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Discriminating Between Discriminations

February 27th, 2014 · 27 Comments

Like most of my friends, I think Arizona governor Jan Brewer was probably right to veto SB 1062, which as Reason‘s J.D. Tucille writes, was less a “blow against big government” than a “homophobic stunt” designed to signal official approval of anti-gay animus, while creating a special class of associational rights for people who justify that animus by reference to ancient myths rather than plain old secular discomfort.  Even worse was a similar proposal in Kansas, which not only singled out gay citizens as specially approved targets of discrimination, but licensed that discrimination when practiced by government employees acting in an official capacity, and forced businesses to “accommodate”  employees who demanded to pick and choose which customers they would deign to serve.

Unlike most of my friends, I do not find it self evident that the “liberty interest” invoked by religious bigots is some kind of absurd sham worthy of mention only in derisive scare quotes. And I find it a bit disturbing that many of them seem to assume that if any anti-discrimination laws protecting any class of Americans have ever been justified, the weight of that interest has effectively been reduced to zero, and may be ignored for all future purposes. Having decided it was OK to forbid motels from turning away African Americans in 1964, in other words, many seem to take it as already settled that there’s no possible objection to compelling a photographer to work a gay wedding—except, perhaps, the invalid one rooted in the view that the homophobe’s bigotry is somehow more justifiable than the racist’s. I’m perfectly open to the notion that it may be wise and justifiable to extent the protections of anti-discrimination law to groups not currently covered—but I also wish supporters of such reforms would acknowledge that there’s a genuine impingement on associational freedom involved in such extensions, and that no simple sweeping principle can obviate the need for a close examination of the tradeoffs in each case.

As I argued in Newsweek a few years back, the “purist” libertarian position that condemns all anti-discrimination laws, including the 1964 Civil Rights Act,  as a priori unjust violations of sacrosanct property rights is profoundly misguided and historically blinkered. We were not starting from Year Zero in a Lockean state of nature, but dealing with the aftermath of centuries of government-enforced slavery and segregation—which had not only hopelessly tainted property distributions but created deficits in economic and social capital transmitted across generations to the descendants of slaves. The legacy of state-supported white supremacism, combined with the very real threat of violence against businesses that wished to integrate, created a racist structure so pervasive that unregulated “private” discrimination would have and did effectively deprive black citizens of civic equality and a fair opportunity to participate in American public life.

We ultimately settled on rules barring race discrimination in employment, housing, and access to “public accommodations”—which, though it clearly restricted the associational freedom of some racist business owners within a limited domain, was nevertheless justifiable under the circumstances: The interest in restoring civic equality was so compelling that it trumped the interest in associational choice within that sphere. But we didn’t deny the existence of that interest—appalling as the racist’s exercise of it might be—and continue to recognize it in other domains. A racist can still invite only neighbors of certain races to dinner parties, or form exclusive private associations, or as a prospective employee choose to consider only job offers from firms run or staffed primarily by members of their own race.  Partly, of course, this is because regulations in these domains would be difficult or impossible to enforce—but partly it’s because the burden on associational freedom involved in requiring nondiscrimination in these realms would be unacceptably high.

mojo-discrimination-lawSome of the considerations supporting our limited prohibition of racial discrimination apply to discrimination against gay Americans. But some don’t. Sexual orientation, unlike race, is not transmitted across generations, which means a gay person born in 1980 is not starting from a position of disadvantage that can be traced to a legacy of homophobic laws in the same way that a black person born in 1980 is likely to be disadvantaged by centuries of government-enforced racism. We don’t see the same profound and persistent socioeconomic disparities. Sexual orientation is also not generally obvious to casual observation in a commercial context, which as a practical matter makes exclusion more costly and labor intensive for the bigot. And while I’ve seen any number of claims that allowing private orientation discrimination would give rise to a new Jim Crow era, the fact is that such discrimination is already perfectly legal in most of the country, and it seems as though very few businesses are actually interested in pursuing such policies.

Rather, the actual cases we’ve been hearing about recently involve bigoted photographers or bakers—who run small businesses but are effectively acting as short-term employees—who balk at providing their services to gay couples who are planning weddings. (I take for granted that gay marriage should, of course, be legal everywhere.)  What’s the balance of burdens in these cases? The discrimination involved here doesn’t plausibly deny the gay couples effective civic equality: There are plenty of bakers and photographers who would be only too happy to take their money. Under the circumstances, the urge to either fine or compel the services of these misguided homophobes  comes across as having less to do with avoiding dire practical consequences for the denied couple than it does with symbolically punishing a few retrograde yokels for their reprehensible views. And much as I’d like for us all to pressure them to change those views—or at the very least shame them into changing their practices—if there turn out to be few enough of them that they’re not creating a systemic problem for gay citizens, it’s hard to see an interest sufficiently compelling to justify legal compulsion—especially in professions with an inherently expressive character, like photography. In short: Yes, these people are assholes, but that alone doesn’t tell us how to balance their interest in expressive association against competing interests at this particular point in our history.

In a sense, bigotry in the economic realm is a bit like pollution: Whether a prohibition is justifiable—and how stringent the limits should be—will depend on whether enough people are doing it that you have an appreciable aggregate harm. We don’t just deem carbon emission an intrinsic wrong and categorically ban it—we recognize that industrial smokestacks are probably worth regulating fairly strictly, while banning fireplaces would limit individuals freedom to use their property more severely than can be justified by the public interest in avoiding the marginal ecological harm imposed, given levels of fireplace usage observed in the real world.

This is, of course, where it’s incumbent on me as a straight guy to check my privilege. (I checked; it’s still there.) Maybe I’m empirically wrong about the practical consequences of private discrimination—which it would be easy enough to be given that I’m not on the receiving end of this particular variety.  Zack Beauchamp argues that there is, in fact, good reason to expect systemic harm. If that’s the case, it might still be worth considering where the harm of exclusion is serious enough to outweigh the interest in expressive economic association. It seems plausible the balance might come out differently for, say, medical clinics and supermarkets than for wedding photographers. In other cases—like hiring—it might be that the right balance is struck by a transparency mandate, where the worst harms are inflicted on people who absorb all the opportunity costs of taking a particular job, only to belatedly discover that heterosexuality was an undisclosed job requirement.

My point here, in case it wasn’t already clear, isn’t really to argue that laws barring sexual orientation discrimination are either justified or unjustified. I  don’t have enough data to say.  The point is that treating private discrimination as either a categorical wrong committed by troglodytes with no liberty interests meriting consideration or an utterly inviolable right of conscience, divorced from either historical context or practical consequence, seems like a stupid way to approach the issue.  If there are still enough hardcore bigots to justify restricting their expressive association in the economic domain—or in subsets of that domain—then I hope their numbers soon dwindle to the point where those restrictions become unnecessary. But at some point, I would hope we can at least agree in principle, they become a sufficiently irrelevant minority that we are not entitled to inflict legal penalties strictly as a means of signalling our superior enlightenment and symbolic disapproval.


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Loathe, Actually

December 19th, 2013 · 2 Comments

Like my friend Catherine, I have a lot of problems with the underlying messages about love embedded in the schmaltzy Christmas romcom Love, Actually, which for whatever reason lots of people seem to be writing about lately. I won’t rehearse my objections, because Catherine captures them pretty well.  “Confessing your stalker crush on your best friend’s wife is sweet” and “They can’t speak a word to each other, but they’re in love—how romantic!” are the top two, and she lists quite a few more.

As Catherine notes, however, one of the overarching problems with the movie—the almost total lack of agency and general underdevelopment of the female characters—is sort of endemic to the genre rather than a specific sin of this film.  One might object that it’s endemic to Hollywood films generally, but it does seem to call out for special explanation in a genre that’s traditionally aimed primarily at a female audience.  Shouldn’t those movies, at least, give us more dynamic and fleshed-out women characters?

One hypothesis that occurred to me—and I’m probably recapitulating a well-worn idea from a critical literature I don’t know here*—is that the anti-feminist elements may, perversely, actually be part of the appeal, though for mainly formal reasons.  Like many popular genres, the attraction of romcoms typically involves entering a fantasy space where you identify with one or more of the characters and share in their triumph—whether that involves beating the Nazis or finding true love.  When the scenario itself is fantastic, the hero can be a bit more fleshed out, because we can imaginatively translate ourselves into a persona appropriate to the context. The viewers, in other words, can sort of delude themselves and think: “Ah yes, I’d behave just like James Bond in that counterfactual.”

When the character’s struggle is closer to home—the familiar search for a lasting romantic connection, most often set in the present day—the differences between the viewer and the character tend to be thrown into sharper relief, which means the characters need to be a bit more generic to enable the widest possible audience identification. And the lack of female agency is, in itself, part of the fantasy element: “I’m so desirable that I’ll be showered with love just for existing.” In a way this mirrors the way many fantasy heroes discover extraordinary powers that are part of an identity that had been obscured even from themelves (Harry Potter, Luke Skywalker, the X-Men) rather than setting out deliberately to acquire them. The ultimate wish-fulfillment is not imagining that you can become special through sustained effort, but to have it confirmed that you were special all along, as you always secretly suspected.

A romcom in which two characters find love because they are both interesting, clever, funny, accomplished, kind, confident, attractive—insert your favorite adjective here—and play equal parts in winning of the affection of the other would not only fail to scratch this itch, it would be depressing. We don’t go to movies to watch people more interesting, clever, funny etc etc than ourselves achieve love and happiness in a context very much like that of our real lives—that’s what we are watching in our real lives. We go to movies to be reassured that we can have those things without being transformed ourselves. The viewer-identification characters here, then, need to seem basically good and genial—we’re not going to project ourselves onto someone actively unlikable—but also bland and passive enough that they don’t leave us feeling like true love is for people with desirable characteristics we conspicuously lack.

If there’s something to this hypothesis, then, the women in movies like Love, Actually are just as underdeveloped and lacking in agency as women in (say) macho action movies, but for completely different reasons. In the male-targeted fantasy, women are essentially prizes to be won by the hero the male viewer identifies with. In the female-targeted fantasy, they’re equally ciphers because these are fundamentally not fantasies of self-transformation, which means the viewer-identification figure needs to be a vacuum anyone can step into as they already are.  In movies about external goals, we can accept needing to become better in some way (through our onscreen surrogates) over the course of the film in order to achieve them.  But people want to be loved for who they already are—to find the person who wants just what we already have, rather than becoming what the other person needs. That, in a way, is the most fantastical element: It is the external trappings of love without (at least for the character the viewer identifies with) the selflessness or transformative process that real love and real relationships—even more than Jedi training or a semester at Hogwarts—always entail.

Maybe. Or maybe—often the simple and obvious explanations are the right ones—it’s just that Hollywood screenwriters and directors are overwhelmingly male, and not very good at writing developed women with complex inner lives even when they’re making movies marketed to women. But it’s a theory.

*Update: OK, apparently the idea is sufficiently commonplace that I don’t need to go digging in the film crit literature; a comic at The Oatmeal will do.

Also, I should be clear that I don’t remotely mean to suggest by phrases like “female fantasy” or “male fantasy” that either type of film is somehow just responding to some kind of wholly independent demand that springs from the Essential Nature of either gender. To shamelessly paraphrase Zizek, before movies can give us what we desire, they need to teach us how to desire. But the process is self-replicating once it’s in place.


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Why Not Contraception Stamps?

December 3rd, 2013 · 10 Comments

Like all wealthy countries, the United States has made a policy commitment to ensuring that everyone, regardless of  income level, has access to enough food to sustain their health. One way we could make good on that commitment is by a system of compulsory food insurance: Everyone pays in, either via plans purchased on the individual market or through coverage employers are required to provide, and then you swipe your insurance card at the grocery store, and your insurance picks up the tab.

There are a bunch of obvious reasons this is not, in fact, the way we do things.  The need to eat is not really a “risk” people need to “insure against.”  Everyone needs to eat, and so the grocery bill is just a predictable, usually relatively stable, recurring expense.  Second, while some bodies will need more food to sustain themselves than others—and there’s some minimum everyone’s going to have to spend on food to stay healthy—the cost, quality, and quantity of food people consume is also substantially a matter of individual choice and preference. You have foodies who devote substantial time, energy and money to culinary pleasures, and folks who keep a far more Spartan diet than they could afford.

So, of course, what we actually do is generally leave individuals with the responsibility of buying their own food, while providing subsidies of various sorts to the poor to ensure everyone is able to obtain some basic minimum, much as we do with necessities like housing or clothes.  Many regard the current level of subsidy in the United States as inadequate, but that is no objection to the underlying structure of the arrangement, which seems to be widely accepted. Some expenses related to nutrition or diet are, of course, covered by insurance: Consultation with a doctor to identify medical conditions that may impose special dietary needs, or intravenous feeding for people who are either temporarily or persistently unable to consume ordinary food. But those cases provide no reason for covering routine food purchases on an insurance model.

The current debate over mandatory, no-copay contraceptive coverage under the Affordable Care Act is somewhat idiosyncratically focused on issues of religious conscience, and whether it is reasonable to compel employers with religious qualms about birth control (or certain forms of birth control) to directly underwrite it. That is surely a debate worth having on its own terms. But it strikes me as a bit odd that so little attention is given to the question of whether an insurance model really makes sense for contraception qua contraception—when it is not prescribed for some independent medical purpose.

There’s a dizzying array of condom brands and birth control pills, IUDs and long-term implants, surgical interventions, and so on, and people have an equally diverse array of reasons for preferring one option or another. Some people use one method or another of contraception pretty consistently throughout their adult lives, others only when they have chosen to be sexually active with a particular partner.  While the costs of long-term birth control requiring surgery may be relatively high, the most popular forms typically involve regular, predictable expenditures within the means of the average person—costs which would doubtless be reduced if we sensibly allowed chemical birth control to be sold over the counter without prescription.

In short, birth control resembles food—surely a more vital health-related need—a whole lot more than it does the types of costly and unpredictable medical treatments that are the main reason for adopting an insurance model to pay for those types of healthcare. As a pure policy question, then, it seems more natural to adopt a similar model for contraception: Let everyone buy their own in accordance with their personal needs and preference, with subsidies for those below whatever income level we decide is appropriate.

The obvious reason we don’t do this, it seems to me, has very little do do with the policy merits and everything to do with politics.  People who are opposed to mandatory contraceptive coverage are often simply opposed, on socially conservative or religious grounds, to contraception as such—or at any rate, to any government support for it.  As with Social Security, the rationale for making coverage universal is a concern that a narrower means-tested program, though probably a better fit for the underlying policy goals, would not be politically viable over the long run.  (“Programs for the poor,” as the saying goes, “tend to be poor programs.”) If conservatives were to accept the general desirability of guaranteeing broad access to contraception, it is hard to see any very compelling argument for using an insurance model to make good on that guarantee that would not apply at least as strongly to food, clothing, and housing—though I welcome any I may not have thought of in the comments.


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Greetings, People of Wired

August 15th, 2013 · 8 Comments

So, first, I’m super flattered to have been included on Wired’s new “101 Signals” list of recommended writers on security and politics. As you may notice, however, I’m not writing all that frequently on those topics here on my personal site anymore. If you’re interested in that, therefore, you probably want to follow me on Twitter (where I usually link stuff I’m writing elsewhere) or check out my posts on the Cato Institute blog.

Second, as quite a few people have noticed, there’s an unfortunate paucity of women on the 101 signals list, which even leaving aside considerations of gender equity, left out many of the best writers and thinkers in this space. So, without any slight intended to the excellent resources flagged by Wired, let me suggest that if you’re coming here from that list, you’ll probably also find enormous value in the Women-in-Technology Twitter list maintained by formidable privacy & drones expert Amie Stepanovich.

If you’re specifically interested in the surveillance issues I focus on, Emptywheel by the invaluable Marcy Wheeler is essential reading, as is Michelle Richardson of the American Civil Liberties Union, and ACLU’s Kade, who blogs at PrivacySOS.  You should probably just follow everyone who works for the Electronic Frontier Foundation, but Rainey Reitman and Jillian York are two of their more fecund online voices. For journalists on the security beat, your feed should include Andrea Peterson, Kashmir Hill, Julia Angwin, and Siobhan Gorman. (I’ll assume only institutional humility forbade Wired from including their own Quinn Norton and Kim Zetter on their list.)  Among academics I scruple to even attempt a partial list because there are too many brilliant thinkers out there to catalog, but for starters you should keep up with Rachel Levinson-Waldman, Jennifer Granick, Helen Nissenbaum, and Kate Crawford. This could be a much, much longer list, but start there and you’re bound to find others worth reading—or add links to your own favorite thinkers in this space in the comments.

Addendum: I note my own list is a bit melanin deficient; I tried to think of some women of color who regularly write for a popular audience on privacy/tech/surveillance/security issues and sadly came up short.  So, again, suggestions welcome in the comments.


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My Restore the Fourth Rally Speech

July 8th, 2013 · 14 Comments

The good folks at the Montgomery County Civil Rights Coalition captured video of my speech at the Fourth of July “Restore the Fourth Amendment” rally in DC’s McPherson Square:

Here’s the text I scribbled in a notebook before I got up. The gist is the same, but this is a somewhat more polished version:

At the dawn of the Cold War, America’s intelligence agencies began constructing a vast surveillance machine. It was a machine with many parts, and a codename for each program it ran.

It was a machine made of copper wire twisted around switchboard terminals, and microphones installed covertly in homes and offices. It was made from COINTELPRO‘s human informants, and from manila envelopes marked JUNE MAIL bound for J. Edgar Hoover’s “Personal & Confidential” file.

It was made of the magnetic tapes carrying millions of international telegrams, couriered daily to the NSA under Project SHAMROCK. And it was made of the computer punchcards, holding the names of American citizens on Project MINARET watchlists, so their communications could be filtered from those telegrams.

Its operating system was written in secret memos and directives that distorted the law and ignored Supreme Court decisions.

The machine was built to fight communism—but it was reprogrammed to fight democracy.

The machine was turned on labor unions and anti-war activists, on journalists and public officials, civil rights leaders and Supreme Court justices.

It was turned on Malcom X and Muhammad Ali, on Stokley Carmichael and H. Rap Brown, on Jane Fonda and I.F. Stone. It was turned above all on Martin Luther King, as the FBI waged a six year campaign to discredit and destroy him, so he could be replaced by what they called “the right kind of negro leader”—meaning one controlled by the FBI and the American intelligence community.

Democracy ultimately proved stronger than that machine—and in the late 1970s, we took steps to dismantle it. We imposed oversight, safeguards, and strict limitations designed to enforce the guarantees of our Constitution and restore the Fourth Amendment.

Decades later, time and fear had dulled those memories, and we began building a new and far more powerful machine—a machine as far beyond Hoover’s as an iPhone is past an abacus.

This machine is built from the fiber-optic cables leading into secret rooms in telecom offices, where sophisticated “semantic analyzers” filter all our Internet traffic.  It’s built from the multi-billion terabyte servers at the massive storage facility the NSA is constructing in Utah.

The new machine runs programs with names like BLARNEY and STELLAR WIND, PINWALE and PRISM—and the source code is still secret.

The old machine was large but limited. It could spy on the government’s “enemies”—but it couldn’t spy on everyone.

The new machine can. It is wired into the cell phones in our pockets, and the switches that route every Web site we read, and every e-mail we write.

And when this machine is reprogrammed in secret—when it is turned against us, whether out of panic or malice, by the next officials who can’t distinguish a national security threat from a threat to the status quo—there may not be anywhere left for us to hide.

One of the targets of the old machine was the Berkeley Free Speech movement. And one one of their student leaders, Mario Savio, gave a famous speech in 1964, where he said:

There’s a time when the operation of the machine becomes so odious, makes you so sick at heart that you can’t take part! You can’t even passively take part! And you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus — and you’ve got to make it stop!

Well, it is that time again. It is time for us to put our bodies on the gears and make this machine stop. It is time to restore the Fourth Amendment.


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Nadler and Mueller on Analysts Getting Call and E-mail Content

June 15th, 2013 · 21 Comments

A brief, slightly confusing exchange between Rep. Jerrold Nadler and FBI director Robert Mueller at a hearing this week is stirring up a lot of fuss, as C-NET reports (and The Hill repeats) that it reveals an NSA admission that analysts sifting through metadata can, without further court authorization, listen to calls or read e-mails:

First, let me suggest that nobody go too nuts with this just yet: This is a two minute exchange referencing an earlier classified briefing, and the parties to it haven’t responded to requests for comment yet.  That said, let’s try to figure out what’s going on.

One possibility is just that Rep. Nadler is talking about analysts having discretion to get the subscriber information on a suspicious number and blurring that with content. But those are two pretty different things, and it seems unlikely he’d make that error. So let’s assume for a moment that’s not it.

What seems more likely is that Nadler is saying analysts sifting through metadata have the discretion to determine (on the basis of what they’re seeing in the metadata) that a particular phone number or e-mail account satisfies the conditions of one of the broad authorizations for electronic surveillance under §702 of the FISA Amendments Act. Those authorizations allow the targeting of whole groups or “categories of intelligence targets,” as the administration puts it.  Once the FISA Court approves targeting procedures, they have no further role in deciding which specific accounts can be spied on. This is, as those of us who wrote about the FAA during its recent reauthorization observed, kind of a problem.

Legally speaking, the analysts don’t have carte blanche. In other words, this isn’t “warrantless wiretapping” so much as “general warrant wiretapping.” They can’t just tap any old call or read any old e-mail they strikes them as “suspicious.” They’ve got to be flagging content for interception because they believe it’s covered by a particular §702 authorization, and observe whatever “targeting procedures” the FISA Court has established for the relevant authorization.  They can’t “intentionally” intercept any calls or Internet communications that are “known at the time of acquisition” to be totally domestic.  But then, what an analyst “knows at the time of acquisition” may be pretty hard to determine, unless they clearly should have been able to determine from the metadata that all ends were located in the United States. Often, especially for Internet communications, that won’t necessarily be so.

Also, the “target” of the acquisition has to be “believed to be” outside the United States. But there’s some ambiguity about exactly what that “targeting” limitation means. That is, it’s not clear whether the phone or e-mail user you’re spying on must be outside the United States, or whether it’s enough that you are seeking information about a group primarily located overseas.  I’ll assume the former, more restrictive case for now: The analyst must believe that one end of the communication is outside the United States, and flag that account or phone line for collection. Note that even if the real target is the domestic phone number, an analyst working from the metadatabase wouldn’t have a name, just a number.  That means there’s no “particular, known US person,” which ensures that the §702 ban on “reverse targeting” is, pretty much by definition, not violated.

None of that would be too surprising in principle: That’s the whole point of §702! It means analysts get discretion to decide what particular accounts fall under a very broad order. A key question, of course, is just what the checks in the process are. Can an analyst technically (if not legally) plug in any selector to start collecting on and just start getting material? Does anyone check their work before call and e-mail content starts flowing in? How closely are their error rates checked after it does? Again, legally, they don’t have a blank check, but it’s the details of the system architecture that determine whether you’d be able to tell the difference in practice.

Anyway, creepy as this all may sound, it’s not exactly a new revelation if Nadler is indeed talking about authority to collect content under §702, though the potential for error seems greater if the basis for acquisition is literally nothing more than a “suspicious pattern” culled from metadata.  In theory, the system could be flagging calls and e-mails for interception almost automatically (like GMail deciding what to flag as “important’), with the analyst occasionally checking off an “OK” box.

Still, this is more or less what the FISA Amendments Act was designed to do.  Shame people didn’t freak out to this extent at the end of 2012, when Congress voted for five more years of it.



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That’s a Glomar!

May 21st, 2013 · 2 Comments

A little ditty I wrote for frustrated journalists, activists, and academics to sing while tangling with our beloved, Byzantine Freedom of Information Act process—to the tune of “That’s Amore,” of course:

When your FOIA reply
Can’t confirm or deny
That’s a Glomar! (That’s a Glomar!)

When you need x-ray spex
To read your Vaughn Index
That’s a Glomar! (That’s a Glomar!)

At this rate seems you gotta litigate with the state
And you’ll hate the procedures protracted

Then you’ll cry when they finally comply with a sigh
And supply… docs entirely redacted.

When “state secrets” are a host
Of facts published in the Post
That’s a Glomar! (That’s a Glomar!)

When exemption 7(e)
Covers everything you wanna see
That’s… the gov!


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FISA: The Movie

January 3rd, 2013 · 3 Comments

So what the hell happened with the FISA Amendments Act over the holidays?  I made a short video for Cato explaining it.


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The Wall Street Journal’s Misleading Celebration of NSA Spying

January 2nd, 2013 · 7 Comments

The FISA Amendments Act has been extended, without amendment, for another five years—and The Wall Street Journal is delighted:

Well, not everything President Obama and the 112th Congress managed to achieve is so terrible. With scarcely any notice, much less controversy, they did at least preserve one of the country’s most important post-9/11 antiterror tools.

One wonders just what their basis could be for the claim that warrantless wiretapping has been “one of the country’s most important post-9/11 anti terror tools.”  After all, a comprehensive audit by the intelligence community’s own Inspectors General found exactly the opposite: That the program launched by President Bush was of no greater value than other intelligence tools; that it generated an enormous number of false leads that wasted time and resources; and that, indeed, it was difficult for intelligence officials to point to a single clear cut case where the program made a crucial contribution to a counterterror success. Much about that program remains secret, of course, but the Journal‘s assertion here is contradicted by the public evidence.

That would be wiretapping, which you may recall liberals portrayed during the George W. Bush era as an illegal and unconstitutional license for co-President Dick Cheney and his spymasters to bug the bedrooms of all U.S. citizens. But now Washington has renewed the 2008 amendments to the Foreign Intelligence Surveillance Act that were due to expire at the end of 2012, with no substantive changes and none of the pseudo-apoplexy that prevailed during the Bush Presidency.

Perhaps we shouldn’t be shocked that a publication owned by Rupert Murdoch would be inclined to make light of concerns about illegal wiretapping, but surely it’s not that mysterious why someone might be more comfortable with a duly authorized surveillance statute that preserves a role for the courts, however anemic and symbolic, than with a president’s unilateral decision to simply ignore federal law and bypass the courts entirely.  Still, they do have a point: Substantively the FISA Amendments Act is at least arguably more problematic than the Bush program, because the surveillance programs it authorizes are potentially much more sweeping than Bush’s was, at least on the basis of public reporting. And it really is telling that many people who expressed outrage over the Bush program seem totally uninterested in scrutinizing the track record of its successor now that we have a Democrat in the White House.

In September the House passed the “clean” five-year extension that the White House desired, 301 to 118. The Senate reserved all of a single day of debate on the floor to coincide with the post-Christmas fiscal cliff chaos, and a broad bipartisan majority defeated multiple amendments from the civil liberties absolutists on the left and right such as Kentucky’s Rand Paul.

Like the Heritage Foundation, the Journal‘s editors conspicuously fail to mention what these “absolutist” amendments proposed.  These included such radical proposals as an amendment to publish declassified summaries of major court interpretations of the law, unless it would harm national security to do so, on the wacky absolutist premise that Americans ought not to live under secret law.  There was also the nutty fringe suggestion that Congress ought to have some idea of roughly how many Americans the NSA is spying on, and that a surveillance program theoretically aimed at foreigners should not be exploited to deliberately circumvent Fourth Amendment protections for citizens’ communications.  What’s really remarkable is that the defeated amendments were about as far from “absolutist” as you can get, and still went down in flames.

This is a turnabout from 2007 and 2008, when letting U.S. spooks read al Qaeda emails or listen in on phone calls that passed through domestic switching networks supposedly spelled doom for the American Republic.

This is just not an accurate description of what the law permits. The programmatic surveillance authorized by the FAA is not limited to “al Qaeda e-mails,” or to the communications of terrorists; the “target” of surveillance can be any foreign group or individual, and the “target” need not actually be a party to the intercepted communications. Nor is it limited to communications that merely “pass through” domestic switching networks: Calls or e-mails sent and received by American citizens are also fair game. If the original Bush program is any guide, enormous numbers of entirely innocent communications are almost certainly being swept up in the process.

Hypocrisy aside, the irony is that the imperfect 2008 deal could have stood a little scrutiny. The concessions Mr. Bush was forced to make inserted the special FISA court into the wartime chain of command, requiring the national security agencies in most cases to get judicial permission to eavesdrop on even foreign enemies. We still don’t know if this new regime has compromised U.S. intelligence gathering.

This is also false. The law has never required court approval to eavesdrop on communications  when both parties were known to be foreigners, and it still doesn’t. The vast majority of the NSA’s signals intelligence activities remain completely unregulated by FISA. The FISA Amendments Act covers wire communications between Americans and foreigners—which previously required far more rigorous individualized warrants if the wiretap was conducted in the United States—as well as cases where the location of one party to a communication can’t be determined in advance (as is often the case with e-mail). The latter presented a genuine problem that could and should have been solved far, far more narrowly. The FISA court’s minimal involvement in the FAA process—which is limited to rubber stamping broad “targeting procedures” developed by NSA—falls fall short of the traditional warrant approval process, and the idea that it could have “compromised U.S. intelligence gathering” seems frankly absurd.

If the “Imperial Presidency” is only imperial when the President is a Republican, at least that doesn’t represent a real political conviction, merely naked partisanship.

On this point, at least, the Journal is entirely correct: It is sad to see so many Democrats shed their concerns about executive surveillance powers—historically abused by presidents of both parties—now that their bête noire has left office. And with the FAA extended for five more years, Obama too is likely to be long gone before we have another occasion to debate the wisdom of these powers.


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Your Television, I Am On It

January 2nd, 2013 · 11 Comments

As a general rule, going on television reminds me why I’ve chosen a career in print, but between the reauthorization of the FISA Amendments Act and the David Petraeus scandal, I’ve nevertheless ended up making a handful of small-screen appearances in the past couple months. For those of you who are into that sort of thing, here are the clips.

I talked about the reauthorization of the FISA Amendments Act on the December 28 Rachel Maddow Show, with Ezra Klein guest hosting:

Earlier the same day, I made a cameo in CNN’s story about the reauthorization:

Back in November, I was part of the roundtable on the Chris Hayes Show (transcript) discussing the Petraeus scandal and e-mail privacy:

And finally, I did a full 45 minutes on C-SPAN’s Washington Journal fielding questions about the state of electronic privacy law:


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