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Posted by on Jul 18, 2008 in Politics | 24 comments

The Real FISA Issue

I was skimming through this litany of complaints over the revised FISA legislation in The Indypendent and giving fresh thought to some of the major privacy concerns which occupy our national debate on the subject. We live in an era where advancements in technology give rise to fears that our government can now track our movements through our cell phones and, increasingly, the GPS compatible devices in our automobiles. Our conversations can be monitored, not only through voice communications, but text messaging and e-mail exchanges. Cameras, now found at stoplights, convenience stores and ATMs, follow our every move from the moment we step out our door. Fears have arisen that the government is assembling a national database of DNA samples – taken from the moment we are born – which will eventually allow every skin cell we shed during the day to lead the long arm of John Law straight to our stoop like Hansel and Gretel’s trail of bread crumbs.

The essence of the chief argument against this – and rest assured, I’ve used it myself – is, “if you’re not doing anything wrong you don’t have anything to worry about.” The government, police or “the authorities” in general are looking for The Bad Guys. They aren’t looking for “us.” We are The Good Guys and have nothing to fear.

One common and immediate rebuttal to this is that the real Bad Guys are the ones who will find ways to get around these surveillance efforts. They will use “burner” style disposable phones and find ways to disable GPS devices in vehicles. They will disguise their visage in public, which most of us would never do, and most of them probably don’t use computers anyway. As in the case of gun bans, the Good Guys will give up their guns while the Bad Guys keep theirs. (They’re not terribly interested in obeying local statutes in the first place, you see.) In the end, the government will simply wind up spying on and imposing restrictions upon the Good Guys while the Bad Guys flaunt the law.

The reality, of course, is that not all criminals are high tech masterminds working in league with super villains to crack the security codes at Fort Knox, and the fundamentally honest nature of the Good Guys is neither pervasive nor homogenous. We’re all familiar with the heartstring tugging stories of Mary Kate, the poor but pious lunch counter lady who finds four thousand dollars in a paper bag sitting on the bench at the bus stop. She very much needs the money, but instead turns it in to the police and it winds up being the life savings of some addled retiree. CNN picks up the story and we all feel better about the essential goodness of the human spirit.

In response to this, I turn to Dr. Carol Tavris and her essential book on human behavior, Mistakes Were Made (but not by me!) where she details the Problem of the Benevolent Dolphin. I’m sure you are all familiar with the pervasive stories of the hapless sailor, lost at sea and tossed over the gunnels into the angry ocean without a life vest. Just as all hope seems lost, a dolphin appears who bumps the mariner toward the surface and begins nudging him in the direction of land until he is eventually saved. From this we conclude that dolphins are benevolent in nature and predisposed to lending a helping hand to humans in distress. But, as Dr. Tavris points out, this may be a faulty conclusion.

But wait – are dolphins aware that humans don’t swim as well as they do? Are they actually intending to be helpful? To answer that question, we would need to know how many shipwrecked sailors have been gently nudged further out to sea by dolphins, there to drown and never be heard from again. We don’t know about those cases, because the swimmers don’t live to tell us about their evil dolphin experiences. If we had that information we might conclude that dolphins are neither benevolent nor evil; they are just being playful.

No person who finds the bag full of money and then decides to run home and settle up their overdue mortgage payment is going to dash off to MSNBC to be interviewed about it, so we never hear those stories. There are also one time criminals, drunk, clueless or driven by desperation, who would certainly not qualify for the moniker of arch-villain. Observe the fellow in Florida who recently attempted to hold up a convenience store using a potted palm frond as a weapon. (That story is only made more amazing by the fact that he succeeded.) The point here is that we should enjoy and cherish our privacy but recognize that some people will still do bad things and we have agencies in place to maintain the general peace and welfare.

In the end, the privacy protections we enjoy through the Bill of Rights, Miranda and similar guarantees, were never intended to protect the guilty nor make it more challenging for CSI investigators to capture them in dramatic fashion. These assurances were granted to shield the innocent from false accusations and prosecution, be it through either malfeasance or incompetence on the part of the authorities. We didn’t design this system to ensure you can get off on a technicality if you are guilty. We built it to make sure the right person winds up behind bars. This is the final intent of FISA – not to spy on you as long as you remain one of the Good Guys, but to make sure the Bad Guys don’t show up at your door with a palm frond.

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Copyright 2008 The Moderate Voice
  • Neocon

    Big brother is here. It just sorta crept up on us didn’t it? While we were sleeping the internet and the technology boom just made it so easy for people to spy on us.

    Hackers can steal all your money and not leave the comfort of their chair. We should not regulate that because its requiring the government to spy on the internet to prevent this type of activity. Why do we want the government to keep us safe from hackers but not terrorists who would kill us as opposed to stealing our money is beyond me but then nothing the antiwar/left does makes sense to me anymore.

  • mikkel

    I strongly disagree with your assertion about the nature of criminal/privacy protections. To me, it is glaringly obvious that the underlying foundation of the system is to try as hard as possible to make sure that innocent people aren’t put behind bars, even if it means that some guilty must go free. This is why evidence is thrown out if obtained illegally…the courts have made it very clear that to even tempt authorities into gathering evidence illegally is a path we must not go down.

    In the US Safety is not prized above all else, Freedom is. This is why government officials take oaths to uphold the Constitution, not to protect the citizenry.

    In any case, the entire dichotomy is a false and dangerous one. I believe that the motto should be “security through freedom.” Trust me, I have as much faith that we can do data mining and create amazing things with computers, but the surveillance state is asking for the impossible. Even with an extremely high threshold for action, there are so few terrorists that by simple probabilities, there will be a vastly larger amount of false alarms and arrests from the system than real ones. Security/intel experts have been pointing this out a long time — how the billions we are wasting would be much better spent on traditional intelligence and network infiltration, not to mention strategic goals that will reduce the threat (such as developing a better shipyard system or nuclear waste disposal). We should use all the technology we can to catch dangerous people, but it would be much better to identify them traditionally and then specifically target them. It would not only make the system less ripe for abuse, it would save a lot of hassle and give a more comprehensive picture of the situation (again for this reason I believe that actually building up court cases against enemy combatants will make us safer because the government will be forced to create comprehensive pictures of the situation). The existing laws were (mostly) sufficient for this purpose.

    With the high number of false positives that are guaranteed to happen, if there are several attacks and everyone gets very panicked, there will be a lot of innocents harmed and no one will want to believe them because the System says they are not.

  • I see what it is that you’re saying Mikkel, but I’m not sure where we diverge all that much. The illegal gathering of information is rightly prohibited, even if the suspect is, in fact, guilty. I’m not arguing against that. But there are cases where guilty individuals manage to use patently ridiculous loopholes to get off the hook. And I still stand by my original assertion that the intention of all these protections is not to protect the guilty, but to protect the innocent from the state. The changes in FISA are certainly unappealing to many because of the telecom immunity issues, but the surveillance questions (so long as they still pass through a FISA court for a warrant) should really satisfy that most everyone will be getting the required amount of protection. We want judicial oversight for any “snooping” but at the same time I’m not comfortable with pushing the “leave me alone” aspect to the point where we seriously restrict our ability to catch the actual bad guys.

  • mikkel

    I too agree that a lot of the hand wringing (on my part as well) is a bit overwrought because there is more protection in the current bill than there was on its face, but that said, there are some provisions in the bill that suggest a legalization of large scale data mining. The question is how that will be used.

    But really the question comes to standing. Let’s say you believe the government IS violating your rights and privacy, so you want to take them to court to stop it. Well there have already been several rulings that based on what is known *publicly* the government was breaking the law, but that’s not enough. Someone has to prove that they were personally harmed by the lawbreaking in order to let the court be able to do anything about it. Well guess what? That is a “national security secret” and so it’s a catch-22. In order for the innocent to protect their freedom they have to prove that they are being illegally spied on, but the courts have already ruled that the government is OK by keeping that secret so then the case is thrown out.

    This is the crux of the telecom immunity. It was never about damages to the telecoms, it was about bringing civil suits that could then be used for discovery to prove standing (there is a lot of disagreement whether this is a right way to prove standing, since it is legally-moral murky).

    Indeed, while I have few objections to your reasoning, the actual details leave a lot to be desired. For instance, while they (rightfully) closed the loophole that treated foreign-to-foreign communication running through US servers as domestic target, the new law says the government has to “reasonably believe” one target it outside the US and there will be “good-faith” to avoid domestic spying at all. Indeed, the arbiter of this good-faith provision is the AG and is not really open to either Congress or traditional judicial review (I believe that there is a board set up by the President that handles reviews…but I could be wrong). In essence, they can do whatever they want and just say “oops” if they get caught…although it’d be very difficult to prove that you were a target in the first place.

    This makes my objections pretty clear. It definitely means that the President will have extreme leeway in how the implementation is carried out. The key point is that the “oversight” moves from a case by case basis to a general oversight of a whole system that potentially is tracking millions of people…all while not affording a way to prove individual infringement.

  • mikkel

    I was slightly wrong about the loophole:

    As noted earlier, FISA has never – at any time – regulated surveillance of a wire or radio communication between two foreign locations, even if made by two Americans, and even if acquired inside the United States (as can happen because of the way the world’s telephone lines are laid out). But, as also noted earlier, it does currently regulate surveillance of an e-mail exchanged between persons in two foreign locations, if the e-mail is acquired from storage inside the United States, even if both the sender and recipient of the e-mail are foreigners.

    Notice that again, he points out that on its face there are actually more protections afforded to American citizens than before. I just don’t see anyway those protections can be enforced.

  • Agreed. In the end, assuming we find at least the minimum amount of protections being legislated, it comes down to whether or not and how much trust we are willing to ascribe to the government to actually follow the rules and protect our privacy inside of judicial oversight. If we wish to extend that trust, we probably wind up being ok. If we are suspicious enough of our government to believe they will violate that trust (and I am NOT saying that’s never happened before) then nothing may ever fully satisfy us. It’s not an easy topic for me either. I guess I’m just a bit more optimistic about the intentions of the government, not that I’ve been given that much reason for such optimism these last few years.

  • “if you’re not doing anything wrong you don’t have anything to worry about.”

    That sort of thinking has been thoroughly discredited by history. The original FISA laws were established in direct response to the government trampling on the privacy rights of innocent people. Political dissent was usually enough reason to spy on you.

    Here is an excerpt from a 1969 Time article (h/t Greenwald):

    During his presidential campaign, Richard Nixon said that he would take full advantage of the new [eavesdropping] law — a promise that raised fears of a massive invasion of privacy. To calm those fears, the Administration last week issued what amounted to an official statement on the subject.

    In his first news conference since becoming the President’s chief legal officer, Attorney General John N. Mitchell pointedly announced that the incidence of wiretapping by federal law enforcement agencies had gone down, not up, during the first six months of Republican rule. Mitchell refused to disclose any figures, but he indicated that the number was far lower than most people might think. “Any citizen of this United States who is not involved in some illegal activity,” he added, “has nothing to fear whatsoever.”

    Woops!

  • Neocon

    Well once again the left got their way. legislate and regulate.

    that is their answer to everything nowadays.

  • JSpencer

    And once again Neocon found an opportunity to grind the left side of his axe.

    • Neocon

      Yep. When the left needs grinding I will most certainly be there to grind it.

      The left………….legislate and regulate.

      The right………Tax cuts and Head butts.

      Moderates………Screw them all come this fall.

  • The more I see of both Obama and McCain, the former on domestic issues and the latter on foreign policy, the closer I get to Neocon’s position for moderates. “Screw ’em. I’ll take Barr.”

    🙂

  • Jazz,
    What’s good about McCain’s domestic policy?

  • publiusendures

    “In the end, the privacy protections we enjoy through the Bill of Rights, Miranda and similar guarantees, were never intended to protect the guilty nor make it more challenging for CSI investigators to capture them in dramatic fashion. These assurances were granted to shield the innocent from false accusations and prosecution, be it through either malfeasance or incompetence on the part of the authorities. We didn’t design this system to ensure you can get off on a technicality if you are guilty.”

    I think this misses a crucial point, though – under the assumption that an individual is innocent until proven guilty beyond a reasonable doubt, these protections exist to ensure that guiltiness is actually proven. When procedural protections are violated, so is the validity of evidence obtained.

    Similarly, protections against privacy violations also operate under the assumption that one is innocent until proven guilty. Obviously, of course, it is not possible or appropriate to require a finding of guilt before issuing a warrant, but our system acknowledges that warrants at least act as a way of safeguarding against arbitrary searches. Their purpose is to ensure that the government is not harassing individuals without a really good reason- in other words, to make sure that the government is not going after innocents. To permit particular violations of privacy (such as warrantless wiretapping) is often to permit those government officials to act as the arbiters of whether there is good reason for an invasion of an individual’s privacy and/or property. And those government officials, who have their own jobs and missions, are hardly neutral parties, no matter how well intentioned and noble their goal may be. Procedural protections, such as a relatively strong FISA bill, help to ensure that when the government acts in violation of a privacy or property interest, it has a sufficient basis for doing so.

    Regarding the argument about whether “Bad Guys” are capable of getting around surveillance and privacy invasions such that only the innocent are hurt by such invasions, I have to say I doubt this argument’s prevalence. However, to the extent it is a commonly made argument against the new FISA bill, it is a clearly flawed argument, and your counterargument is certainly correct.

    On a side note, it’s worth pointing out that the now massive (and ever-expanding) list of crimes of varying degrees, both federal and state, has made it so that it is difficult to go through so much as a day without violating a criminal law of some form or another (few of which are malum in se). In an environment like that, prosecutions and investigations become inherently selective – procedural protections against searches help to reduce the arbitrariness of that selectivity. Moreover, in such an environment, almost everyone is “Bad Guy” whose privacy and/or property can be invaded – procedural protections help to reduce the occasions where the “Bad Guys” whose privacy/property is invaded are only “Bad” in the sense of being law violators, rather thany “Bad” in the sense of posing a legitimate threat to others.

  • runasim

    “there are cases where guilty individuals manage to use patently ridiculous loopholes to get off the hook”

    This is an absolutely true statement describing all of life, not just FISA or wiretapping. And the biggest loophole of all is this: “Screw ’em. I’ll take Barr

    For 200+ years, this country has survived by striving for BALANCE: three EQUAL branches of government, states vs the feds, the individual vs society, privacy vs security, church vs state, benefits vs obligations. The endurance of the nation was never achieved by those who find complex problems too complex and leave the playground with their toys. The future was ensured by those who stay in the playground, thrash out the most complex among the complex and arrive at an acceptable (or not) balance. They go too far in one direction, then too far in another, but they stay around to self-correct. They don’t look for a non-existent paradise under the sand dunes.

    Guess what? Life isn’t capable of being perfect. People will never be perfect.
    Deal with it, and accept that imperfect people will always be around, raising their imperfect voices in a pluralistic democratic society.

    Those VOTING imperfect people will also be around should there be another attack, in which case the first thing out of their mouths will be: “Who were the traitors who scrapped, or tried to scrap, FISA? ”
    If we don’t want a suped up Patriot Act on steroids , then we must act now to forestall it, by restoring balance as much as we can. Imperfectly, stumblingly, in our human, imperfect way.

    Start with restoring the EQUAL branches of governent, as nothing useful can follow without that. Save your rage for what’s most important.
    Just remember; perfection is not ours to ever realize, not unless we all turn into haloed angels.

  • Neocon

    Good one Jazz. I like that………………….Oh man thats the bumper sticker for Bob Barr

    SCREW EM ALL>>>>>ILL TAKE BARR

  • Neocon

    Runasim

    Why are you preaching about a bill already passed? Its a stupid bill that made the antiwar happy. Has anyone ever wondered about one thing.

    Dont you find it odd that Barak Obama pretends to want to fight a war when his base is the (ANTI) WAR.

    Now that is something I find odd. Screw them all Ill Take Barr.

  • runasim

    Neocon,.
    re:: Why are you preaching about a bill already passed?”

    Because the bill needs reform, amendments, adjustment. It doesn’t need scrapping; it doesn’t need expansion; it needs reform. Protections need to be strengtened and amnesties for future situations need barriers.

    BTW, your serial misstatements about Obama’s ‘base’, his policies or his philosophy accomplish nothing, zilch, nada. If you need to self massage your ego regularly,, enjoy your fight with a strawman. Just be aware how transparent.
    your gimmicks are.

  • Neocon

    reforms as in the telecoms should be sued into extinction so then all our phone bills can double?

    That kind of adjustments?

    Have mercy even the legislate and regulate crowd cant get enough. They want to keep on legislating and regulating a bill even after its become law.

  • One comment for Publiusendures… you bring up the legal point of innocent until proven guilty. A technical point, but true and important. However, this doesn’t change the fact that sometimes people actually do commit a crime, but in the end they are not or can not be found guilty by a court. Are they “innocent”? No. Even in legal terms they are simply found “not guilty” (I know.. a bit of a nit) but in the real world outside of the legal system, if they actually committed the crime they are guilty and not deserving of our sympathy or congratulations for having gotten off the hook.

  • SteveK

    As Jazz has seen fit to ignore it, I’ll second ChrisWWW’s question:

    Jazz, What’s good about McCain’s domestic policy?

  • DLS

    Actually there is a lot of overreaction to this and so often “privacy” is misused by those who don’t want any kind of behavior whatsoever unchecked.

    With FISA we *** NEED *** to suppress junk lawsuits, a horrible scourge in this nation and something that obviously needs to be prevented when and where this can be done.

  • DLS

    “Hackers can steal all your money and not leave the comfort of their chair.”

    Stop that! You’re injuring their and their supporters psyches! It’s not “hackers”; it’s [romantic cyber-“counter-“]”insurgents.”

  • DLS

    “that is their answer to everything nowadays”

    Unlike the fools and troublemakers who actually want much more of this, whose votes are easily bought and exploited by the Dems in elections, as a rational and moral person, I have serious concerns that the Dems will do much of this after January. Do we want another vast increase of regulations as in the 1960s-1970s? It ranges from disgusting to horrifying for good people to contemplate.

  • publiusendures

    I know this is way late to comment on this post, but just to respond to Jazz’s last comment. Although innocent until proven guilty obviously does not make a person innocent in the eyes of the public, my point is simply that it is procedurally a critical concept. Although we can- and do- convict people in the eyes of the public, this does not undermine the necessity of the procedural safeguards to make sure that the people who are convicted in the eyes of the law are actually guilty (especially when these safeguards, as they exist, are already insufficient to guarantee the guilt of everyone who is convicted).

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