Electronic privacy

  • November 5, 2013
    Guest Post
     
    This post originally appeared at BORDC's People's Blog for the Constitution. It is the second installment in a two-part series; the first installment can be read here.
     
    As the NSA spying scandal has progressed, congressional Democrats have grown co-opted by an Obama administration committed to defending, entrenching, and perpetuating the Bush administration’s legacy—despite the president’s campaign promises in 2008 to reverse it. This co-optation spells grave threats not only to partisan Democrats, but also to principled progressives attached to an ideology inadvertently weakened by partisan Democrats aligned with the president.
     
    Rallying around President Obama…to shoot themselves in the feet
     
    In August 2013, during the debate on the House defense appropriations bill, only 7 votes protected the NSA from debilitating budget cuts that would have ended its domestic bulk collection activities. Seven members of Congress could have changed the outcome of the vote, reflecting a razor thin (under 2%) margin of victory for the surveillance state.
     
    That margin of victory could be explained in many ways. One explanation may surprise progressives: Democrats from the Bay Area and Chicago, representing safe blue seats, who were outspoken about surveillance abuses at one point, comprised the NSA’s entire margin of victory. They chose to resign their principles, oaths of office, and constituents’ concerns in order to support their partisan patron, the president. They’re carrying the Bush administration’s water because it’s now President Obama holding the glass.
     
    After raising a righteous ruckus about government spying under the Bush administration, congressional Democrats saved the NSA from a transformative challenge initiated from within the GOP. Their constituents have already indicated—loudly—that they are not happy.
  • October 29, 2013
     
    For American communities of color, the latest revelations about U.S. government surveillance, at home and abroad, has been met without much surprise and with a long memory of the injustice suffered by minority groups since our nation’s inception.
     
    At a recent D.C. event sponsored by Free Press, the Center for Media Justice and Voices for Internet Freedom, activists and community leaders assessed the increasing dangers and called listeners to action.
     
    “We are a settler-colonial nation,” explained Fahd Ahmed. “Race and social control are central to the project.” As the legal and policy director for Desis Rising Up and Moving, an organization dedicated to organizing and amplifying the voice of immigrant workers, Ahmed has seen first-hand how the government isolates and targets vulnerable populations. In particular, he noted the targeting of Muslims by the NYPD under the supposition of anti-terrorism efforts, but was careful to emphasize the broader scope of the present danger. “These practices won’t be limited to one community,” he said. “After all, surveillance has a purpose – to exert the power of the state and control the potential for dissent.”
     
    Other panelists reached similar conclusions. Surveillance is “not anything new” for people of color, observed Adwoa Masozi, a communications specialist and media activist. Recalling the COINTELPRO programs of the 1960s and 1970s, she named the major difference between then and now: “The government is just more open about it.”
     
    Alfredo Lopez, the founder of May First/People Link, called the recent news an indication that “the ruling class is figuring out how to rule a society that is rapidly changing beneath it.”
     
    Seema Sadanandan of the American Civil Liberties Union’s National Capital Area Affiliate called the last few months a “tough time for white people,” whose relatively unchallenged faith in the Bill of Rights has been profoundly shaken.
     
    Still, the next steps were harder to assess. For example, what role do lawyers and the law have in movements against this kind of surveillance? And how should activists interact, if at all, with the Internet and popular platforms like Facebook and Twitter?
  • July 29, 2013

    by E. Sebastian Arduengo

    Edward Snowden’s revelations about the Foreign Intelligence Surveillance Court’s (FISC) secret rulings have heightened scrutiny on the court and the work it does. The court, which meets in the same building as the U.S. Court of Appeals for the D.C. Circuit, is unique among federal courts in that its judges are not appointed by the president and then confirmed by the Senate. Instead, the court is made up exclusively of sitting judges who are appointed by the Chief Justice of the United States for seven-year terms with no legislative or executive oversight. Professor Theodore Ruger at the University of Pennsylvania said that the way the court is set up, the Chief has unchecked authority to appoint people to the court who share his views.

  • July 22, 2013
    Guest Post

    by Reuben Guttman, Director and Head of False Claims Group, Grant & Eisenhofer.

    A few weeks ago I wrote a piece published in The Lawyer, a London based legal paper. My column, which questioned whether Edward Snowden is a whistleblower, drew passionate comment from those, like myself, who are counsel for individuals who are called whistleblowers because they have questioned corporate and government misconduct including lies. The discourse has caused me to continue to ponder the issue.

    The question of whether an individual is indeed entitled to be called a whistleblower is not just a matter of academic discourse. Whistleblowers are generally entitled to protection from retaliation and, under laws like the U.S. False Claims Act and the Dodd-Frank Amendments; they may even be entitled to a bounty. Setting aside the legal issue, those who properly question immoral processes, laws, or conditions, are in some circles considered heroes. And so this is also about who we place on a pedestal as beacons of ethics, integrity, and plain guts. 

    For me there are two components to the analysis of who is a "whistleblower”: (1) the reason for questioning a practice or law, an effort which may involve the disclosure of private or confidential information, and (2) the method for doing so.

    Merely making public private information - no matter how interesting the information may be - is not by itself a colorable act of whistle blowing unless there is some greater moral or societal purpose to be addressed. Then, of course, there is the question of the process employed to "blow the whistle."

  • July 19, 2013
    Guest Post

    by Reuben Guttman, Director and Head of False Claims Group, Grant & Eisenhofer. This piece is a cross-post from The Lawyer.

    As former National Security Agency (NSA) and CIA employee Edward Snowden continues to try to evade the US authorities, the spectacle has been the talk of Washington DC. While Snowden is characterised as a whistleblower, the affair raises questions about the US government’s surveillance efforts. Deeper questions exist as to the role of private contractors in implementing governmental functions.

    At its heart the Snowden matter questions the role that contractors, including his employer, Booz Allen, play in the implementation of programmes most believe are run by government employees. Who would have thought that the US government would entrust a private contractor to conduct security clearance protocol? Learning about the number of employees working for private contractors demonstrates the extent to which such functions have been delegated to the private sector. That an individual with a sordid education and work history could secure high-level security clearance and access information maintained by the US government can only be explained by the negligence of a private contractor.

    Tea party conservatives love to complain about big government and their solution is to contract out the work. At best, their argument is that the private sector is more efficient. The truth is that when the private sector contracts with the government the result is akin to the looting during one of New York’s famous blackouts. The government simply lacks the ability to monitor its contract workforce.

    The irony is that if there was a whistle to blow, it should been blown on the process that allowed Snowden to be hired. It is apparently a process that allows unrestrained youth access to both potentially classified data and information about citizens’ private lives.