Congressman: President’s Push To End Data Collection, Will Actually Increase Collection

Ben Swann: March 28, 2014

Just by reading the name, the average American would believe that a new bill being crafted by the Obama administration to end NSA data collection, or a simultaneous effort being pushed through the House Intelligence Committee by Rep. Mike Rogers would lead to the end of data collection on hundreds of millions of Americans. After all, these bills with names like “End Bulk Collection Act” sound like they will free the American people from NSA spying.

Newspaper, television and internet story headlines read “ White House plan would end NSA’s bulk collection of Americans’ phone data”. Sounds like the NSA spying program is coming to an end.

Not so, says Michigan Congressman Justin Amash who voted against the House version of the “End Bulk Collection” bill. Amash, a Republican two term Congressman, was a guest on the Ben Swann Radio Show Wednesday. He says the bill sounds like it will lead to the end of data collection but when you get into the details, the bill could actually expand collection.

“It actually expands the scope of collection, of unconstitutional collection. It is called the “End Bulk Collection Act.” It is like we are in some dystopian future where government calls a bill something that has the opposite affect of what title is.” says Rep. Amash.

The major point brought up by the Congressman is that despite the name “End Bulk Collection”, the bill does not to end collection of data, rather it shifts the responsibility of collection from the NSA to private phone companies.

“They are going to transfer where the phone data is collected so that it is not stored by the government but it is instead stored by the phone companies. Where it is stored is not really the main problem.”

Congressman Amash goes on to say that by correcting “who” is storing the information does not to resolve the constitutionality of bulk collection of data.

“The problem is the unconstitutional search and seizure of people’s information. Even if it is stored about the phone companies, the phone companies are now acting as agents of the government and provide the government even more information than they have today. That doesn’t put us in a better position, it puts us in a worse position.”

So how is it that the American public has no clue that the “End Bulk Collection Act” or the President’s new proposal would actually increase bulk collection? Rep. Amash says you can blame that, in part, on a complacent media.

(Read the full article at Ben Swann)

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If everyone’s every action were being monitored, and everyone technically violates some obscure law at some time, then punishment becomes purely selective.

We Should All Have Something To Hide

By Moxie Marlinspike

Suddenly, it feels like 2000 again. Back then, surveillance programs like Carnivore, Echelon, and Total Information Awareness helped spark a surge in electronic privacy awareness. Now a decade later, the recent discovery of programs like PRISM, Boundless Informant, and FISA orders are catalyzing renewed concern.

The programs of the past can be characterized as “proximate surveillance,” in which the government attempted to use technology to directly monitor communication themselves. The programs of this decade mark the transition to “oblique surveillance,” in which the government more often just goes to the places where information has been accumulating on its own, such as email providers, search engines, social networks, and telecoms.

Both then and now, privacy advocates have typically come into conflict with a persistent tension, in which many individuals don’t understand why they should be concerned about surveillance if they have nothing to hide. It’s even less clear in the world of “oblique” surveillance, given that apologists will always frame our use of information-gathering services like a mobile phone plan or Gmail as a choice.

We Won’t Always Know When We Have Something To Hide

As James Duane, a professor at Regent Law School and former defense attorney, notes in his excellent lecture on why it is never a good idea to talk to the police:

Estimates of the current size of the body of federal criminal law vary. It has been reported that the Congressional Research Service cannot even count the current number of federal crimes. These laws are scattered in over 50 titles of the United States Code, encompassing roughly 27,000 pages. Worse yet, the statutory code sections often incorporate, by reference, the provisions and sanctions of administrative regulations promulgated by various regulatory agencies under congressional authorization. Estimates of how many such regulations exist are even less well settled, but the ABA thinks there are ”nearly 10,000.”

If the federal government can’t even count how many laws there are, what chance does an individual have of being certain that they are not acting in violation of one of them?

As Supreme Court Justice Breyer elaborates:

The complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law, make it difficult for anyone to know, in advance, just when a particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.

For instance, did you know that it is a federal crime to be in possession of a lobster under a certain size? It doesn’t matter if you bought it at a grocery store, if someone else gave it to you, if it’s dead or alive, if you found it after it died of natural causes, or even if you killed it while acting in self defense. You can go to jail because of a lobster.

If the federal government had access to every email you’ve ever written and every phone call you’ve ever made, it’s almost certain that they could find something you’ve done which violates a provision in the 27,000 pages of federal statues or 10,000 administrative regulations. You probably do have something to hide, you just don’t know it yet.

We Should Have Something To Hide

Over the past year, there have been a number of headline-grabbing legal changes in the U.S., such as the legalization of marijuana in Colorado and Washington, as well as the legalization of same-sex marriage in a growing number of U.S. states.

As a majority of people in these states apparently favor these changes, advocates for the U.S. democratic process cite these legal victories as examples of how the system can provide real freedoms to those who engage with it through lawful means. And it’s true, the bills did pass.

What’s often overlooked, however, is that these legal victories would probably not have been possible without the ability to break the law.

The state of Minnesota, for instance, legalized same-sex marriage this year, but sodomy laws had effectively made homosexuality itself completely illegal in that state until 2001. Likewise, before the recent changes making marijuana legal for personal use in Washington and Colorado, it was obviously not legal for personal use.

Imagine if there were an alternate dystopian reality where law enforcement was 100% effective, such that any potential law offenders knew they would be immediately identified, apprehended, and jailed. If perfect law enforcement had been a reality in Minnesota, Colorado, and Washington since their founding in the 1850s, it seems quite unlikely that these recent changes would have ever come to pass. How could people have decided that marijuana should be legal, if nobody had ever used it? How could states decide that same sex marriage should be permitted, if nobody had ever seen or participated in a same sex relationship?

The cornerstone of liberal democracy is the notion that free speech allows us to create a marketplace of ideas, from which we can use the political process to collectively choose the society we want. Most critiques of this system tend to focus on the ways in which this marketplace of ideas isn’t totally free, such as the ways in which some actors have substantially more influence over what information is distributed than others.

The more fundamental problem, however, is that living in an existing social structure creates a specific set of desires and motivations in a way that merely talking about other social structures never can. The world we live in influences not just what we think, but how we think, in a way that a discourse about other ideas isn’t able to. Any teenager can tell you that life’s most meaningful experiences aren’t the ones you necessarily desired, but the ones that actually transformed your very sense of what you desire.

We can only desire based on what we know. It is our present experience of what we are and are not able to do that largely determines our sense for what is possible. This is why same sex relationships, in violation of sodomy laws, were a necessary precondition for the legalization of same sex marriage. This is also why those maintaining positions of power will always encourage the freedom to talk about ideas, but never to act.

Technology and Law Enforcement

Law enforcement used to be harder. If a law enforcement agency wanted to track someone, it required physically assigning a law enforcement agent to follow that person around. Tracking everybody would be inconceivable, because it would require having as many law enforcement agents as people.

Today things are very different. Almost everyone carries a tracking device (their mobile phone) at all times, which reports their location to a handful of telecoms, which are required by law to provide that information to the government. Tracking everyone is no longer inconceivable, and is in fact happening all the time. We know that Sprint alone responded to eight million pings for real time customer location just in 2008. They got so many requests that they built an automated system to handle them.

Combined with ballooning law enforcement budgets, this trend towards automation, which includes things like license plate scanners and domestically deployed drones, represents a significant shift in the way that law enforcement operates.

Police already abuse the immense power they have, but if everyone’s every action were being monitored, and everyone technically violates some obscure law at some time, then punishment becomes purely selective. Those in power will essentially have what they need to punish anyone they’d like, whenever they choose, as if there were no rules at all.

Even ignoring this obvious potential for new abuse, it’s also substantially closer to that dystopian reality of a world where law enforcement is 100% effective, eliminating the possibility to experience alternative ideas that might better suit us.

(Read the full article at Moxie Marlinspike’s Blog & it is mirrored at Wired as well)

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Canada’s Telecoms Have Built Databases For Police Spying: Geist

The Huffington Post Canada
March 26, 2014

Canada’s telecoms appear to be building databases of subscriber information that law enforcement agencies can access without a warrant, according to documents released under access to information laws.

The news comes as Parliament once again gears up to debate the merits of giving police greater access to telecom subscriber data.

The Canada Border Services Agency (CBSA) accessed telecom subscriber data 18,849 times in a one-year period, from April 2012 to March 2013, according to documents provided to NDP MP Charmaine Borg.

And those aren’t all the data requests from the federal government — that’s just one agency, the CBSA.

Of all those requests, CBSA got a warrant in only 52 cases, the documents show, meaning that in 18,797 cases there was no warrant. The telecoms handed over the data for all but 25 requests, and most of the rejections were due to phones not being active or customers leaving the company, the Halifax Chronicle-Herald reports.

Other agencies made requests but CBSA had the largest number.

For warrantless requests, telecoms handed over basic subscriber information. Where there were warrants, the data handed over was more detailed, including the actual content of voice mails and text messages, the Chronicle-Herald reports.

According to digital law professor Michael Geist, the documents indicate the major telecoms have established their own law enforcement databases. In one document, the Competition Bureau declares it had accessed “the Bell Canada Law Enforcement database” 20 times in a one-year period.

“It is not clear what oversight or review is used before a government agency may access the Bell database,” Geist commented.

Privacy expert David Fraser, a Halifax lawyer, says he finds the phenomenon “shocking.”

“If you cannot convince a judge or a justice of the peace or a magistrate that you are entitled to that information, then you should not be getting that information,” Fraser told the Chronicle-Herald.

The law as it stands allows telecoms to hand over voluntarily the personal information of subscribers without a warrant (and without notifying the subscriber) when there is a law enforcement investigation.

But if the Harper government has its way, it will soon be even easier for telecoms to do so.

Bill C-13, the Protecting Canadians from Online Crime Act, is headed for second reading in Parliament. Originally sold by the Tories as a bill to combat cyberbullying, it’s been pilloried by critics for bringing back elements of the failed 2012 online spying bill.

The new bill doesn’t include some of the more contentious elements of the old bill, such as mandatory warrantless disclosure of subscriber data. But critics point out the bill grants immunity to telecoms who share data with law enforcement without a warrant, making it all the easier for telecoms to hand over information.

The bill “will allow authorities access to the private lives of millions of law-abiding Canadians, even if they’re not suspected of wrong-doing,” digital rights group OpenMedia said in a statement earlier this month.

(Read the full article at Huffington Post)

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