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Domestic Surveillance / Reasonable search

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SInce the other two thread that addressed domestic surveillance is mixed and has veered to a discussion on Islam, I figured I'd start a specific topic.

What ought to be the limits imposed on domestic surveillance by the government?

Objectivist intellectual Harry Binswanger posted something to his web-site. It's bound to be controversial, so I thought I'd post it if anyone wishes to discuss it.

 

I agree with the The Wall Street Journal: there is nothing inherently wrong with the government having collected "meta data" about phone calls and such. The collection of this information has, reportedly, enabled the government to quash planned terrorist attacks, e.g., an attack on the NYC subways that was in the works in 2009. (Some are objecting that the PRISM data-collection program was not a necessary input in the foiling of that attack; but even if it wasn't, it's better to have all the the sources of information we can.)

In general, I'm not scared by government invasions of privacy. I have no secrets. Those who raise the specter of Big Brother are not on a wrong basic premise, but they are being unrealistic: when and if we fall into the grip of totalitarianism, there will be nothing to stop the dictatorship from spying on us by any means it wishes. Such a regime does not require that the tools have been set up in advance.

This is not to say that the present government should be given carte blanche. And some reining in may well be called for. But alarmism here is unwarranted and counter-productive.

Good point? Food for thought? Completely wrong? Something else?

The topic is actually broader than just telephone records. For instance, should cops be allowed to search a car that they have stopped for some reason other than reasonable suspicion about its contents? What are reasonable limits to what the government should be allowed to do?

Edited by softwareNerd

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HB's comments are a total sell-out. They constitute gutless, mindless faith. These comments are based on irrational hope. A government with integrity would not even want to keep such records.

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I think the government should be constantly limited, with repeated checks on those limits, in every way. Government attracts power lusters and is not directly controlled by the people, who have better things to do (getting on with their lives). History shows that government will not regulate itself. I think always erring on the side of skepticism, suspicion, and caution is best. "Safety" is a catch-all that will just be exploited to add controls, as is evident today.

Of course, if the government was doing its job, terrorists and other criminals would be scared to act against the American people, who would understand the importance of freedom and would only support good government.

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I think Edward Snowden made the point perfectly, in his Guardian interview: your communications and financial activity is all stored and cataloged by the government. No one reads it, of course, because frankly they don't care. But, it is stored and ready to be accessed and used against you if needed.

We don't have to become North Korea before someone uses it against you. It could be used against you even today. And not because you've done anything wrong. All is required is the mere appearance of wrongdoing, and your career, business, government or private contract, public image, etc. can be compromised.

Not only that, but the people who do it will probably even get away with it, especially if they're high enough on the food chain. There are almost a million people with access to this info. Snowden, a simple employee for a private contractor, had access not only to the data, but even the court orders authorizing it. It's a massive bureaucracy, and, as we've seen many times in the past few years, it's pretty much impossible to hold wrongdoers accountable within it.

I'm not the "oh lord Jesus, 1984 is here" type, but as someone with a. some controversial political and personal views and habits and b. with ambition to make something of myself, the fact that most things I say and do have been logged and are available for query, worries me. Not because I fear a coming dictatorship, it worries me even if things don't change much.

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My dad used to pull over whenever a police officer was following him to let him pass; not because he'd done anything wrong, but because he was sure if the officer followed long enough, he'd find some reason to issue a ticket.

 

Legally obtained search warrents remain the only real check against abuse for probing into a person's private affairs. Minus some compelling reason for the use of force to penetrate and record private information, e.g. a criminal past, or being accused by a reliable witness, such activity is preemptive and therefore an illegitimate use of force.  And no, the possibility that the person being targeted might be doing something wrong doesn't justify the intrusion.  The presumption of innocence either means something, or it doesn't.

 

So far as Binswanger's comments go, I invite him to Twitter all his private conversations and see where that gets him.

Edited by Devil's Advocate

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... No one reads it, of course, because frankly they don't care. But, it is stored and ready to be accessed and used against you if needed.

Like all government bureaucrats, the security folk want more resources, more money, more data. And, it is sometimes true that if one throws an overwhelming amount of resource at a bureaucrat. Meanwhile, when the Russians named a suspect to them, they interviewed him and filed it away, until after he exploded a bomb at the Boston marathon. Edited by softwareNerd

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Lost in the "security vs. liberty" debate, is the alternative of abandoning the Fortress America defense in favor of bringing the fight to the enemy.  If we fought a real war against radical Islam, signal intelligence would be something that could be limited in scope and targeted to support offensive operations.

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Geographic location is inconsequential. Bringing the fight to the enemy means engaging in the enemy in cyberspace, since there is a lot of activity online. It would be suicidal to just treat cyberspace as nonexistent or not a real place. Bad people inhabit the Internet, thus data should be used.

It is not a though your presence online is all encapsulated inside a metaphorical car. Your presence online is more like walking the street, which is sensibly observable to anyone around you. If you do something suspicious, then all that observed data will be gathered and explicitly used. The only way to recognize suspicious activity is to gather data, whether it is a metal detector or an observation of strange and heavy bags. Seeing it is no violation of privacy, but opening the bags without a reason to suspect malicious intentions is. Meta data is no different than the mere observation of some action. It does not reveal anything unless someone investigates further "opening up" the meta data to make deeper conclusions that violate privacy.

Understanding how data works is important to understanding how this isn't all that threatening. Indeed, guidelines and checks should be formalized and perhaps even written up as an amendment to the Constitution, but the government has a need and even justification to store meta data. The bigger question is, to what extent should the government gather information in order to be functional? If the government cannot store any data in the digital age, it is truly useless. At the same time, infinite storage is probably improper.

What is the proper balance? I'm not sure.

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Excellent, excellent post Eiuol. You have encapsulated my thoughts on this subject exactly in your second and third paragraphs. I want to go further though by agreeing also with SkyTrooper: most of this would not be necessary if the government defeated the enemy, which is something that not only no one in government advocates today but most think is impossible.

Whenever government deviates from its only proper function (protecting our rights) it makes things worse, which necessarily (on the statist premise) begets more violations. So if we have government run schools, the quality of education goes down, which causes the statists to throw more and more money at the problem, prices go up while quality continues to go down. Not allowing free trade both nationally and internationally is a violation of our rights and causes higher prices, pressure group warfare and regulations, which beget more regulations making the markets even less free. Choosing not to identify and engage the enemy emboldens him, which causes you to have to build larger castle walls, which causes him to find other ways to kill you, which causes you to have to find more and more intrusive ways of finding him.

The only way to defeat the enemy is to show him that his ideology leads only to death and thus the only way for him to survive is to give up his ideology. Show him that the fountainhead of his ideology is impotent against a morally righteous, militarily superior opponent.

Stop the surveillance tomorrow by bombing Iran today.
 

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It is not a though your presence online is all encapsulated inside a metaphorical car. Your presence online is more like walking the street, which is sensibly observable to anyone around you. If you do something suspicious, then all that observed data will be gathered and explicitly used. The only way to recognize suspicious activity is to gather data, whether it is a metal detector or an observation of strange and heavy bags. Seeing it is no violation of privacy, but opening the bags without a reason to suspect malicious intentions is. Meta data is no different than the mere observation of some action. It does not reveal anything unless someone investigates further "opening up" the meta data to make deeper conclusions that violate privacy.

 

Gathering metadata for the purpose of screening it for suspicious activity attempts to avoid the presumtion of innocence by casting the net more widely, but the question remains as to why the net was cast in the first place;  terrorism?  fear??  Isn't this very much like saying, "Individuals are presumed innocent, but populations are presumed guilty?"  Legitimizing the screening of everyone's lives for suspicious behavior because there are criminals amongst us is only justified by the presumption of everyone's guilt, which innocents must then bear the onus to prove.

 

It's one thing to say that metadata is always there to be gathered, and quite another to gather it preemptively in order to screen for some future offense.  J. Edgar with his wiretaps was a piker compared to what is being done routinely today.

 

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The use of the term "meta-data" is actually a misnomer here. It is used in order to lull people into thinking that data is not being collected. A record of who I call is data, not metadata.

It is pretty far-fetched to think that the government needs a broad sweep of everyone's call-history in order to detect terrorist activity. It seems pretty clear that this is a huge super-set of what they really need. The congressmen who claim that this huge superset has actually helped foil crimes are being disingenuous. It simply sidesteps the question of why a much smaller sub-set was not used.

Let's take the analogy of walking down the street. it is true that anyone can observe you at any point, including a cop. However, if the government actually did so, by installing camera's every 10 yards, adding facial recognition, etc. that would be unacceptable.

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  Why would that be unacceptable though? 

 

Take the example to its logical conclusion and you end up with everyone living in glass houses without clothing, being monitored by motion detectors, and GPS tracking... for their own safety?

 

On a side note, being a fan of shows like Survivorman and Dual Survival, and... well... OK, sometimes I watch Man, Woman, Wild...  anyway, I was appalled to see the Discovery Channel announce it's newest survival series, Naked and Afraid.  Now I'm beginning to understand the attitude of the target audience, or as Chance put it, "I like to watch" (from Being There).

Edited by Devil's Advocate

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Take the example to its logical conclusion and you end up with everyone living in glass houses without clothing, being monitored by motion detectors, and GPS tracking... for their own safety?

 

On a side note, being a fan of shows like Survivorman and Dual Survival, and... well... OK, sometimes I watch Man, Woman, Wild...  anyway, I was appalled to see the Discovery Channel announce it's newest survival series, Naked and Afraid.  Now I'm beginning to understand the attitude of the target audience, or as Chance put it, "I like to watch" (from Being There).

 

  That isn't its logical conclusion. No one is even close to compelling people to replace their walls for glass, that would violate someone's property rights. On the other hand the government could get businesses to work with it to collect information voluntarily. 

 

The government may only do what is legitimate within its role.

 

  If a neighborhood has a huge crime problem, and a local police force thinks that it can better protect people's rights by setting up camera's everywhere they can get permission to put them, would that be wrong? 

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If a neighborhood has a huge crime problem, and a local police force thinks that it can better protect people's rights by setting up camera's everywhere they can get permission to put them, would that be wrong?

Can you think of a real example where the police need to track the movement of every citizen? One can come up with all sorts of hypotheticals, and I'm sure there are some such ones where it will make sense. There are emergency contexts in which even really strict martial law can make sense.

There is absolutely no reason for the government to collect information on who is calling whom and associating with whom, when there is no reason to suspect any party to that association. It is very tempting for law enforcement to ask for everything: the poor general always says he is short of man-power. Bureaucrats knee-jerk reaction is to ask for much more than they really need. However, information that is private has scope for abuse. Someone may wish to keep some activity or relationship private even if it is legal. The government has no business knowing such information.

Even if the laws were mostly great, such information should not be in the hands of government: because it gives people in government a source of power that they ought not to have. But, we live under many categories of law that are illegitimate: laws in the areas of business, sex, immigration, taxation, drugs, alcohol, abortion, medication, drinking raw milk, throwing out certain types of garbage, and a host of other nitty-gritty. With all these illegitimate laws, the last thing one wants government to have is access to all relationships of all people. if they want to go after terrorists, that is obviously legitimate; but, then there ought to be something about some party to the "search" that relates that party to terrorism.

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  That isn't its logical conclusion. No one is even close to compelling people to replace their walls for glass, that would violate someone's property rights. On the other hand the government could get businesses to work with it to collect information voluntarily. 

 

Advances in thermal and radar technology will eventually make glass walls unnecessary, and cell phones and web cams can already be used to locate our position and see inside our homes.  The point is, what becomes of an individual right to property if the ability to gather such information is OK because it's there and may reveal some threat to public safety?  And how is the preemptive gathering of such information justified as a retaliatory use of force??

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@ softwareNerd - I think we are on the same page on this issue, or at least reading from the same book.  For clarity, I'm offering the following 2 references on metadata and the 4th Amendment to aid with future discussion:

 

"Metadata describes other data. It provides information about a certain item's content. For example, an image may include metadata that describes how large the picture is, the color depth, the image resolution, when the image was created, and other data. A text document's metadata may contain information about how long the document is, who the author is, when the document was written, and a short summary of the document.  Web pages often include metadata in the form of meta tags. Description and keywords meta tags are commonly used to describe the Web page's content. Most search engines use this data when adding pages to their search index."

http://www.techterms.com/definition/metadata
 

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." ~ 4th Amendment, US Constitution

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Can you think of a real example where the police need to track the movement of every citizen? One can come up with all sorts of hypotheticals, and I'm sure there are some such ones where it will make sense. There are emergency contexts in which even really strict martial law can make sense.

There is absolutely no reason for the government to collect information on who is calling whom and associating with whom, when there is no reason to suspect any party to that association. It is very tempting for law enforcement to ask for everything: the poor general always says he is short of man-power. Bureaucrats knee-jerk reaction is to ask for much more than they really need. However, information that is private has scope for abuse. Someone may wish to keep some activity or relationship private even if it is legal. The government has no business knowing such information.

Even if the laws were mostly great, such information should not be in the hands of government: because it gives people in government a source of power that they ought not to have. But, we live under many categories of law that are illegitimate: laws in the areas of business, sex, immigration, taxation, drugs, alcohol, abortion, medication, drinking raw milk, throwing out certain types of garbage, and a host of other nitty-gritty. With all these illegitimate laws, the last thing one wants government to have is access to all relationships of all people. if they want to go after terrorists, that is obviously legitimate; but, then there ought to be something about some party to the "search" that relates that party to terrorism.

 

  So you are afraid of blackmail and  expanding the power of a government that has so much legislation. That seems to be a good explanation.

  

 

Advances in thermal and radar technology will eventually make glass walls unnecessary, and cell phones and web cams can already be used to locate our position and see inside our homes.  The point is, what becomes of an individual right to property if the ability to gather such information is OK because it's there and may reveal some threat to public safety?  And how is the preemptive gathering of such information justified as a retaliatory use of force??

 

   Well I don't think information gathering has to rely on force. Not necessarily. It wouldn't be hard for a member of the NSA to convince a company to go along with a plan. Large companies support the government voluntarily all the time. We have the freest press in the world for example and most of it will bend its knees to power just to maintain a good relationship with it.  

 

   I have serious doubts about the "Right to Privacy" and was wondering if that was what people were basing their arguments off of. Fear of corruption was something that came to mind immediately when I saw this story, but the rights violations were minor compared to the vast majority of activity performed by "The United States". How this is was on the news all the time and the drug war disaster isn't is hard to explain. 

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Harry Binswanger said

 Good point? Food for thought? Completely wrong? Something else?

 

1. His first claim is that the NSA surveillance has prevented terrorist attacks. But is this true? Sure, people who are running the surveillance program say so, but is there any independent investigation? No, and HB's own handpicked example is self-admittedly not an example of the spying preventing an attack, so we have no evidence of this.

 

2. A totalitarian government will spy on us anyway, therefore it's okay, we just go ahead and let it spy on us now? How is that anything resembling a valid argument?

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Well I don't think information gathering has to rely on force. Not necessarily.

But the information gathering we are discussing in this thread is relying on force. All of it. None of this information was handed over voluntarily.

How this is was on the news all the time and the drug war disaster isn't is hard to explain.

Your question was "How is this unacceptable?", not "How is this more unacceptable than the war on drugs?".

Does this change in your position mean that your original question has been answered to your satisfaction, and you now understand why this is unacceptable?

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A record of who I call is data, not metadata.

Fair enough, but I'll just say that even if it's just data, that won't change what I said. If it's just data about some phone number X calling phone number Y, I'd call that meta-data still because it says nothing about content, it only tells the phone numbers. I've heard of no evidence that anyone is looking for content and listening to everything you say on the phone. This is not a net - it's closer to just a police officer walking down the street observing people. I acknowledge the bit about "a camera on every corner", but a camera is a lot more intrusive than meta-data. The only difference is you use a computer. No one is presumed innocent or guilty even, since there is not anything intrusive in the first place. That is, unless you imagine it like some FBI people sitting around literally listening to your conversations. Data is useless until someone processes it quite thoroughly, and that's when your privacy may be violated. No one is listening.

If there is no data collection, then the government is literally useless on the Internet. The problem is, while there is a degree of private space, there is also a degree of space that is just as open as a field in the forest. There's a difference between you as an individual and the pieces of data you send out. As an individual there are particular data points about your life, like birth dates or birth place, and information like the content of your emails, phone calls, etc. Then there is meta-data, like the time a call is placed, or how often a number receives calls. In a massive database, that says nothing at all, yet a database will establish a cyberspace landscape with which to traverse (it's digital space, not spatial territory though). If there is something really odd going on, perhaps calling to the middle of nowhere in Pakistan 20 times a day, then the data can be investigated further, as with any investigation. My only concern is if warrants are used to do further investigation.

"The government has no business knowing such information."

Part of my point is that *no one* knows information about you until and if you are investigated. Information is more informative than data, and requires analysis. As far as I've heard, there isn't necessarily any analysis (except presumably when a person is suspicious). Databases *have* data, but it doesn't follow that the government *knows* anything. Indeed, there is potential and scope for abuse, hence my reasoning to add an ammendment to the Constitution.

I appreciate the text of the 4th Ammendment, DA. I have to think about that more. My discussion here has to do with if collecting meta-data qualifies as an unreasonable search. My position right now is that meta-data is not in any way a search, so I see neither violation of the 4th ammendment, nor any violation of rights.

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If there is something really odd going on, perhaps calling to the middle of nowhere in Pakistan 20 times a day, then the data can be investigated further, as with any investigation. My only concern is if warrants are used to do further investigation.

I don't think anyone would have a problem if the government were reasonably selective about what data they gather. I can even see where the government would not want to make their filtering criteria public, but would rather take everything and filter what they want. If they were to do this, within a structure that kept the filterers segregated from others, and which destroyed the other data, that would be fine.

On warrants, I doubt the current system is adequate check, but I'd like to see some statistical summaries (e.g. total numbers of requests, total approved, number of people cover by such requests etc.) be made public.

Somewhat of an aside, but do your previous posts imply that it would be reasonable for a cop to note down the licence numbers of cars passing by him unless he has some reason more specific than that the data might prove useful someday?

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I appreciate the text of the 4th Ammendment, DA. I have to think about that more. My discussion here has to do with if collecting meta-data qualifies as an unreasonable search. My position right now is that meta-data is not in any way a search, so I see neither violation of the 4th ammendment, nor any violation of rights.

Except that the metadata isn't floating in thin air, to be collected by passers by. The government is using the threat of physical force to compel private companies to collect it and hand it over.

How is it not unreasonable search to compel Verizon to collect and hand over data on all its users? The 4th Amendment makes it very clear what kind of warrants can be issued: the kind where specific people's property is searched based on probable cause. Not the kind where everyone must hand over everything without probable cause.

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