The Commentariat -- July 3, 2013
NSA Director Forgot All About the Patriot Act. Spencer Ackerman of the Guardian: "The most senior US intelligence official told a Senate oversight panel that he 'simply didn't think' of the National Security Agency's efforts to collect the phone records of millions of Americans when he testified in March that it did 'not wittingly' snoop on their communications. James Clapper, the director of national intelligence, made the comments in a letter to the Senate intelligence committee, released in full for the first time on Tuesday." The letter is here (pdf). ...
Seriously, does James Clapper seem like the kind of guy who's got a handle on all this stuff? Even if you believe it's a good idea, wouldn't it be prudent to at least have competent people in charge of it? -- Digby
Did nobody think that hiring hackers to hack might result in being hacked themselves? -- Digby
... When she's not pointing out that idiots run the NSA, Digby raises the important issue of the secret cyberwar the NSA seems ready to wage. The New York Times story that Digby cites, by David Sanger & Scott Shane, is here. ...
... Up in the Air. Carlos Valdez of the AP: "The plane carrying Bolivian President Evo Morales home from Russia was rerouted to Austria on Tuesday after France and Portugal refused to let it cross their airspace because of suspicions that NSA leaker Edward Snowden was on board, the country's foreign minister said." ...
... Update. This is an ongoing (at 5 am ET) diplomatic air war. The Guardian is liveblogging it. ...
... David Herszenhorn & Andrew Roth of the New York Times: "Asylum options appeared to narrow further on Tuesday for Edward J. Snowden, the former National Security Agency contractor on the run from American authorities, as at least nine countries reacted unfavorably to his requests for sanctuary and the Kremlin said he had withdrawn his application to Russia. Only Venezuela and Bolivia appeared to offer him a hint of hope for a way out of his limbo inside the international airport transit lounge at Sheremetyevo airport in Moscow, where he has been ensconced out of public view for nine days." ...
... Max Fisher of the Washington Post: "Edward Snowden's father Lon Snowden, in an open letter co-authored with his lawyer, compared his son’s leaks to Paul Revere warning of incoming British troops, 'summoning the American people to confront the growing danger of tyranny and one branch government.'" The Post article cites Lon Snowden's letter in full. CW: one of my ancestors answered the call of Paul Revere; I guess I'm a black sheep descendant, as I'm not shouldering my musket for Ed. ...
... ** Jon Chait of New York on Glenn Greenwald's brand of analysis: "Greenwald, like [Ralph] Nader, marries an indefatigable mastery of detail with fierce moralism. Every issue he examines has a good side and an evil side.... Nader and Greenwald believe their analysis not only completely correct, but so obviously correct that the only motivation one could have to disagree is corruption." Thanks to Haley S. for the link. CW: this is precisely the style of "journalism" about which I've written. While this style can occasionally be close to accurate (think a monkey typing a Shakespeare sonnet), it usually is a cringe-inducing, unreliable polemic. Unfortunately, these disputatious diatribes "work" on the unwary, & Greenwald has led many a naive reader astray. ...
... Leonard Schrank & Juan Zarate, in a New York Times op-ed, on how the NSA could balance security & privacy concerns. CW: I don't like their model at all (which gives more power to a private corporation than to government workers), but they do claim to have overseen a program that worked because it had built-in safeguards. So if that's true, it seems likely Congress could structure the NSA programs in ways that would protect Constitutional freedoms while still being effective security operations. ...
... Contributor Ken W. helpfully points us to this May 22 post by David Cole of the Nation on why the courts & Congress have not accorded Fourth Amendment protections to e-mails, cellphone data, etc., that are routed & collected through third parties. CW: I would add that the original non-governmental purpose of e-mails was intra-company communication; the third party that maintained the network was the corporation or other entity, & the e-mails were business memos, not private notes among friends (or spam!). The writers were as careful in writing e-mails as they were in writing paper memos. The e-mails were conceived & sent with no expectation of personal privacy. Here's a brief history of e-mails, but you can take the concept back to the telegraph & telegrams, where a third party obviously read & keyed in messages of a private nature.
Sarah Kliff of the Washington Post: "The Obama administration will not penalize businesses that do not provide health insurance in 2014, the Treasury Department announced Tuesday. Instead, it will delay enforcement of a major Affordable Care Act requirement that all employers with more than 50 employees provide coverage to their workers until 2015. The administration said it would postpone the provision after hearing significant concerns from employers about the challenges of implementing it." ...
... Elise Viebeck, et al., of the the Hill: "Delaying the requirement until 2015 is an enormous victory for businesses that had lobbied against the healthcare law. It also means that one of healthcare reform's central requirements will be implemented after the 2014 midterm elections, when the GOP is likely to use the Affordable Care Act as a vehicle to attack vulnerable Democrats." ...
... ** Ezra Klein: "Delaying Obamacare's employer mandate is the right thing to do. Frankly, eliminating it -- or at least utterly overhauling it -- is probably the right thing to do. But the administration executing a regulatory end-run around Congress is not the right way to do it." Klein lays out what he finds wrong with the employer penalty, most important, that it's a disincentive to hire full-time, low-wage workers.
Jennifer Bendery of the Huffington Post: "Vacancies at district courts are so high right now that they're 'breaking with historical patterns' and burdening the judicial system like never before, according to a report released Tuesday by the nonpartisan Brennan Center for Justice at NYU School of Law.... A major reason for the district court vacancies is that senators -- namely Republican senators -- simply aren't making recommendations to the president in the first place." ...
... Jonathan Bernstein in the Washington Post: "What happened here is simple: Republicans, in January 2009, extended the war over the judiciary down to the bottom level. Supreme Court judges and Circuit Court judges have been battlegrounds for some years, and rightly so: There's plenty at stake in these lifetime appointments.
Benjy Sarlin of TPM has a good (long) piece on why the GOP thinks throwing Latinos under the bus is an excellent plan. One flaw in their "logic" Sarlin doesn't mention: if the GOP does toe the righty-white line, where are moderate suburbanites to go? Most will not jump on the anti-gay, anti-woman, anti-minority, anti-government bus. Plenty of disaffected middle-class dads voted for that nice Mitt Romney, but they're not apt to vote for Rand & Ted ticket in 2016. ...
... Francis Wilkinson of Bloomberg News: "Republican policies already cater to an increasingly narrow tranche of American society: the rich and the old (who, not coincidentally, happen also to be white). When they wax nostalgic over the era of institutional racism and sexism, it sounds like moral obtuseness to most younger, more diverse voters. And so it is."
Philosopher Gary Gutting of the New York Times explains governance to shut-ins -- & revolutionaries on the far-right & far-left. Gutting's explanation is simple & simply-put, but it's a straightforward lesson for radicals.
Missed this, but last week Ian Millhiser of Think Progress posted a list of 10 reasons that "no one should lionize Justice Kennedy."
Local News
Tom Jensen of Public Policy Polling: "PPP's new Texas poll finds that Wendy Davis made a good impression on voters in the state last week- but that Rick Perry has also enhanced his political standing considerably over the last five months, making him tough to beat for reelection.... Davis would trail Rick Perry by 14 points in a hypothetical match up, 53/39." ...
... Peter Hamby of CNN: "Rick Perry is inviting close friends and supporters to an event next Monday in San Antonio where he is expected to announce if he plans to seek an unprecedented fourth full term as Texas governor...."
Steve Benen on North Carolina Republicans' trashing of democracy. "Originally, GOP lawmakers in North Carolina held back on pursuing voter-ID laws, knowing how racially discriminatory they are. But thanks to the Supreme Court, they no longer care. What's especially interesting to me as how thin the pretense is." CW: if you want to know how Republicans really plan to be successful as a whites-only party, North Carolina provides a few clues. It's not about getting out the white vote; it's about brazenly suppressing the votes of minorities & other Democratic-leaning groups. And doing it "legally" provides evah-so-much better optics than the traditional clubbing, hosing & murdering methodology. Thanks, Supremes! ...
... Mark Binker's headline on a WRAL post is a classic: "Senate tacks sweeping abortion legislation onto Sharia law bill." Just to let you know that the gerrymandered representatives of the people are racists AND misogynists.
Reader Lyle K. sends along this photo (which I've cropped) of a sign "at Milwaukee's Billy Mitchell Field. After disrobing to go through the security checkpoint, this space is provided to help travelers put themselves together again." Lyle says he "thought this photo might help people appreciate that Wisconsin has some good things about it, not just nasty people that make the news to give WI a bad reputation." CW: One thing Wisconsin obviously has is some government or airport employees with both a sense of humor & compassion for their customers; that's well-worth noting:
News Ledes
Washington Post: "Douglas C. Engelbart, a computer science visionary who was credited with inventing the mouse, the now-ubiquitous device that first allowed consumers to navigate virtual desktops with clicks and taps, died July 2 at his home in Atherton, Calif. He was 88."
Orlando Sentinel: "Jurors heard from evidence analysts and George Zimmerman's college professors today as prosecutors came close to wrapping up their case against Zimmerman in the shooting death of 17-year-old Trayvon Martin. Court recessed for the day about 5:30 p.m. The trial resumes Friday at 8:30 a.m."
New York Times: "As [Egypt] edged closer on Wednesday to a return to rule by the generals, with a military deadline only hours away for President Mohamed Morsi to cede power, both the Egyptian leader and army commanders pledged to spill their blood to achieve their aims, propelling the crisis further toward a showdown." ...
... Reuters: "Egypt's armed forces would suspend the constitution and dissolve an Islamist-dominated parliament under a draft political roadmap to be pursued if Islamist President Mohamed Mursi and his opponents fail to reach a power-sharing agreement by Wednesday, military sources said." ...
... ** New York Times Update: "Egypt&'s military on Wednesday deposed Mohamed Morsi, the nation's first freely elected president, suspending the constitution, installing an interim government and insisting it was responding to the millions of Egyptians who had opposed Mr. Morsi's Islamist agenda and his allies in the Muslim Brotherhood." ...
... The Times is liveblogging Egyptian events. The Guardian's liveblog is here. ...
... ** New York Times Update: "Increasingly alarmed about the violent Egyptian political upheaval, the United States sharply raised the threat level in its travel advisory to Egypt on Wednesday, warning [U.S.] citizens to defer visits and advising American residents there to leave."
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Reader Comments (18)
In the June 10-17 edition of The Nation, David Cole offers an insight into the tricky and ambiguously signed intersection between assertions of privacy rights and the reality of data-mining that we find ourselves trying to negotiate:
http://www.thenation.com/article/174499/aps-privacy-and-ours#axzz2XxPaCK
In short, the law considers phone companies a "third party" that stands outside strictures on the "reasonable expectations of privacy," which by law we forego when we make a phone call or transmit data on our phones.
Cole also has some interesting things to say about the (lack of) legal restrictions on collecting e-mails, whose privacy was originally protected for six months, a compromise with reality when storage space was limited and mails naturally dissipated into their component bits about that time. Now that the "cloud" provides infinite storage forever and ever, the old rules, enforced or not, no longer apply.
Snowden doesn't like it and in many ways neither do I. But I'm not sure Snowden, despite his technologic expertise, really understands the legal underpinnings of all he does not like.
It is a brave new world that neither the courts nor congress seem to understand either. Certainly legal opinions and legislation have not even begun to catch up with today's disturbing reality. Nor do I see much in their behavior that makes me think the courts or congress really wish to.
Mr. Winkes raises a very important point point, and that is our technology is advancing faster than our ability, or willingness, to deal with it.
It simply isn't right to say that, because our e-mails or cell phone calls pass through the hands of a third party, we have no expectation of privacy when making a call or sending a message. Our snail mail and land line phone calls - which are going the way of the dinosaur - all had to pass through the hands of a third party to reach their destinations, yet law enforcement always needed a warrant to read your mail or tap your phones.
What is it about the electronic nature of today's communications that make them less worthy of constitutional protection than older forms of communication?
And think carefully about your response, because the mail and land line phone calls will be a thing of the past a lot sooner than you think, and if you decide electronic communications are not protected there will be no way for us to communicate privately with anyone.
On a related note, it really doesn't matter what the genesis of e-mail was; it only matters how it exists now. Believing that circumstances never necessitate a change of thinking about the law leads us places we shouldn't go.
The second amendment is a perfect example. It was created during a time when the US had no standing army and no national guard. The right to keep and bear arms was guaranteed because the government needed to call upon an armed citizenry from time to time to safeguard its own existence (see Shay's Rebellion).
The need for a citizen militia disappeared a long time ago, and with it the need for a second amendment. But there it is, enshrined into law, and nobody will ever change it, at least not in our lifetimes.
So when we think about technology and the way the law is going to deal with it, we have to understand that the law is going to have to adapt to new realities; and because technology changes so rapidly, those realities are changing faster than they ever have before.
Some assert that the new nature of technology means that none of us can expect to ever enjoy the level of privacy our parents did, that we have to abandon the notion that the right to be left alone is, as Brandeis put it, "the most comprehensive of rights and the right most valued by civilized men." And while that may ultimately prove to be true, I'm not ready to go there yet. I'm not willing to believe we can't live our lives free of the threat of violence without giving up other freedoms that, to me, are just as dear.
Noodge,
I get your consternation over the e-mail issue but keep in mind that although it's called *-mail, and although it feels and (sometimes) reads like old fashioned written letters, it is an entirely different animal. Think of it like this, digital video can look and feel like old fashioned film but they are in no way alike (except on the surface). Film was and still is, in some quarters, a completely analog technology. Digital video is 0s and 1s. They are completely different paradigms; shot, edited, and stored in much different ways.
You are correct that opening and reading another person's mail without a warrant is a federal offense and third parties (postal employees, mostly) handled the communications, but they were simply a delivery system. E-mail, on the other hand, is a different system entirely. It resides on servers owned and operated by businesses, mostly, and they have every right to read what you are sending through their systems. That's not just a connection to how e-mail originally existed, it's still a reality today. And this in part is what makes e-mail different than traditional mail service.
That's not to say that it has to remain that way but any effort to guarantee that e-mail be treated as sacrosanct, say, as snail mail, may run into a lot of interference. When I write something in a Google e-mail about ancient Greek history, ad bombs are detonated around my screen for trips to Greek sites and for books about Greece. Google is "reading" my mail. This is how they fund the service that I use for free. It's all a bit creepy but I'm used to it now. I don't believe some actual person is reading what I write, but software is looking for key words, collecting and collating data and responding with custom ads. Google then uses the collective data to refine their business model. They are providing me with a service without a fee and in return they sell my "views" to advertisers who support that service.
My business e-mail system is provided by my employer and is free for my use but with restrictions, one of which is that they can read anything I write that passes through their servers (and fire me if what I send runs up against company policy. You can send a mash letter to someone in a private correspondence and get, in return, the cold shoulder, a sternly worded warning, or a punch in the nose, but you probably won't be fired for it.)
As a practical matter I'm just not sure what kind of workable solution might be devised apart from a subscription service in which senders pay for each e-mail delivery much as we use stamps to pay for the delivery of physical mail. But there is still every reason to believe that even those systems would and could be hacked.
Technology has always presented us with choices, some of which require a delicate balancing act, and others of which are extremely difficult to balance. Freedom vs. security, for example, are two concepts that give the old fulcrum a regular workout.
I tend to take a utilitarian approach to much of this (greatest good for the greatest number sort of thing) but with the understanding that some bad will come along for the ride. In any event, I'm open to any plan that would provide for a more acceptable balance.
I read the Gutting piece on governance with some reluctance after spying the sidebar that advertised yet another "both sides do it" exposition.
Okay, you can posit the Greenwald/Snowden thing as a "far left revolutionary" action if you want but it isn't. Neither man is calling for revolution and government overthrow the way Teabaggers and obstructionist/secessionist conservatives are, and have been, doing for a long time and under many, many circumstances. Neither is threatening to shoot people if they don't get their way. They are making a point about what they (and many others) consider unacceptable domestic spying. They are not trying to obstruct health care, banking oversight, judicial operations, legislative actions, twist elementary and high school education into a mainline delivery system for left-wing ideology, and actively seeking to thwart the everyday operation of government.
It's like comparing years of NFL games played by thousands of behemoths in enormous stadiums with two kids playing touch football in their backyard. Snowden and Greenwald are not in the business of upending the government of the United States and turning it into a far left ideological fantasy land.
The Snowden Affair is one example set off against hundreds of examples from the right. How that translates into "both sides do it" is beyond me.
And pisses me right off.
"U.S. Postal Service Logging All Mail for Law Enforcement"
Even snail mail is being monitored. All of it.
http://www.nytimes.com/2013/07/04/us/monitoring-of-snail-mail.html?hp
Privacy? Anyone old enough to remember when there were switchboard operators in your town? One ringy-dingy??? Two ring-dingy! They knew the town business inside and out.
One thought about Snowden as a Man Without a Country. Perhaps the solution lies within the Edward Everett Hale short story. Snowden could remain at sea, transferred from ship to ship, never touching down at any port. Perhaps like the Philip Nolan character in the Hale story, he would come to find that were some good things about the nation he left behind.
Or not.
As it happens, the Snowden Affair, with countries refusing passage to planes through their air space rather than run the risk that Snowden may be stowed away on board and everyone running around with their noses to the ground looking for the elusive but ever voluble Mr. S., has made a sharp turn from eloquent and tragic short story into broad farce.
Rather than Man Without a Country it's becoming more like The Mouse That Roared.
There is probably no way to keep the law from nosing around your stuff if you are suspected of criminal activity or terrorism, even if there's no basis for the suspicion. If you're famous (or even if you're not but are in the news for some reason), count on Rupert Murdoch's crack "journalists" to hack your mail & your phone calls & go thru your garbage, then print what they found in their high-class publications.
For people like Noodge, who are super-concerned about maintaining the secrecy of their communications, I'd suggest communicating through encrypted programs. You have to pay for most of these services, as Akhilleus suggests, but Firefox Thunderbird's Enigmail is cost-free. The feds can still get a warrant to look at your stuff, but they can't legally just ogle it for fun when they're bored, as some NSA workers did to military personnel who were calling their significant others.
As someone who's had her personal snail-mail stolen & made public, I know it's not pleasant, & in most instances (including mine) it's illegal -- and pretty low-down. But a lot of people & some institutions are snoops. So rather than just whine that it's unfair, illegal, unconstitutional or whatever, it seems the antidote is to (a) get over it, or (b) take action to make your own situation better.
And no matter how outraged we get at this, that or the other thing (I'm often outraged), it's always good to remember that life isn't fair, and there are limits to what we can do to make it more fair. Should we try? Well, yeah. Should we consider it the end of civilization when we fail? Nah.
@MAG: thanks to the link to the NYT story on snail mail covers.
Marie
Re: Times they are a'changing: Back when dinosaurs roamed free I was part of a union contract that said if you film or record the live event I was stagehanding on; you paid me a premium (time and a half) because you, the producer, profited off my labor after the event took place. That went away with the advent of cam-corders, IPhones and all the rest of digital recording devises. First, you can't stop the hand-held. Second, no longer do you need a camera position platform or cabling or recording positions. So that part of the contract was no longer enforceable. The Grateful Dead realized a long time ago that the best way to deal with bootleg recording was to let everybody record all shows. Never hurt the sound a bit AND the recording pit was the best party in the house or arena. What a long strange trip it's been.
Must be old movies week. Ak's mention of "The Man without a Country” brought to mind a short movie of the same name that I’d seen in my grammar school class. What impressed me most about the dramatization of poor Philip Nolan’s fate (I must’ve 8 or 9) was it was the first film I’d ever seen in Technicolor. I think the moral of the story was lost on me, but I was forever hooked on Technicolor.
And speaking of strange trips, we would be remiss were we not to acknowledge, in this age of social stress and political dysfunction, that today is the birthday of the godfather of literary paranoia, Franz (why are you looking at me like that?) Kafka.
What he would have made of spooks espying his mail I can't say, but he may well have thought Josef K got off easy compared to modern denizens of the surveillance state and rendition to black sites.
Pace, Franz, and danke.
Listening to Al Jazeera on my laptop. According to the state media, there is to be announcement in about 45 minutes. The head of the Coptic Church will be reading the announcement, ElBaradei will also be present. Purportedly, the plan is an "interim" government and new elections. Yikes. Birth of democracy is scary. NPR reporting that Human Rights Watch is reporting that Tahrir Square is the site of 90 sexual assaults.
Military head announced the suspension of the Constitution and the Chief Justice of the Supreme Court as interim President with the power to hand down directives. Looks like Morisi is gone.
Having an ear and eye out for the turmoil in Egypt, the snooping business is on my back burner which come to think of it, it always was. But just a word about those nifty cameras that one can put in indivisible places and record something that can change an election to some extent like, oh, I don't know–Romney's speech about the 47 per centers? I'd like to remind Noodge who says, "law enforcement always needed a warrant to read your mail or tap your phones." That never stopped J.Edgar who did what he wanted to do when he wanted to do it for decades. The deal that was made between Hover and those who had things to hide was a big deal and involved some kind of pay back––like money or access. Lots of power for one little man who had lots of things to hide himself.
@MAG: You reminded me of the party lines we used to have when I was a wee one and how I'd listen in to conversations between Mrs. Zumbuttal and Mrs. Malony. Neither gave out any salacious goodies nor titillating tales, but what fun it was to snoop until mother came along and grabbed the phone from me.
@Akhilleus: Franz used the word "vermin" quite a bit and I think it a word we may want to bring back in favor. I think Franz would approve. (I'm talking to YOU Texas and N.C. and Ohio).
Morsi may not have been George Washington but he was elected. As Diane suggests, democracy ain't easy. Which explains all the vote stealing and electoral shenanigans by the GOP. Now if only they could learn from the Egyptians how to depose a democratically elected president they don't like...
PD,
Can we make that "stinking" vermin? Or is that a redundancy?
And really we can't apply that soubriquet to all residents. Just to those most vermin like.
Whatever "nuances" you want to wrap it in, Egypt just experienced a coup d'état. Regardless of "coalitions" of religious, political, civil organizations, he was as is mentioned above democratically elected and still has a major following who are declaring to shed their blood before they sit aside and let the military take over (again). Scary stuff. We've got major discombobulation at home but nothing compared to this, ahem, clusterfuck. Wouldn't want to be in Obama's shoes right now.
And on another note, acculturation has arrived just in time for the US military! While force feeding our detainees, we'll be respecting their religious practices by only shoving the tubes down their throats at night time so they can properly fast during the day. Things like this make me feel fuzzy inside right in time to celebrate our independence day and remind ourselves about the values (?) our country was founded upon.
http://www.theatlanticwire.com/politics/2013/07/gitmo-detainees-ramadan/66783/
Al Jazeera is reporting that some of the Muslim Brotherhood political leaders have been arrested. ElBaradei, the Coptic Pope and a cleric described as the leader of a much more fundamentalist sect than the Muslim Brotherhood all spoke briefly, urging inclusion and the democratic process. I seem to remember one of the reasons ElBaradei withdrew as a possible presidential candidate had to do with what he felt was the rush to an election. He warned that the Muslim Brotherhood was the only group who would be prepared for the election. However the removal of Morsi is eventually defined, I sincerely hope the US just lets Egypt sort it out themselves. You can't expect a flawless transition to Democracy in 2 years. Jeebus, we haven' figured it out yet.
I would guess that what the ouster of Morsi by the military says is if you're going to claim to be a democratic government, you have to act like a democratic government. This is not particularly new or startling in that part of the world; Turkey has a history of ousting the religious autocrats when they begin dictating civilian mores. (And they may be close to doing it again.)