What We Don't Know About Spying on Citizens: Scarier Than What We Know
schneier.com
schneier.com
Here's what Justice Scalia had to say about the NSA issue last night: http://legaltimes.typepad.com/blt/2013/09/scalia-chides-acti... ("It has gotten to the point, Scalia said, that the current 'national debate' over the power of the National Security Agency to track private citizens' phone calls will be decided 'not by Congress, but by my court, because of the court's arrogation to itself ... [the power] to determine what privacy rights ought to exist.' The court, he said, is 'the branch that knows the least' about issues of national security.").
There is an interesting and relevant blog post about how the NSA spying creates an internal conflict within conservatism: http://www.firstthings.com/blogs/postmodernconservative/2013.... Basically, it's hard to reconcile originalism, which many conservatives espouse, with the idea that the 4th amendment should be reinterpreted to encompass digital privacy.
There's obviously a huge hurdle to overcome to make that happen. How would it be phrased? Very difficult to work out. And, what would cause sufficient outcry for the public to push for it?
> As he often does when extolling the text of the Constitution, Scalia criticized his colleagues for their "activism" in creating new human rights not articulated by the framers.
Argh, comments like this make my blood boil. My reading of history is that the Constitution was not intended to create any human rights, but rather to prevent the government from limiting the rights that we all have naturally. Which would include privacy.
> My reading of history is that the Constitution was not intended to create any human rights, but rather to prevent the government from limiting the rights that we all have naturally. Which would include privacy.
Where the "rights" that the Constitution protects come from and what they are is a complex question: http://en.wikipedia.org/wiki/Substantive_due_process. Most modern jurists have abandoned the idea of "natural rights" (which are ironically, essentially supernatural). Most liberals tend to think of the Constitution as protecting an evolving set of rights derived from broad social consensus. Most conservatives tend to think of the Constitution as protecting those rights the founders would have recognized at the time of the framing, based on long-standing English tradition dating back to the magna carta.
Scalia had this to say about the "right to privacy" yesterday: http://legaltimes.typepad.com/blt/2013/09/scalia-chides-acti... ("As he often does when extolling the text of the Constitution, Scalia criticized his colleagues for their 'activism' in creating new human rights not articulated by the framers. He made much of the fact that the right to privacy can nowhere be found in the document, yet the Supreme Court has discovered and cultivated it over the decades."). As Scalia noted in Jones, historically the 4th amendment was rooted in a "property rights" view, not a "privacy" view. It's easy to see the 4th amendment's protection of "persons, houses, papers, and effects" as simply expressing that the government may not commit trespass against real property or chattels without a warrant. Of course, a lot of people also think Olmstead (which approved phone wiretaps before it was overturned by Katz) was rightly decided: http://en.wikipedia.org/wiki/Olmstead_v._United_States.
I personally think the entirety of the Supreme Court's privacy jurisprudence is hand-waving, from Katz to Griswold to Roe to Lawrence. There's just no privacy in the Constitution, nor is there anything in the historical record to indicate that the framers had a well-developed concept of privacy as distinct from property rights.
There is a real question about interpretation of historical documents in the light of today. Do you interpret them based on their effects at the time they were written, or their literal meaning by modern definitions?
I don't like the question at all, because it presumes a sacredness that should not be applied to mere documents written by people. But there are different problems with making a constitution a more mutable document subject to political fashions.
Could there be a trailing update mechanism, whereby e.g. amendments are proposed, voted upon, then voted upon again 10 years later, and so on, and only applied if 3 or 5 votes succeed?
That would be more legitimate than supreme court rulings, and remove the sacredness that warps people's thinking.
People argue endlessly about Constitutionality not because they view the document as sacred, but because just about the only thing our society agrees on is that the Constitution is one of the few legitimate restrictions on majoritarian democracy. As a result, we fight about exactly what those restrictions are.
Though I think your line of argument is a better one than conjuring a "right to privacy" out of thin air.
Given all the revelations since this was published it makes sense to add the date. In terms of the NSA disclosures timeline, two months is a long time and could be misleading if a reader isn't paying attention to the date.
Please tell your barber, sister-in-law, coffee buddy, or next-door neighbor about it. Tell them why it's important.
EDIT: To the comments below that say that the average person knows but doesn't care: I think you've been speaking with significantly better informed people than the average. Really, my experience has been that the average person has never heard the name Snowden, let alone knows about the revelations. (I might even try an informal poll of people I meet up with, and report back.) That they might not care once they hear the story is a sad, but separate issue.
I think the average person does know about the Snowden revelations. I think the average person just doesn't care.
In fact, they're pretty much shocked at all the surprise and nerdrage on the internet right now. They responded almost universally the same way -- "We assumed this is how it's always been. This is a new thing?"
What they know about is that some kid/nerd was a spy for the Russian government, where he is now living with Putin. That he is a traitor, and that he is trying to make us less safe from the terrorists.
He put american lives at risk, and who knows what some nerd was able to look at while he was at he NSA. What we need is better spying to prevent this from happening again in the future.
If all of this collection stops another 9/11 style attack where thousands of lives are saved, will it be worth it?
9/11 was horrible but it was also noise compared to boring sources of death that we struggle with every day, and whos risks may be increased by our overreactions to 9/11.
Approximately 500 additional people die each year because of this.
The inconvenience of extra passenger screening and added
costs at airports after 9/11 cause many short-haul passengers
to drive to their destination instead, and, since airline
travel is far safer than car travel, this has led to an increase
of 500 U.S. traffic fatalities per year. Using DHS-mandated
value of statistical life at $6.5 million, this equates to a loss
of $3.2 billion per year, or $32 billion over the period 2002 to 2011
IOW, the TSA has created approximately two 9-11s since its inception.
There's a Ben Franklin quote that gets tossed around a lot -- and appropriately so -- in response to questions like this, but this time I'll let Patrick Henry answer for me:
"Is life so dear or peace so sweet as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take, but as for me, give me liberty, or give me death!"
Also, "The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them."
And, "Fear is the passion of slaves."
The problem is all the other uses of such information. And of course we have no idea what else the information is being used for. There is also the effects on people who don't know. For example, imagine the politician who wants to reign in a security service for over reach, but suspects that the security service in question might have some embarrassing data on him/her. Would such a politician take the risk? Or what if a candidate wanted to fight an election based on reigning in a security service, and the sitting politician was "helped by the security service at risk. And so on...
Such information has great power to destroy what democracy we have.
The 'black budget' figure of $50B is just shy of 1/3rd of the total cost of universal health care in the UK, which equates to about 20 million people.
A quick google gives a figure of ~22,000 [0] people dying from a lack of insurance, out of a population of 157 million (25-65), of which about 30 million were uninsured.
Now this is more complicated because the uninsured are likely to be poorer, so possibly more longer term issues and the UK figure covers everyone (not just 25-65) which adds cost. I'm not too interested in creating a perfect comparison, but I feel it's fairly reasonable to say that not spending that money on healthcare costs on the order of tens of thousands of lives per year.
If it's 12,000 then that equates to 4 9/11 incidents per year (in lives)
I know these can't be compared quite like this but I think it does emphasise the sheer scale we're talking about.
[0] http://www.urban.org/UploadedPDF/411588_uninsured_dying.pdf
It has been rumored that this is standard operating procedure in China, where each hotel employs some intelligence officers to invade business traveler's devices...