Abuse Of Power: Laws Should Be Designed As If The People We Distrust The Most Are In Power

from the thinking-this-through dept

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There have been a few stories lately that have all combined to make a few key points crystallize in my mind, concerning various legal powers and the way that some people view them. It starts with an excellent article from Trevor Timm in which the title lays out the issue: Imagine Obama's national security policies in Trump's hands. After all, this is the guy who hasn't been shy in promising to settle scores if he's elected.

Trump’s abhorrent daily pronouncements about what he would do as president come at such a rate that we have become numb to them. We’ve lost count of the amount of times he’s claimed he’ll bring back waterboarding, or some forms of torture that are “so much worse” (something that would constitute a war crime). Or that he’ll not only kill terrorists, but members of their families as well – another war crime. (After some backlash for these statements, Trump claimed on Friday that he would still “obey the law”.)

Trump’s list of enemies could make Nixon, who saw no problem in using the NSA to spy on American dissidents and his political opponents, look tame in comparison. While one of the NSA’s mass surveillance programs was curtailed (but not eliminated) by the USA Freedom Act, there remain myriad programs that touch on vast numbers of Americans’ communications. The FBI still has carte blanche to look at NSA’s international intercepts for Americans caught up in its net, and just last week the New York Times reported that the NSA plans to remove key privacy protections from much of its surveillance data, so that it can be shared with other federal agencies without any administrative protections. Are these the types of powers we want in the hands of a Trump administration?

But the larger point of Timm's piece is not so much to freak out about a potential Trump presidency, but rather to highlight the ridiculous hypocrisy of basically every Presidential administration and their own party apparatus and supporters, who freak out about certain laws and powers when the other guy is in power, but gleefully make use of them when they are in power. It's the sort of "benevolent dictator" fallacy, in which people think that it's okay for them to make use of these laws, because surely "my guy" or "my team" won't abuse them and only use them for good purposes. But everyone thinks that -- and eventually the people in power won't be your team. In fact, it may be people who scare you.

Take, for example, the issue of extrajudicial executions via drones ("murder from the sky"). The Obama administration embraced this strategy gleefully, after it was started by the previous administration of George W. Bush. However, once Obama came into power it was expanded massively with no public debate or discussion and, importantly, with no guidelines for how and when it could be used. In fact, somewhat ridiculously underlining the point of this very post, during the heat of the 2012 campaign, when there was a chance that Mitt Romney might beat Obama in the election, the Obama administration finally put together "explicit rules" that would limit when Presidents could use drones to murder people. But once Romney lost, the administration suddenly lost interest in those guidelines. And while a few rules were eventually put in place, they seem to be arbitrarily applied.

This is just one example of why our laws should be designed to function as if the people we trust least are in power. Because eventually, the other side will be in power. And for all the trust you had in your team, think about how someone you don't trust might use it.

And we have plenty of examples of this. Just this weekend, the NY Times had an article about how South Korea has been aggressively using defamation laws to crack down on government dissent:

Last year, the United Nations Human Rights Committee warned against South Korea’s “increasing use of criminal defamation laws to prosecute persons who criticize government action.” Freedom House, a rights group based in Washington, criticized “the increased intimidation of political opponents” under Ms. Park, who took office in 2013.

“The government is especially sensitive about defending the personal reputation of the president,” said Park Kyung-sin, a professor of law at Korea University who has researched the issue.

This is the same South Korea that just embraced a right to be forgotten concept. Just think how that might be abused as well.

And think about South Korea when you hear Donald Trump talk about "opening up" defamation laws.

And, of course, this can apply to lots of other concepts as well. There's been a big push around the world for laws against "hate speech" -- which, in a vacuum, may sound like a good thing. However, what may sound like a good thing, if you assume that "hate speech" will be defined in a reasonable manner, can sound quite different in other contexts. As we've noted, historically, hate speech laws are used most frequently as a way for governments to punish people they don't like. And, just to drive this point home, look at how some people have been claiming that Mitt Romney's anti-Trump speech last week was a form of hate speech:

reminder to people who support hate speech bans: you never know who will be in charge of defining hate speech pic.twitter.com/eVhvmFIi8Z

— Sarah McLaughlin (@sarahemclaugh) March 3, 2016

And, of course, this applies to areas like copyright as well. When I talk about the ways in which copyright can be abused for censorship, many supporters of the copyright system like to mock me, claiming I'm just "supporting piracy" or some sort of nonsense like that. But copyright is frequently and regularly abused to censor people, and with power in the wrong hands it can be abused even further. Remember how Vladimir Putin (who Trump has repeatedly expressed admiration for as a "strong leader, a powerful leader") used copyright law to suppress government dissent, raiding the offices of advocacy groups and opposition publications, claiming they were just there to check their computers for pirated software?

And of course, there's the big debate over encryption and whether or not Apple should be forced to provide the DOJ with the tools to hack its own systems. Are you really comfortable with that kind of power -- to force companies to hack into systems, to do forced updates that secretly remove security features -- in the hands of a President who has stated that those who disagree with him need "to be very careful"?

There are lots of reasons why we should be careful in passing laws -- including potential unintended consequences. But, even more to the point, we should be concerned about how those laws will be used by the people we trust the least. Because these are not theoretical concerns we're talking about. And it's distressing that those in power always seem to argue along with this when they're not in power, but forget it when they are. Remember how the Democrats dropped civil liberties from their official platform in 2012 after being a big part of the platform in 2008? I wonder why...

So, yes, perhaps the example of a possible Trump victory makes this clearer for some:

Guantanamo Bay prison, a symbol of torture and indefinite detention which should have been closed years ago, remains open. While Obama still says he wants to close it, his administration has enshrined the concept of indefinite detention into our system, and no matter who is president next has the opportunity to exploit that. Trump has vowed to expand Guantanamo, and according to a leaked memo obtained by CNN, his campaign even said he would detain American Isis “sympathizers” (whatever that means). This would of course be illegal and unconstitutional in a variety of ways, but given that Gitmo remains open and the last two administrations have faced no consequences for their unprecedented policies, how far could Trump go before he’s stopped?

But it should be a concern for everyone, even when their own friends are in power. Because we should always design laws in a manner that we'll still respect and trust in them even if the people we distrust the most are using them.

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Filed Under: abuse of power, copyright, defamation, donald trump, encryption, laws, politics, power

You Can't Vote Out National Security Bureaucrats: And They, Not Elected Officials, Really Run The Show

from the well,-that's-unfortunate dept

A year ago, we noted a rather odd statement from President Obama, concerning some of the Snowden leaks. He more or less admitted that with each new report in the press, he then had to go ask the NSA what it was up to. That seemed somewhat concerning to us -- suggesting that the administration wasn't actually aware of what the NSA was up to until after it leaked to the press. Combine that with our more recent story of how James Clapper is basically ignoring the substance of President Obama's called for surveillance reforms, and you might begin to wonder who really runs the show when it comes to surveillance. And, indeed, according to a guy who knows quite well, the national security bureaucracy basically calls the shots, and the President has little to no power. That's the basic summary of an interview with Michael Glennon under the title Vote all you want. The secret government won't change in the Boston Globe.

Glennon is the author of a new book called National Security and Double Government, as summarized by the Boston Globe:

Though it’s a bedrock American principle that citizens can steer their own government by electing new officials, Glennon suggests that in practice, much of our government no longer works that way. In a new book, “National Security and Double Government,” he catalogs the ways that the defense and national security apparatus is effectively self-governing, with virtually no accountability, transparency, or checks and balances of any kind. He uses the term “double government”: There’s the one we elect, and then there’s the one behind it, steering huge swaths of policy almost unchecked. Elected officials end up serving as mere cover for the real decisions made by the bureaucracy.

Glennon cites the example of Obama and his team being shocked and angry to discover upon taking office that the military gave them only two options for the war in Afghanistan: The United States could add more troops, or the United States could add a lot more troops. Hemmed in, Obama added 30,000 more troops.

And, yes, of course, there have long been conspiracy theory books about the "shadow government" and the like, but this one's from someone who actually worked on these issues.

He was legal counsel to the Senate Foreign Relations Committee and a consultant to various congressional committees, as well as to the State Department. “National Security and Double Government” comes favorably blurbed by former members of the Defense Department, State Department, White House, and even the CIA. And he’s not a conspiracy theorist: Rather, he sees the problem as one of “smart, hard-working, public-spirited people acting in good faith who are responding to systemic incentives”—without any meaningful oversight to rein them in.

Basically, the story that Glennon describes is sort of an exact replica of the concerns that many people have about how lobbyists push legislators in a particular direction. While many like to ascribe nefarious intent to lobbying efforts, the reality is that oftentimes legislators don't fully understand a particular or specific area, and the people they turn to are the lobbyists. And, to some extent that's reasonable. You'd rather that regulators and legislators actually are informed about the issues they're making decisions on, but too often they don't understand those areas at all. The problem is that the "experts" who are readily available aren't unbiased purveyors of truth, but are those who have a very specific agenda.

The same thing is true of government bureaucrats within the intelligence community. They're going to advise elected officials in ways that continually push and expand their own capabilities and powers, rather than limit them. And while what happens with lobbyists is often not directly publicly viewable, there can at least be some public recognition of policies and regulations that come out of those discussions. When it comes to the intelligence community, many of the results are kept entirely secret, so there's basically no pushback and no "other side" heard. The intelligence community acts as secret lobbyists for the expansion of the surveillance state, and the government basically says "okay." And that doesn't even begin to go down the road of recognizing how much of this "expansion" of the surveillance state also happens to massively benefit the private corporations that former intelligence officials jump to right after leaving the government. Glennon covers all that and more:

It hasn’t been a conscious decision....Members of Congress are generalists and need to defer to experts within the national security realm, as elsewhere. They are particularly concerned about being caught out on a limb having made a wrong judgment about national security and tend, therefore, to defer to experts, who tend to exaggerate threats. The courts similarly tend to defer to the expertise of the network that defines national security policy.

The presidency itself is not a top-down institution, as many people in the public believe, headed by a president who gives orders and causes the bureaucracy to click its heels and salute. National security policy actually bubbles up from within the bureaucracy. Many of the more controversial policies, from the mining of Nicaragua’s harbors to the NSA surveillance program, originated within the bureaucracy. John Kerry was not exaggerating when he said that some of those programs are “on autopilot.”

And the end result is basically that elected officials don't really have the power to do anything, even if they're technically "in power."

I think the American people are deluded... that the institutions that provide the public face actually set American national security policy. They believe that when they vote for a president or member of Congress or succeed in bringing a case before the courts, that policy is going to change. Now, there are many counter-examples in which these branches do affect policy.... But the larger picture is still true—policy by and large in the national security realm is made by the concealed institutions.

All the more reason why Snowden's revelations were so important. They've helped expose just a tiny fraction of these policies being decided in near total secrecy by the intelligence community to further its own agenda -- leading to some much needed sunlight, finally forcing at least a tiny bit of debate into that corner of the world that thrives on being able to expand in secret.

Filed Under: bureaucrats, michael glennon, national security, nsa, policy, power, surveillance

Interconnection: Or How Big Broadband Kills Net Neutrality Without Violating 'Net Neutrality'

from the routing-around-the-problem dept

For years now, every time the net neutrality debate starts getting really confusing, Tim Lee comes along and puts it all into useful perspective. Six years ago, there was his exceptionally useful position paper on net neutrality for the Cato Institute. A couple years ago, he wrote another great piece for National Affairs magazine that deftly explained why the internet wasn't competitive and why that's a problem. Now working for Vox, he's put together a great piece that explains the technical difference between the interconnection fights and the net neutrality battle -- but also explains how the end result is basically the same.

There has certainly been plenty of discussion about Netflix's recent interconnection deals -- starting with Comcast back in February, and Verizon just recently. As we noted back in February about the Comcast/Netflix deal, it wasn't really a net neutrality issue, because it was about interconnection, but we were equally worried about how this really demonstrated the monopsony power of major broadband providers. Lee's latest Vox piece dives much deeper into that distinction, and highlights some key insights:

1. These are not technically "net neutrality" violations. The animated graphics in the Vox piece do a great job explaining why. Just go look.
2. But that might not matter, because the end result is basically the same.
3. Because of that, this is a really effective way for the big broadband providers to pay lip service to net neutrality, while getting exactly what they want anyway.
4. The real problem, as always, is too much market power by the big broadband players, allowing them to do an "evil" thing almost no one thought they would do.

To explain the first point, you basically have to recognize that with the interconnection issue, Comcast and others aren't technically "favoring" Netflix (or anyone) on their own network, but are rather setting up deals that favor that content off their network, but right up until it hits the last mile. And they're doing this by purposely letting their connection to other transit providers pile up. And that's why the end result is the same, but allows Comcast to technically be correct that they're not violating net neutrality, while creating the identical end result for most of the major players:

Comcast says it wasn't deliberately degrading the performance of Netflix traffic, which would have been a violation of network neutrality. But that implies that every website that used the same transit provider as Netflix was experiencing similar performance problems. That's obviously bad for Comcast customers, and it's also bad for startups that are trying to become the next YouTube or Netflix. If the only way to get excellent service on America's largest broadband networks is to negotiate a private connection directly to those networks, smaller companies with less cash and fewer lawyers are going to be at a competitive disadvantage.

In other words, those public transit links that were providing Netflix with subpar service could become the de facto slow lanes on Comcast's network, while private, direct connections could become the fast lane.

It's a neat trick. Comcast doesn't have to favor or disfavor any particular traffic. It just conveniently neglects to do the most basic things to make sure traffic flows smoothly from the various transit players -- and then offers to negotiate direct deals with big players to bypass third-party transit providers. Thus, it's not "favoring" anyone on its network. It's just creating a situation that favors those who pay up to access its network.

And, again, the FCC doesn't seem to recognize this at all. Tom Wheeler has been fairly explicit that he doesn't view the interconnection issue as relevant to this discussion yet. And the various rules that are being fought over won't have any impact one way or the other on interconnection. And, as Lee's article describes, part of the reason all the commotion has been focused "over there" on "net neutrality" rather than "over here" on "interconnection" is because the very idea of Comcast doing what Comcast has been doing these past few years just seemed impossible to consider not too long ago:

One reason for this is that Comcast's hardball tactics are relatively new. According to Wu, "we never thought much about" interconnection issues when the concept of network neutrality was developed in 2002. That was "mainly because it seemed like, 'Why would anyone do that?'" It was generally assumed that consumer ISPs would always buy enough transit to serve their customers' needs.

Wu worked in Silicon Valley prior to 2002. And he says he remembers that "solving a joint technical challenge" — that is, making the internet work as well as possible — "was the predominant motivation of the engineers." That's still true in most parts of the internet. But some of the largest ISPs now seem to view declining network performance not as a technical problem to be solved so much as a source of leverage in business negotiations.

That last line is worth repeating: Big ISPs view declining network performance as a source of leverage, rather than a technical problem.

And the only reason they can do this is because of the tremendous market power they have. And, once again, as we've argued for over a decade, that demonstrates the real heart of the problem: the lack of real competition in the broadband space. Either way, it's yet another must read if you're trying to understand the state of play today.

Filed Under: broadband, fast lanes, interconnection, monopoly power, net neutrality, power
Companies: cogent, comcast, level 3, netflix

The Corruption Of Power: President Obama Trusts Himself Not To Abuse NSA Info

from the it's-always-the-other-guy dept

We've pointed out in the past that President Obama's views on the surveillance state shifted completely from when he was Senator to when he was President. As Senator, he supported a bunch of reforms that are very much like the ones his panel have suggested -- and which he's about to ignore. The NY Times has a long article talking about President Obama's path from an NSA critic to a supporter, and this is the key line, delivered by a nameless "former aide:"

...he trusts himself to use these powers more than he did the Bush administration.

This is not the first time we've seen this attitude of "I'm trustworthy, so it's okay" from President Obama. Remember, back during the last election, President Obama instructed his staff to come up with explicit rules concerning the use of killer drones -- rules that the military under Obama did not have -- because he was worried how a President like Romney might use the program. Of course, once it became clear that Obama would win re-election, those plans to create rules were put on the shelf.

This is the corruption of power. It's a belief that we don't need explicit rules and protections because "I'm trustworthy and I won't abuse this stuff." But just about everyone thinks of themselves as trustworthy -- and then an extreme situation comes up... and they abuse that trust just a little bit, because they can, and, hey, they're trustworthy. And then they abuse it some more. And some more. Or, the next guy abuses it. And the next guy abuses it some more, because there's a precedent set. If you're really trustworthy on issues like this, then you would have an even stronger support for the rules, because you know you'll never abuse them. It's actually only if you're in power and you're not trustworthy that you fear such rules.

The Times coverage also suggests, as President Obama himself has, that the other big difference is that once he was in power, he "better understood the threats," as well as how these programs protected us. But that position is undermined by much of the rest of the article, which suggests that the reality is that, once in power, President Obama just didn't care any more:

Feeling little pressure to curb the security agencies, Mr. Obama largely left them alone until Mr. Snowden began disclosing secret programs last year. Mr. Obama was angry at the revelations, privately excoriating Mr. Snowden as a self-important narcissist who had not thought through the consequences of his actions.

He was surprised at the uproar that ensued, advisers said, particularly that so many Americans did not trust him, much less trust the oversight provided by the intelligence court and Congress. As more secrets spilled out, though, aides said even Mr. Obama was chagrined. They said he was exercised to learn that the mobile phone of Chancellor Angela Merkel of Germany was being tapped.

This fits with earlier claims we've heard about how President Obama keeps finding out about what the NSA is doing from the Snowden leaks, and then having to go ask the NSA what's really going on. The idea that the President didn't know that the NSA was tracking the phone of the leader of one of our largest allies suggests a complete disinterest and hands off approach to the surveillance state -- which is another recipe for allowing widespread abuses.

Similarly, as we were among the first to point out, the FISC ruling that noted the NSA had abused section 215 of the PATRIOT Act for years, came just weeks after President Obama took power. He claims that as he studied the programs, he found that they were important and vital and weren't being abused. Yet, just weeks after he became President the court in charge of oversight found exactly the opposite. You'd think that if he were actually concerned about the surveillance state, he would have taken an interest. But he didn't:

But when Mr. Obama was briefed, the case did not stir consternation. The president’s team instructed the Justice Department to fix the problem, but “this was not a central concern and he was very quick in knowing how to deal with it,” said a former administration official.

Because even if the program wasn't in line, it's okay, because, hey, the Preisdent is a "trustworthy guy." And that's exactly how you end up with an abused and overreaching surveillance state. I'm sure that the President believes he is a trustworthy guy. And there's plenty of truth to that old line that "we judge ourselves by our intentions, and others by their actions." He may have the best of intentions, but when you're in charge of the most powerful government in the world, being a "trustworthy guy" doesn't cut it. The corruption of power is too clear and too easy. There needs to be real and significant controls, and not just because you think you won't abuse the system -- or because the guys before or after you might. There need to be real and serious controls because the natural direction of a surveillance state is to abuse civil liberties, whether intended or not.

The president's statements when he was a Senator may have just been political posturing. But now he's President and all he's done has shown that he doesn't understand how a true leader handles such situations. Instead, he's succumbed to the corruption of power.

Filed Under: barack obama, corruption, drones, nsa, power, surveillance

NSA Complained It Wasn't Able To Spy Enough; Sought To Broaden Its Power

from the no,-seriously dept

Late on Friday, the NY Times reported on more from the Ed Snowden documents, highlighting how the NSA was whining internally that it didn't have enough power, and outlining how it planned to get even more. Because, apparently, spying on nearly everyone just wasn't enough. No, the NSA was fairly explicit in wanting to get rid of the "nearly" qualifier in that last sentence. Its goal was to be able to spy on "anyone, anytime, anywhere" and it didn't want anything like pesky little "laws" or "civil liberties" to get in the way of that goal.

Written as an agency mission statement with broad goals, the five-page document said that existing American laws were not adequate to meet the needs of the N.S.A. to conduct broad surveillance in what it cited as “the golden age of Sigint,” or signals intelligence. “The interpretation and guidelines for applying our authorities, and in some cases the authorities themselves, have not kept pace with the complexity of the technology and target environments, or the operational expectations levied on N.S.A.’s mission,” the document concluded.

Using sweeping language, the paper also outlined some of the agency’s other ambitions. They included defeating the cybersecurity practices of adversaries in order to acquire the data the agency needs from “anyone, anytime, anywhere.” The agency also said it would try to decrypt or bypass codes that keep communications secret by influencing “the global commercial encryption market through commercial relationships,” human spies and intelligence partners in other countries. It also talked of the need to “revolutionize” analysis of its vast collections of data to “radically increase operational impact.”

Once again, we see that the claims from the NSA that it's concerned about "protecting" people from "cybersecurity" issues are completely bogus. The goal is and has always been to weaken cybersecurity wherever possible. There's much more in the article about the NSA's plans and capabilities, but those two paragraphs above seem to make the key points: the NSA has a ton of power and is constantly scheming to get more, even if laws are currently blocking that ability. Furthermore, it wants to make us all less safe in its efforts to reach that goal.

Filed Under: nsa, power, surveillance

DailyDirt: Nuclear Batteries Last A Long Time

from the urs-we-dig-up dept

Battery technology is a significant bottleneck for a lot of gadgets, and the limitations of batteries even prevent the widespread adoption of renewable energy solutions. Storing energy efficiently and safely is just a difficult problem. Quite a few energy storage solutions have been proposed, ranging from giant flywheels to burying pressurized air. One far out option that doesn't get much attention is the nuclear battery, so here are just a few links on this obscure technology with a decently long half-life.

• Physicists have successfully captured and observed ions from an unstable isotope of bismuth which could help predict further nuclear reactions and lead to a practical nuclear battery. Being able to control a trapped form of nuclear energy is critical to the development of nuclear batteries that could hold a million times more energy than a conventional battery. [url]
• Both of the Voyager spacecrafts are powered by radioisotope thermionic generators that have lasted for decades without any moving parts or maintenance. No one is going to start using the heat of decaying plutonium-238 for powering any terrestrial gadgets any time soon, but these power plants are definitely reliable. [url]
• A thumb-sized battery called the NanoTritium could last 20 years or more, but it only delivers nanowatts of power. This betavoltaic power source will be commercially available, but it won't be cheap at over $1,000 per battery. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: battery, bismuth, energy, isotope, nanotritium, nuclear, plutonium, power, thermionic generator, tritium, voyager

Why The NSA Must Be Reined In -- For Democracy's Sake

from the mission-creep dept

In the wake of the continuing leaks about the NSA's activities, most commentators are understandably still trying to get to grips with the enormity of what has been happening. But John Naughton, professor of the public understanding of technology at the UK's Open University, tackles a very different question on his blog: what is likely to happen in the future, if things carry on as they are?

Naughton notes that the NSA's mission statement includes the following phrase: "to gain a decision advantage for the Nation and our allies under all circumstances." "Under all circumstances" means that as the Internet grows -- and as we know, it is currently growing rapidly -- so the NSA will naturally ask for resources to allow it to do tomorrow what it is doing today: monitoring more or less everything that happens online. Naughton then asks where that might lead if the political climate in the US remains sufficiently favorable to the NSA that it does, indeed, get those resources:

The obvious conclusion therefore, is that unless some constraints on its growth materialise, the NSA will continue to expand. It currently has 35,000 employees. How many will it have in ten years' time? Who can say: 50,000, maybe? Maybe even more? So we're confronted with the likelihood of the growth of a bureaucratic monster.

How will such a body be subjected to democratic oversight and control? Let me rephrase that: can such a monster be subjected to democratic control?

Although optimists might answer 'yes', Naughton points to the FBI as an example of what has already happened in this area:

those with long memories recall the fear and loathing that J. Edgar Hoover, the founder -- and long-term (48 years) Director -- of the FBI aroused in important segments of the American polity. The relatively restrained Wikipedia entry for him claims that even US presidents feared him and quotes Harry Truman as saying that "Hoover transformed the FBI into his private secret police force". "We want no Gestapo or secret police", Truman is reported as saying. "FBI is tending in that direction. They are dabbling in sex-life scandals and plain blackmail. J. Edgar Hoover would give his right eye to take over, and all congressmen and senators are afraid of him."

He then goes on to draw the obvious parallel with a possible tomorrow:

Now spool forward a decade or so and imagine a Director of the NSA, a charismatic 'securocrat' imbued with a mission to protect the United States from terrorists and whatever other threats happen to be current at the time. He (or she) has 50,000+ operatives who have access to every email, clickstream log, text message, phone call and social-networking post that every legislator has ever made. S/he is a keystroke away from summoning up cellphone location logs showing every trip a lawmaker has made, from teenager-hood onwards, every credit- and debit-card payment. Everything.

And then tell me that lawmakers will not be as scared of that person as their predecessors were of Hoover.

Think that could never happen? Are we sure...?

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: abuse, corruption, democracy, nsa, nsa surveillance, power, surveillance

The Trustworthy Government Officials Delusion: Eventually Any Program Will Be Abused

from the not-everyone-is-trustworthy dept

I'd been meaning to write up a post like this for a few weeks, and when Pro Publica wrote about why it was publishing details of the latest Ed Snowden leaks concerning the feds ability to break encryption, they highlighted the exact point I was thinking about in talking about the nature of an untrustworthy government:

American history is replete with examples of the dangers of unchecked power operating in secret. Richard Nixon, for instance, was twice elected president of this country. He tried to subvert law enforcement, intelligence and other agencies for political purposes, and was more than willing to violate laws in the process. Such a person could come to power again. We need a system that can withstand such challenges. That system requires public knowledge of the power the government possesses.

To date, nearly every single defense of the NSA's pervasive surveillance powers, whether it comes from President Obama, James Clapper, Keith Alexander, Dianne Feinstein or Mike Rogers all seems premised on denying this basic fact. They're all focused on how hard the people working on these programs work to stay within the law and how they're designed with the best intentions in mind. In fact, the defenses seem almost entirely premised on this point: "we're the good guys, so you can trust us not to do the wrong thing here."

There's something about historical evil that makes people think that it won't happen again. I know it's a mental bias that I have all the time. We hear stories of the atrocities of Adolf Hitler, the excessive attacks of Joseph McCarthy, the pervasive surveillance of J. Edgar Hoover, and the paranoid political opportunism of Richard Nixon and we have a natural tendency and bias to think "wow, those guys were bad, but that was then -- isn't it great that we live in a time after those guys are gone?" The things that some of those people did were considered so bad, we have a hard time believing that it could happen again. After all we "learned our lesson" and we're in a new era.

But, of course, that's wrong. It's silly and naive.

These things didn't happen long ago at all.

People do bad things. And they will continue to do bad things. That doesn't mean that people are necessarily evil -- most are not. In fact, many who end up doing bad things start out with the best of intentions (and maybe believe to the end that they were following through on those intentions). But, temptation and power are strong drivers of behavior. And eventually abuse and excess are bound to happen.

Even if we assume that everyone working on these programs today is a wonderful soul with the best of intentions (a proposition that is unlikely, but let's go with it), there is simply no way that this will always be the case. This is what is leading to the miscommunication between defenders of these programs and those who fear them. Not all of us automatically assume that those in charge have nefarious intent (and, yes, I know some readers here do assume that), but we recognize that sooner or later, those with nefarious intent will have access and will abuse it. That's just the nature of the beast.

So, when President Obama, James Clapper, Keith Alexander, Dianne Feinstein or Mike Rogers argue "trust us," with these programs, that's really not the point. Even if we trust them, we have no way of knowing if we can or should trust the next guy or the guy after that. The only way -- the only way -- to make sure such programs won't be abused is to build programs that have real public and open oversight. And that's what the defenders of these programs continue to fight back against. And that's the problem.

Filed Under: abuse, corruption, nsa, nsa surveillance, politicians, power, surveillance