints will serve to tie a person to themselves.  They are unique, and we’ve been able to rely on them for more than a century.   What was at stake in the case?  King was arrested, and processed, and his DNA collected: which was then matched to an unsolved crime from six years prior.  From the arguments before the court, and the text of the Maryland law it seems he was charged with the new crime before his conviction.§

Which makes the assertion this is about “verifying the ID of those in custody” even more ridiculous.

Scalia (who, on so many things is a hypocrite, but seems to take the 4th Amendment with some level of consistent interpretation), makes the case that what the Court has done, in this decision, is create a case of, “general warrant”.

At the time of the Founding, Americans despised the British use of so-called “general warrants”—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application. The first Virginia Constitution declared that“general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed,” or to search a person “whose offence is not particularly described and supported by evidence,” “are grievous and oppressive, and ought not be granted.” Va. Declaration of Rights §10 (1776)

He’s right.  The internal evidence of how DNA is used, and what it needed to make it useful shows this.

King was arrested on April 10, 2009, on charges unrelated to the case before us. That same day, April 10, thepolice searched him and seized That same day, April 10, the police searched him and seized the DNA evidence at issue here. What happened next? Reading the Court’s opinion,particularly its insistence that the search was necessary to know “who [had] been arrested,” ante, at 11, one might guess that King’s DNA was swiftly processed and his identity thereby confirmed—perhaps against some master database of known DNA profiles, as is done for fingerprints. After all, was not the suspicionless search here crucial to avoid “inordinate risks for facility staff” or to“existing detainee population,” ante, at 14? Surely, then— surely—the State of Maryland got cracking on those grave risks immediately, by rushing to identify King with his DNA as soon as possible.Nothing could be further from the truth. Maryland officials did not even begin the process of testing King’s DNA that day. Or, actually, the next day. Or the day after that. And that was for a simple reason: Maryland law forbids them to do so. A “DNA sample collected froman individual charged with a crime . . . may not be tested prior to the first scheduled arraignment date.” Md. Pub. Saf. Code Ann. §2–504(d)(1)

So other methods must be considered adequate to verify the ID of persons who are in custody.

Good thing too, since it takes weeks to get a test done, and one of the requirements for using the sample is… identification of to whom it belongs.  Think about it, if the sample weren’t attached to some other identifying method what would it mean?  Nothing.  Which brings us back to the NSA, DNA is metadata, it’s only useful if we can attach it to a person (or, in the case of things like phone records/buying habits, an entity).

So what does this mean?  I don’t know.  I do know that people in Turkey were arrested for tweeting.  How many laws are there about which you don’t know?  What about that Dropbox joining PRISM?  What happens if you send someone a copyrighted image, and the gov’t wants to make you miserable?  They can tell, e.g. Sony, about it, and you get sued.  Given the SCOTUS decision that massive judgements for downloading music are “reasonable”, this isn’t too far-fetched.  In any case the ability to intrude into our lives is present, and right now the gov’t (we all trust them, right) is doing it’s damnedest to exploit it.






§I infer this from “All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice.” p. 7 KING v MARYLAND

2 thoughts on “As through a glass darkly

  1. They are bootstrapping this on to Hiibel, of all cases?!?! Seriously? Bloody hell, all Hiibel held is that you had to identify yourself – that is, very literally, say your name – if there is reason to believe you have or are committing a crime. The threshold is low because the only thing you are required to do is give a name, no more, not even your gov’t issued ID or anything similar. This is like saying you must give fingerprints and family tree under the same facts. Deeply problematic and rather scary, though I suspect many will sigh gratefully that They are making us ‘safer.’

  2. Read this short paper, and the next time someone says “I’ve done nothing wrong, so I have nothing to hide” you can hit ’em right between the eyes:

    Abstract: “When asked about government surveillance and data mining, many people respond by declaring: “I’ve got nothing to hide.” According to the ‘nothing to hide’ argument, there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. The ‘nothing to hide argument’ and its variants are quite prevalent, and thus are worth addressing. In this essay, Solove critiques the ‘nothing to hide argument’ and exposes its faulty underpinnings.”

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