One Court Decision Against the NSA — Will anything result?

NSA-UnconstsitutionalThe lash-back against the NSA’s Snowden-revealed practice — the “vacuuming” of vast amounts of meta-data about hundreds of millions of people (e.g. phone call traffic analysis) — has begun.  “U.S. District Judge Richard Leon, in Washington D.C., called the NSA program “almost-Orwellian,” and ordered the NSA to stop collecting or analyzing the metadata of the two men who sued. But “citing national security, Leon stayed his order pending resolution in the appellate courts.”  This well-written summary explains the rationale, but leaves many things unsaid:

1. It seems unlikely that such rulings, or even restricting legislation, will provide the slightest confidence that such vastly encompassing endeavors in Big Data will actually stop.  Indeed, given Moore’s Law and the number of elite centers of power that want to look at it all, the only plausible outcome of limits imposed on NSA will be to drive the banned practices underground… exactly as happened ten years ago when the scandal over John Poindexter’s “Total Information Awareness“(TIA) program got it banished… only to re-appear at NSA. If your sole solution is to shout and get things ‘banned’ — driving them to re-appear elsewhere in a game of Whack-a-Mole — then you will accomplish much-sanctimony and nothing practical in defense of liberty.

Already, the NSA and other agencies are culling out the charmingly-naive array of hundreds of thousands of slightly supervised contract workers — Edward Snowden was one — in favor of much more tightly controlled in-house teams. The pre-revelation situation was far more likely to reveal anything truly serious, than the new, Post-Snowden systems will be. In other words, things are not always as they seem.  Stand ready for ironies.

sousveillance-transparency2.  Indeed… ironically… the one thing that would change all this and make such bans enforceable, is the one thing that would make such bans redundant and unnecessary — transparency-supervision or “sousveillance,” shining citizen light upon the mighty.  If we were to focus on that — say by inserting newly aggressive Inspectors Generals, augmented by trustworthy, grand-jury style oversight panels (levied from the population, at-random) with utter freedom to observe, plus making the FISA court truly adversarial — then court orders and legislative restrictions might even stand a chance of being effective.  But, under those conditions, restrictions on the NSA would then not even be necessary!  Because, properly supervised, our watchmen would be constantly reminded they are watch-dogs and not wolves.  We would control what they can DO to us, and shrug over what they can see.

Know-more3. Righteous efforts to blind (as opposed to supervise) the mighty are doomed for another reason. Because it is insane to base your freedom on restricting what other people know.  You can never verify what anyone else does or does not know — it’s not even logical!  In contrast, you can verify what you know. So, base your safety and freedom — and the safety/freedom of your fellow citizens — upon all of you knowing more, not some dark entities (unverifiably) “knowing less.”

And if you did not fully grasp that preceding paragraph, please, it truly is worthwhile for you to understand it, completely, even if you wind up disagreeing. It’s important.  Better yet, see: The Transparent Society: Will Technology Make Us Choose Between Privacy and Freedom?

cameras-smaller4. Anyway, even if you do manage to restrict what the government sees, that will only be temporary. Time and technology are changing rapidly. Take Brin’s Corollary to Moore’s Law: that cameras get cheaper, smaller, better, more mobile and more numerous — each year — at a rate that is much faster than Moore’s Law.  Legislate against this rising tide?  In a few years they will be too small to detect — that woman’s earring.  That fellow’s shirt button, then on the corner of of every pair of sunglasses sold.  Make it illegal and cops and the rich and criminals will still have and use them. Ban the face recognition databases? Then cops and the rich and criminals and techies and bureaucrats will see everyone around them equipped with name tags and captions…. but you won’t, because you voted for a law that will only hamper you and average folks like you.

5. And then… what happens when the next 9/11 shock drives us back into panic mode?  As presciently and chillingly predicted on page 206 of The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom — citizens will fall all over themselves handing back to our protectors the powers to see and surveil and predict and protect.  That ratchet effect is what we must avoid.  It is the thing that brought us the present situation!  And it will happen again, if we do not stop and think.

Glass-housesMy purpose is not to undermine efforts to gain control over state power. I want to ensure perpetual sovereignty for citizens over public servants, in an open and free society!  What I find frustrating is the reflex that is 99% pervasive, to assume that these perils will be solved by endless hand-wringing jeremiads, whining and moaning about Big Brother, along with calls to ban the mighty from looking at us.  That approach is utterly doomed, it has zero examples of success from human history and it is not how we achieved the freedom that we already have.

I have nothing but contempt for sanctimonious whining. We need to be militant, all right! But in realistic ways that pay attention to human nature and to what has, historically, worked.  Not trying to blind the mighty, but stripping them naked so that we can look back and supervise what they do.

Alas, it is the one thing that our righteous public Jeremiahs almost never demand.

== a pertinent excerpt ==

TransparentSocietyHere is that passage from page 206 of The Transparent Society (1997):

“As a mental experiment, let’s go along with FBI director Freeh and try to envisage what might happen if bombers actually succeeded in toppling both towers of New York’s World Trade Center, killing tens of thousands.  Or imagine that nuclear, or bio-plague terrorists someday devastate a city.  Now picture the public reaction if the FBI ever managed to show real (or exaggerated) evidence that they were impeded in preventing the disaster by an inability to tap coded transmissions sent by the conspirators. They would follow this proof with a petition for new powers, to prevent the same thing from happening again.

“Such requests might be refused nine times in a row, before finally being granted the tenth.  The important point is that, once the bureaucracy gets a new prerogative of surveillance, it is unlikely ever after to give it up again.  The effect is like a ratchet that will creep relentlessly toward one kind of transparency — the kind that is unidirectional. A one-way mirror, under which we are all watched by officials, from on high. The place that we called “City Number One” in the first chapter of this book.”

… cue Twilight Zone music… The passage goes on to almost precisely predict what later would be the Patriot Act. And how I wish that forecast had not been so accurate.

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