The Privacy Lesson of 9/11: Mass Surveillance Is Not the Way Forward
aclu.org
aclu.org
The article is also empty of any reason WHY mass surveillance would not be the way forward, or even why it should not be.
This is a particularly useless article.
If you haven't already, I'd say it's definitely time to find a new defender of these sorts of issues.
They're staying silent because they agree with the policies - and you may too - but there is no denying that in terms of invasion of personal freedom it's very great and they're turning a blind eye to it.
https://www.eff.org/ for example may better fit your personal beliefs.
They are not what they used to be.
If you have fundamental disagreements around these issues you really can’t blame the organization for not doing enough. Them doing more or less isn’t the problem, them having other priorities is.
The GP is not arguing against your political positions, but pointing out that an organization which use to focus & care about one position no longer seems to.
The real change has been mostly how individuals say things that the organization may disagree with. Still, I am concerned US politics has become so divisive that the right wing is viewed how the Nazis where back in the 70’s.
As to my politics, I don’t support the ACLU. Requiring locations to host rallies they disagree with isn’t a free speech issue anymore than allowing protesters to block a freeway in rush hour would be. Protests at government buildings are different, but rallies don’t need to be allowed to block public streets.
Civil disobedience is not a bad thing.
For example on the topic of employment discrimination, one could stay silent and thus not be advocating against the right to earn a living nor the right of free association. Furthermore, one can advocate for freedom from the employment treadmill that makes most everyone need continuous centralized-flow employment in the first place (this would be necessary for the negative rights construction to have good results).
Can cops lie to suspects is another tricky one. At one end is a flat no, at the other is misrepresent themselves as the defendants lawyer or pretend to offer immunity in exchange for turning on other suspects.
For cops lying to suspects, I have a hard time seeing how that is an exercise in liberty. They're working as agents of the state, and thus need to perform the specified job - if they wish to lie, then they can quit their job. For sure there is a tradeoff involving their effectiveness versus the liberty of individuals, but that isn't a tradeoff of liberty versus liberty. For this topic, the ACLU should be in the "flat no" camp regardless of where we might want the practical boundary.
“In August 2017, officials in Charlottesville, Va., rescinded a permit for far-right groups to rally downtown in support of a statue to the Confederate general Robert E. Lee. Officials instead relocated the demonstration to outside the city’s core. The A.C.L.U. of Virginia argued that this violated the free speech rights of the far-right groups and won, preserving the right for the group to parade downtown.“
So while it’s scope has increased over time which has created increased internal tension, that’s always been the case. “The A.C.L.U. has in fact often gloried in its internal contentions. It split over decisions to represent the Nazis in the 1930s, the Ku Klux Klan in the 1960s, and the Nazis in the 1970s.”
Frankly the organization has never been filled 100% with defenders of free speech the Twitter age combined with a wider scope has brought this internal tension to the general public. The important work they do is generally in the courtroom which is far more focused.
Basically, the perpetrators were already known - there basically was already (close to) enough information to foresee serious problems (in hindsight * ), just no one connecting the dots. Adding mass surveillance to this doesn't make things easier: signals were already swamped under, that's not going to improve just by getting more data. Rather the opposite.
I don't know how this argumentation squares with the facts. But if the intelligence problem was "failure to connect dots", getting more "dots" is not a solution.
* also, hindsight is 20/20.
>The public learned about the NSA’s “PRISM” and “Upstream” programs, which involve [...] warrantless surveillance of Americans’ international communications on a massive scale.
The US executive branch engineered an automated, massive breach of the constitutional rights of US citizens and the rights of people abroad.
> The executive branch’s Privacy and Civil Liberties Oversight Board found that the NSA’s bulk collection of Americans’ call records had produced “little unique value”[.]
These programs have yielded almost no positive results in actually increasing security, which was their stated purpose. How much does this cost? What do we get in return? What is the chilling effect on society?
>The human toll of government surveillance is undeniable. It can have far-reaching consequences for people’s lives — particularly for communities of color, who are wrongly and disproportionately subject to surveillance.
Mass surveillance programs have been adapted to routine policing matters and have served to dramatically enhance existing biases in policing against marginalized communities. Over 75% of warrantless searches conducted by US police under the auspices of the Patriot Act were for drug related offenses [1].
[1] https://www.theguardian.com/world/2021/sep/04/surveillance-s...
The broader point here is that there are arguments against mass surveillance on principle, the ACLU just doesn't find them convincing.
Anyway, we have a mass surveillance program because people thought it would work. Perhaps we could have avoided the program if we had more people in that room who had effectively argued that, even if it worked, it was not to be pursued for reasons that have nothing to do with its efficacy. Sometimes principles come in handy.
Here's an example: Article 20 of The French Military Programming Law, which entered into force on 1 January 2015 against heavy criticism from civil liberties groups, gave the state full access to all unencrypted telecommunications, including SMS.
11 months later, Paris was attacked by a wave of terrorism, coordinated by... unencrypted SMS.
In response, the government... pushed through even more intrusive surveillance legislation, and coordinated a public relations push to implicate encrypted messaging providers as "complicit".
A broad society that has rendered itself completely nonthreatening to its ruling class?
A place where certain forms free expression can result in imprisonment, torture, or execution? [1]
Mass surveillance serving as the infrastructure of religious, ethnic, and political persecution, including genocide? [2]
[1] https://organharvestinvestigation.net/
[2] https://en.wikipedia.org/wiki/Uyghur_genocide#Use_of_biometr...
Then there's this entire paragraph:
> The human toll of government surveillance is undeniable. It can have far-reaching consequences for people’s lives — particularly for communities of color, who are wrongly and disproportionately subject to surveillance. The people who feel the impact the most are Muslims, Black and Brown people, people of Asian descent, and others who have long been subject to wrongful profiling and discrimination in the name of national security. Routine surveillance is corrosive, making us feel like we are always being watched, and it chills the very kind of speech and association on which democracy depends. This spying is especially harmful because it is often feeds into a national security apparatus that puts people on watchlists, subjects them to unwarranted scrutiny by law enforcement, and allows the government to upend lives on the basis of vague, secret claims.
They don't actually come out an explicitly state it, but the idea they're getting at is that we shouldn't oppress people, particularly people who are already disadvantaged, without cause for suspicion. That would seem to be a second principle we can apply here. You can also combine this with the general ineffectiveness of said mass surveillance and use utilitarian principles to reach the same conclusion.
"We should oppose surveillance because we have privacy rights". Sounds like a tautology. It raises the question: why should we have privacy rights?
The long passage you quoted enumerates negative consequences of surveillance. We should have privacy because democracy depends on it, we should have privacy because surveillance doesn't work, surveillance is racist (how trendy), etc. What's missing, in my opinion, is an assertion that people have a fundamental right to privacy solely based on their being human. That's a natural rights perspective, I think it's indispensible, and I think it's unfortunate that we (not just the ACLU) no longer find it convincing.
As long as we justify our rights based on contingent circumstances they will always be up for debate.
Consider this: if you have rights simply because you are human, then there must be something different about humans that gives them those rights, which chimps and bonobos don't have. What is that?
I agree with you that this is linked to a distinction between humans and animals. The fact that we no longer find that distinction convincing is linked to the fact that we no longer find natural rights convincing.
Uhm consciousness?
Given enough compute, CSAM detection can become part of the display pipeline, whereby the display is checked, in realtime, against some set of known "hashes", effectively providing a limited form of real time tracking of observed behaviour.
The fact that it exists, indicates that governments may use it to circumvent E2EE, or as I mention above, achieve so much more. Apple has been known to cave in to China and other countries.
If Apple does it, then odds are everyone will follow suite due to external pressures. This has _always_ been the case.
Tragically there was an extremely positive outcome for a few very persuasive people.
I remain ambivalent about ACLU's efforts to defend privacy rights.
What is privacy? What would ACLU's future perfect privacy protecting world look like? How, specifically, does our world differ from that world? Is the ACLU just rearranging the deck chairs, as The Titanic sinks?
This is a complicated topic.
Firstly, I don't trust that the ACLU understands our current surveillance economy. One important facet is Zuboff's Surveillance Capitalism critique. How private and public, foreign and domestic interact. By analogy, it's like trying to talk about criminal cartels, focusing just on drugs, and ignoring human trafficking, arms trade, finance, and state actors.
Secondly, I'm not convinced that mass surveillance is entirely ineffective. Wholly I agree that it's illegal, unconstitutional, immoral, overwrought, wicked expensive, and overreaching. But in our reform efforts, I want an account of how our intelligence services performed. I simply cannot believe that there haven't been many more attempted terrorist attacks. Foreign and domestic. And I get that for national security, these same services cannot publicly take credit for their successes. So maybe we can infer how much benefit surveillance yielded thru some kind of meta analysis.
I care about privacy a great deal. As an election integrity activist, I defended voter privacy (with some minor policy wins). As a geek, I designed and implemented electronic medical record exchanges.
And yet I feel I still don't know what privacy is. Or what the trade offs are.
I recently heard Jill Lepore's recap of the very first privacy debates, at the dawn of the IT revolution. Sadly, as someone who's been working in privacy, most of what she discussed was news to me.
Right now I feel we simply need a do over. Start the whole debate from scratch. Get down to first principles.
--
https://en.wikipedia.org/wiki/Surveillance_capitalism
The Computer-men https://www.thelastarchive.com/season-1/episode-7-the-comput...
"In 1966, just as the foundations of the Internet were being imagined, the federal government considered building a National Data Center."
When the US government takes away its citizens' rights (of which privacy is one), the onus is on the government to justify this action. We cannot just assume surveillance works, the government has to prove it--show us the examples. Luckily we know just how effective these programs are and, as the authors here correctly point out, the answer is "not much." [1]
From the link in the article, the Privacy and Civil Liberties Oversight Board concluded in 2014,
> Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. [1]
[1] https://documents.pclob.gov/prod/Documents/OversightReport/e...
EDIT: As to the question of 'what's at stake with privacy rights?', there are great films [2], talks [3], and reading [4] on what's at stake with privacy.
[2] https://en.wikipedia.org/wiki/The_Lives_of_Others
[3] https://www.ted.com/talks/glenn_greenwald_why_privacy_matter...
[4] https://bookshop.org/books/the-age-of-surveillance-capitalis...
I merely ask we have better data to make better choices.
It's fine to flap your lips and wiggle your hips about privacy. Advocacy as performance art. I might be more convinced by implementations, systems, code, legislation.
Might I suggest starting with Translucent Databases, or explaining how states might conduct intel on foreign threats without impinging rights of citizens, or sketching financial systems based on zero knowledge proofs, or show how medical research and clinical studies might be done effectively with differential privacy.
Whenever I think about these potential solutions, it breaks my brain. But I'm sure the non-tech people (ACLU, Greenwald, etc) are much smarter than me and will lead the way.
Or we can all demand the impossible -- because Something Must Be Done -- forfeit on practicalities, declare victory, and move on to next outrage.
Been hankering for this from media and politics for a long time, an outline of the general principles or overall vision that informs individual takes on various issues, but not expecting to ever see it in my lifetime. Disillusioned with the collective ability of humanity to reason together
Given how many of those caught weren't so much “attempted terror attacks” as people talking big who had to be dragged into anything more by the Feds, and how Islamix terror groups have had more to gain by targeting US targets abroad since the 9/11 response started, I can easily believe therr haven't been many foiled attacks by domestic dragnet surveillance.
Our War on Terror has been a complete clown show, policy disaster, absolutely made things worse.
And yet, I'm at a loss for why there haven't been more attacks.
Could it be true that "fight them over there so we don't have to fight them here" and programs like the drone strikes are actually effective?
Are we decapitating terrorists org before they can become effective?
Was putting Saudi govt's nuts in a vice sufficient to stop them from funding follow on efforts?
Are our vassal states doing all the dirty work for us, taking all the hits?
Surely someone, somewhere knows these answers.
So here's my point:
In any of the scenarios where some kind of mass surveillance of foreign actors is necessary or useful, I cannot imagine a system or regiment where that does not bleed into domestic surveillance.
Which has been the whole argument from the beginning. Turf, jurisdictions, distinction between domestic and abroad, etc.
If our counter terrorism has been completely moot, then ya, scrap the whole system. But if its actually been working, then I'm not ready to pull the plug without some kind of plan.
"Efforts to erase voting rights, trans rights, and abortion rights for millions of people are escalating across the country. We’re responding on all fronts — from courts to legislatures in all 50 states, D.C., and Puerto Rico — but we need your help to win."
Has the mission statement changed? Why are trans people, who are on every front page daily as needing more rights, being dragged into this? Why is Snowden not mentioned?
Seems that organization has been successfully infiltrated as well.
https://www.tabletmag.com/sections/news/articles/the-disinte...
And violence against trans people has also increased this year: https://www.theguardian.com/world/2021/jun/14/us-trans-trans...
Two years ago, many trans people were banned from serving in the US military. The ban was reversed earlier this year, but that's kind of the point: there are ongoing attacks against trans rights that are still happening right now and need attention. So that is why it gets the focus.
Charter Amendment 29 is (was?) a popular measure concerning homelessness that polls at around 60% in Seattle, with only 20% opposed. The ACLU sued to remove it from the ballot on legal technicalities: they say that it conflicts with state law. The core thrust of their legal arguments had no civil liberties basis to them. But in their filing they stated their core opposition to the bill in this way:
> While Plaintiffs agree with some of CA 29’s purported goals, these goals cannot be advanced by the local initiative process. Electioneering and soundbites are neither an appropriate nor a legal method for addressing a complex and evolving regional crisis. Moreover, allowing homelessness policy to be established by local initiative would open a floodgate to local initiative and referenda on homelessness, which could be used to further criminalize homelessness or derail action to address affordable housing and homelessness. (https://www.documentcloud.org/documents/21040873-20210811-1-...)
The ACLU sued to prevent the people from voting on a popular initiative to address the homeless crisis, because in their opinion the people might fall prey to "electioneering and soundbites" and vote for the wrong thing.
The lead council for the ACLU on this lawsuit, Knoll Lowney, uses local initiatives extensively in his own progressive advocacy. "Knoll has extensive experience in initiative law, and has authored dozens of statewide and local initiatives for the progressive community." https://www.smithandlowney.com/our-team
In a previous lawsuit where Lowney was in the opposite position -- defending a local initiative to keep it on the ballot -- he argued that "All doubts should be resolved in favor of letting the people vote”, and “any challenges the [opponent] wants to raise will be fully preserved for post-election review”. (Those quotes are found in this filing): https://sccinsight.com/2021/08/31/compassion-seattle-changes...
But that principle flipped this time, when he argued that the citizens of Seattle cannot be allowed to vote on a measure to address one of the region's most urgent crises.
So I don't find it particularly convincing when the ACLU claims they will stand up for voting rights. They will fight against your right to vote on measures they do not agree with.
> But in their filing they stated their core opposition to the bill in this way:
"Moreover, allowing homelessness policy to be established by local initiative would open a floodgate to local initiative and referenda on homelessness, which could be used to further criminalize homelessness or derail action to address affordable housing and homelessness."
> In a previous lawsuit where Lowney was in the opposite position -- defending a local initiative to keep it on the ballot -- he argued that "All doubts should be resolved in favor of letting the people vote”, and “any challenges the [opponent] wants to raise will be fully preserved for post-election review”.
A lawyer's job is making the strongest case they can for their client. And tactics aren't principles.
That is a very creative way of framing a charter amendment that proposed to build 2,000 units of emergency housing for the homeless who are currently sleeping on the streets and in parks.
If there was a strong civil liberties argument here, why didn't the ACLU make it? Why did the entire legal argument rest on a claim that the measure conflicts with other state and local laws? The lawsuit did not cite any instances where this charter amendment actually violates any civil liberty of the homeless.
The ACLU is part of a progressive establishment that believes that the homeless must be allowed to continue sleeping on the streets and in parks, even if shelter options are available. They believe that we must spend until the homeless are enticed to choose shelter, and if they do not choose it, the only option is to spend more. I am against sweeping homeless camps when no other option is available, but I do not think it is reasonable if parks are occupied by encampments of homeless who have decided not to take offers of shelter.
This is a bit ironic considering that the ACLU has abandoned many of its principled civil liberties stances of the past, including defense of free speech, and mostly turned into a progressive political organization. Some articles covering this change at the ACLU:
https://www.nytimes.com/2021/06/06/us/aclu-free-speech.html
https://www.tabletmag.com/sections/news/articles/the-disinte...
On the topic of privacy, it is strange to see the ACLU speak against mass surveillance when they recently flip flopped on vaccine mandates, which are fundamentally about bodily autonomy and health privacy:
https://www.theatlantic.com/politics/archive/2021/09/why-acl...
I don't know why people argued for bodily autonomy when viruses don't care about bodily autonomy or who they infect.
It would be one thing if a disease isn't infectious, but that's not how covid-19 works.
-"Your right to swing your fist ends at the other person's nose." -"But what if the other person's nose is continually growing?"
I could argue against the right to say anything I want on the grounds hearing it might exacerbate a self-diagnosed mental health issue. I might even find a way to do so honestly, if I worked at it. We can't have no impact on our fellow citizens, and I'm not saying I know the solution, but I'm sure giving them full control over our actions is not it.
That seems perfectly reasonable to me. A virus that has killed more people than WWII is very clearly over the line, even if I couldn't tell you exactly where the line is. (The same mushiness exists for free speech, unless you think it should be legal to shout "fire" in a crowded theater.)
The comparison to WWII is a little silly. We consider dying of viral infection to be an act of god, i.e. we do not hold people responsible for exhaling virons into "public air". If you want to question the wisdom of that judgement, consider that you quite possibly have been a link in a chain of infections that killed people. Does that make you a fraction of a murderer?