Chicago Law Professor Claims No Privacy In Your Emails, As Long As The Content Isn't Used To Detain Or Harass You

from the oh-really? dept

Eric Posner, a law professor in Chicago and a full-blown supporter of extreme authoritarian governments (he's even written a book about why the US presidency needs more power and less respect for the Constitutional separation of powers), is, not surprisingly, a big fan of the NSA's surveillance efforts. In the past, he's mocked Snowden and Manning, and talked up why a government that keeps secrets is better than one that's actually accountable to its public. In other words, he's the perfect stooge to try to come up with a justification for Rep. Mike Rogers' ridiculous claims that your privacy isn't violated if you don't know about it.

His latest article isn't directly a justification for that statement -- in fact, it doesn't even mention it -- but it's clearly cut from the same cloth. He makes the argument that the NSA should keep spying on all foreigners in part because they spy on us (and also because he thinks we're good at it). However, he also has a rather unique interpretation of privacy:

Mass surveillance—where emails and other communications are vacuumed up, stored in databases, and then searched for keywords—doesn’t harm anyone in itself. The problem only arises when the information is used to detain, interrogate, or harass people.

He's using this bizarre and laughable line of argument to suggest that it's okay when governments spy on citizens in other countries because their "intelligence agents do not have the time or inclination to harass random Americans, nor the capability as long as Americans remain in the United States." So, in his mind: no privacy violation happens.

He doubles down on this thinking later, arguing again that if there's no known "harm" to the individual, there's no privacy issue at all.

Suppose that the NSA collects the emails of foreigners and conducts searches of them for keywords. Occasionally a false positive turns up, and an analyst reads someone’s email to his lover, therapist, or doctor, ascertains that the email contains no information that identifies terrorists or other security threats, and deletes it. The writer of the email never finds out, and the analyst of course has no idea who this person is. Has a human right been violated? It is hard to identify an affront to human dignity, or even a harm, any more than if a police officer overhears a snatch of personal conversation on the bus.

Of course, how hard is it to reword that paragraph just slightly, to demonstrate the insanity of Posner's claim?

Suppose that some hackers collect the emails of Eric Posner, and conducts searches of them for keywords. Occasionally a really embarrassing one turns up, and the hacker reads about Posner's sexual proclivities, financial difficulties, medical problems or similar such things, ascertains that the email contains no information that identifies crimes that Posner is planning to commit and deletes it. Or maybe he saves it for use at a later date. Or to share with a friend. Or a lot of friends. Posner never finds out, and even though the hacker knows who Posner is, he'll never see him in person. Has a human right been violated? It is hard to identify an affront to human dignity, or even a harm, any more than if a police officer overhears Eric Posner talking on a bus.

Posner's basic assumption is flat out crazy. He's arguing that there's no privacy violation until something bad happens with the information, not when it was seized, and not even when it was perused by human eyes -- but only when something nebulously bad happens with it. That makes no sense. The violation comes much earlier. There is real harm in having your information exposed, even if you don't know about it.

Beyond the fact that Posner is simply wrong about when the privacy violation occurs, even if we accept his wacky argument, he's still wrong. That's because he's making two giant assumptions. First, that such information isn't abused. He pretends that "national borders" protect spying on foreigners because you can't do something legally to a person in another country. I would imagine that people killed by US drone strikes might disagree with that assessment. He also argues it's unlikely that there would be many abuses of this information, because any abuses would harm the spying country and its spies once they came out. Pretty much all of civilized human history suggests that's wrong. Give people power, as Posner is aching to do, and they abuse it. Over and over again. But, I guess he's okay with that, just as long as he never finds out about it. Dictatorships and ignorance are bliss!

Filed Under: emails, eric posner, nsa, privacy, surveillance

NSA: Sure We Can Search Your Emails, But Not Ours

from the facepalm dept

The NSA. They're the no-such-agency with the time-honored tradition of looking through the metadata we all leave behind, like the scum-trail of a slug. Also, our emails, social media communications, recipe exchanges, and those obituaries we write up for our enemies in nearly-sexual anticipation of their demise (editor's note: damn it, Timothy, nobody does that but you!). They have the kind of technological hardware and software that would make an IT admin's pants explode. They can search through approximately all the stuff, ever, anywhere, to root out terrorist plots and reality TV spoilers.

But you want them to find one of their own internal emails? That's just crazy-talk, apparently. This, according to ProPublica's Justin Elliot:

I filed a request last week for emails between NSA employees and employees of the National Geographic Channel over a specific time period. The TV station had aired a friendly documentary on the NSA and I want to better understand the agency's public-relations efforts. A few days after filing the request, Blacker called, asking me to narrow my request since the FOIA office can search emails only “person by person," rather than in bulk. The NSA has more than 30,000 employees.

"There's no central method to search an email at this time with the way our records are set up, unfortunately," NSA Freedom of Information Act officer Cindy Blacker told me last week.

I know, I know. you're thinking, "Will my insurance cover a broken, face-palmed nose?" But surely there's an explanation for this. Let's think about it logically. The NSA is essentially a spy organization. They deal in lots of classified stuff and they probably send a lot of information that is classified to one another. After all, they don't have to worry about being spied on, since they're doing the spying, follow? So, they set up a system, something like an ultra-awesome Mission Impossible platform, where searching for emails between employees is impossible, because it's been designed to be impossible. Got it? This is all part of the system, a way to keep information privileged. It's not ineptitude, they're just guarding secrets, and that's why the FOIA request can't be fulfilled. Right, Cindy?

The system is “a little antiquated and archaic," she added.

Well, slap a puppy, that's just unbelievable. And I mean that in every sense of the word. I don't believe it. The NSA can likely tell me how many emails I've sent to whom and about what subjects, but it can't find any of its own internal emails via the kind of search any competent IT manager could do in his/her sleep? I literally don't believe that. Neither does anyone else concerned, apparently.

“It’s just baffling,” says Mark Caramanica of the Reporters Committee for Freedom of the Press. “This is an agency that’s charged with monitoring millions of communications globally and they can’t even track their own internal communications in response to a FOIA request.”

I think the truth is much closer to they won't rather than can't. But, hey, what do I know?

Filed Under: emails, foia, nsa, nsa surveillance

The War On Journalists: DOJ Claimed Fox News Reporter Was An 'Aider, Abettor, Co-Conspirator' With Leaker

from the wow dept

Following the DOJ's brazen collection of info on AP reporter phone calls, we noted that it was not the first time the DOJ had been overly aggressive in going after reporters. Now, the Washington Post has another horrifying story, talking about the DOJ's investigation into a leak from the State Department to Fox News concerning classified info on North Korea. That investigation resulted in charges against Stephen Jin-Woo Kim, a State Department security adviser, but the investigation included heavy surveillance of James Rosen, the Fox News reporter. They obtained his phone records, security-badge data and email exchanges. In order to get all this, they claimed that Rosen wasn't just a reporter, but "an aider and abettor and/or co-conspirator" in the crime itself. For doing basic reporting.

By now it should be abundantly clear that this has little to do with protecting national security, and everything to do with a war on investigative reporting about the federal government. Almost everything seems to be designed to threaten reporters, and to put the fear of the federal government into any whistle blower who might have information to pass on to a reporter. As people have pointed out, what Rosen did in this case is what any national security reporter does all the time. Others have pointed out that this shatters the basic concept that those who report on the news are protected by the First Amendment in doing so.

The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime. (There is no allegation that Mr. Rosen bribed, threatened or coerced anyone to gain the disclosure of restricted information.)

And, not surprisingly, this tactic of going to war with reporters appears to be working.

Mark Mazzetti, who covers national security for the New York Times — one of several leading investigative reporters I reached out to today — says he is experiencing a greater reluctance on the part of sources to talk to him.

"There's no question that this has a chilling effect," Mazzetti said. "People who have talked in the past are less willing to talk now. Everyone is worried about communication and how to communicate, and [asking if there] is there any method of communication that is not being monitored. It's got people on both sides — the reporter and source side — pretty concerned."

The end result, of course, is less ability to keep government abuses -- of which there appear to be many -- in check.

Filed Under: abettor, aider, co-conspirator, doj, emails, fox news, intimidation, james rosen, jin-woo kim, journalism, leaks, subpoena

Leaked Memo Confirms Apple, Nokia & RIM Gave Indian Gov't Backdoors

from the though,-that-should-have-been-known-already dept

Way back in the beginning of 2008, we wrote about how the Indian government was demanding that various mobile suppliers provide backdoors so it could intercept emails and text messages. In 2010, we wrote about further demands to spy on Gmail and Skype. Finally, at the end of 2010, the fact that various providers were providing backdoors to the Indian government was effectively revealed when the government complained that RIM's backdoor didn't really reveal everything. So, I'm not entirely sure why people are surprised that a leaked memo has revealed that at least Apple, Nokia and RIM all provided the Indian government with backdoors, and those are being used regularly in a surveillance dragnet.

Where it gets potentially more interesting is the report that the government then used such access to intercept emails from US government officials, including the "US-China Economic and Security Review Commission" -- "a U.S. government body with a mandate to monitor, investigate and report to Congress on 'the national security implications of the bilateral trade and economic relationship' between the U.S. and China." Kinda says something when the US commission on security issues can't even secure their own email from snooping foreign governments, huh?

Filed Under: backdoors, emails, india, privacy, security
Companies: apple, nokia, rim

Angry Emails From Student To Professor Protected As Free Speech

from the good-news dept

Last year, we covered a really bad ruling in Nebraska, involving a student who sent some angry, obnoxious, profanity-laden emails to a professor he disagreed with politically, accusing him of being a traitor and threatening to fight him. Beyond being the student's political science professor, he was also running for political office at the time. After a short back-and-forth, the professor told the student he was offended and asked him to stop emailing. In response, the student actually sent a long apology, saying he really liked the professor and just wanted to debate the issue with someone smart, but with a different view.

A few months went by, and the professor received two anonymous emails from a Yahoo address that used the professor's name as a part of the email address (the professor's last name was Avery, and the email username was averylovesalqueda). The emails were tracked back to the student, and he was charged with disturbing the peace. A state district court convicted him of that, and the appeals court upheld it. Yes, "disturbing the peace," for sending an angry email to one person. The court said that there was no First Amendment protections because the emails were "fighting words." While it was true that some of the earlier emails did say the student wanted to fight the professor, the two emails that resulted in the charges did not. They were just the standard insulting, poorly-worded, politically-tinged emails, not all that different than what you'd probably find on a political forum online. The ruling seemed pretty troubling for a variety of reasons... but thankfully, it looks like a higher court also found it problematic.

Michael Scott points us to the news that the Nebraska Supreme Court has overturned the lower court ruling and has said that the emails had First Amendment protections. The court has an interesting discussion of what constitutes "fighting words," and it's pretty clear these emails did not qualify for the kind of "fighting words" that get past First Amendment considerations. Specifically: "to fall within the First Amendment exception for fighting words, speech must be 'shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.'"

The court also (thankfully) recognized the context of the speech, which was an angry political discussion:

The context of Drahota's speech was an ongoing political debate, not random obscenities directed at small children, which could likely provoke a response from nearby adults. Here, Drahota and Avery had corresponded for months on political issues. And both had made provocative statements during that dialog without incident. The First Amendment encourages robust political debate, particularly the right to criticize public officials and measures

Always nice to see a court recognize free speech rights -- even when the content may come across as offensive to some. Below is the full ruling:

Filed Under: bill avery, emails, fighting words, free speech