HANDOUT
http://
astoundingideaselectronicsurveillance.blogspot.com/
• Resolved: The United States federal
government should substantially curtail
its domestic surveillance.
Intelligence Squared debates
Intelligence Squared Debates
The remedy for
over-secrecy is to
think in terms of
coveillance, so
that we make
tracking and
monitoring as
symmetrical —
and transparent
— as possible.
That way the
monitoring can be
regulated,
mistakes appealed
and corrected,
specific
boundaries set
Economics is about Incentives
★
★
Economics is about incentives, information,
markets, and coordination.
Economics helps us understand companies
producing, trading, competing, and earning profits
(or having losses). But economic principles apply...
★
Public Choice economics is the study of politics,
government, and policy. Government incentives?
★
What incentives does the federal government have
to engage in pervasive surveillance?
http://law2.umkc.edu/faculty/projects/
ftrials/conlaw/rightofprivacy.html
Bill of Rights: Fourth Amendment
• 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.
The Bill of Rights, however, reflects the concern of
James Madison and other framers for protecting
specific aspects of privacy, such as...
• the privacy of beliefs (1st Amendment),
• privacy of the home against demands that it be used to house
soldiers (3rd Amendment),
• privacy of the person and possessions as against unreasonable
•
searches (4th Amendment), and,
the 5th Amendment's privilege against self-incrimination, which
provides protection for the privacy of personal information. • In addition, the Ninth Amendment states that the "enumeration
of certain rights" in the Bill of Rights "shall not be construed to
deny or disparage other rights retained by the people." Ways to View Privacy...
The Alien and Sedition Acts
• Fear of companies gathering more and more data on
• The Alien and Sedition Acts were four bills passed in
• Fear of terrorists, so surveillance to uncover terrorists
•
everyday people: Google, Target, insurance companies.
plots before they happen.
• Government/IRS looking for income to tax.
• Party in power looking for donations to opponents.
• Fear of government, and tendency to use surveillance
to weaken political opponents and to cover up
government mistakes.
•
•
1798 by theFederalists in the 5th United States Congress
during an undeclared naval war with France...
They were signed into law by President John Adams.
Proponents claimed the acts were designed to protect the
United States from alien citizens of enemy powers and to
prevent seditious attacks from weakening the government.
The Democratic-Republicans [called them] unconstitutional
and designed to stifle criticism of the administration...
Major political issue in the elections of 1798 and 1800.
www.princeton.edu/~achaney/tmve/wiki100k/docs/Alien_and_Sedition_Acts.html
• large-scale spying on
Americans got its real
start in 1917, when
the United States
entered World War I.
• President Wilson
http://www.fee.org/the_freeman/detail/
the-dawn-of-the-surveillance-state
www.independent.org/newsroom/article.asp?id=101
claimed ... Germany
had “filled our
unsuspecting
communities with
vicious spies and
conspirators and
sought to corrupt the
opinion of our people
in their own behalf.”
• Most of the surveillance apparatus was dismantled
• The next day, Congress gave teeth to his warning with
after the war was over, and communications
returned to private hands.
the Espionage Act, which criminalized opposition to the
war. In 1918, the Sedition Act made prohibitions on
dissent even broader.
• However, the Sedition Act, which made it all
FBI)...creating the American Protective League (APL)...The
APL ... was nominally private, ...1,200 branches put local
public schools under surveillance,
• [H]istorian Lon Strauss has written, we can “see
• The Bureau of Investigation (later called the
• APL members detained over 40,000 people, opened
mail, and raided factories, union halls, and private homes.
“In the 1980s, the Supreme
Court ruled people don’t have an
expectation of privacy from
overhead visual aerial
surveillance, but [it] reserved the
right to consider situations in
the future where airplanes were
equipped with other
sophisticated equipment, like
cameras, that would enable mass
surveillance,” Fakhoury said.
http://news.heartland.org/
newspaper-article/2015/07/16/
domestic-government-spy-programjeopardizes-citizens-rights
“With this program, it appears
that time has come,” Fakhoury
said. “The fact these planes are
equipped with powerful
technologies like precise
cameras or [international mobile
subscriber identity] catchers
requires a reexamination of
those earlier cases.”
possible, still remains on the books, though in a
more limited form. In 1971, it was used to indict
Daniel Ellsberg for leaking the Pentagon Papers,
the foundation that influenced subsequent
decisions….There’s a direct connection with the
type of surveillance state that produced the NSA;
that foundation was created in the First World War.” A History of Federal Surveillance
•First federal government surveillance policy?
•Federal surveillance and war.
•The modern era: World War I
(transforms U.S. policies).
New Deal Social Security and business cartels.
World War II, Korean War,Vietnam, Cold War.
Beirut, Oklahoma City, 9/11 and U.S. Middle
East policy.
•
•
•
The FBI and Senator Church
From Beirut, Lebanon to 9/11
In the 1700s sensitive letters often written in
secret code. Governments searched homes and
papers for incriminating statements.
Missed intelligence in Beirut ...
How did America’s Founders respond?
After each, President Reagan, Bush
and federal security agencies
expanded U.S. surveillance in fear of
extent of terrorist networks and
operations
John Poindexter team gathers realtime intelligence on terrorist attacks
Surveillance by the U.S. government has a long
history. The federal government postal monopoly...
Frank Church 1970s Senate hearing on FBI
domestic spying. 500,000 U.S. citizens labeled as
potential “subversives,” from John Lennon to the
John Birch Society.
Oklahoma City bombing
1895 – 1972
Before 9/11 and after...
No Fishing...
Throwing Away Key Intelligence Data
Kleinsmith at Army Intelligence developed data mining
tools identified Al Qaeda network in 2000.
But his information on Al Qaeda operatives in the United
States ran up against electronic surveillance law mandating
that such information not be held beyond ninety days.
So, nearing the ninety day legal limit and under pressure
from Army lawyers, Kleinsmith deleted from his computer
all information about the Al Qaeda network.
This information could have enabled the FBI or local police
to detain Al Qaeda terrorists before 9/11, or at least stop
them for questioning at airports.
Ways to View Privacy...
• Fear of companies gathering more and more
data on everyday people: Google, Target,
insurance companies.
• Fear of terrorists, so electronic surveillance to
uncover terrorists plots before they happen.
• Fear of government, and tendency to use
surveillance to weaken political opponents
and to cover up government mistakes.
• United States Sen. Rand Paul (R-KY) is suing the Internal
Revenue Service and the Department of the Treasury
over the constitutionality of the Foreign Account Tax
Compliance Act (FATCA).
• Paul and six other plaintiffs argue the Department of
the Treasuryais using FACTA to bypass the legislative
branch of government’s exclusive authority to approve
treaties with foreign nations.
http://news.heartland.org/newspaper-article/2015/07/27/senrand-paul-sues-irs-over-overseas-banking-tax-program
National Security Concerns & Incentives
• To locate terrorists and potential terrorists.
• But who are potential terrorists? Islamic “fundamentalists” who see faith as higher value than the state...
• Tea Party Patriots? Right-wingers? Gun club members?
Out-of-control homeschoolers?
• Think incentives. What are other incentives for
•
federal government officials, in addition to security
and national defense?
Staying in office? Suppressing political opposition?
Collecting taxes? Regulations?
Mistakes will
happen...
• When you listen in on other people’s
conversations, sometimes you mishear or misunderstand.
• All of the high-profile domestic terrorism plots of the
last decade, with four exceptions, were actually FBI
sting operations—plots conducted with the direct involvement of
law enforcement informants or agents, including plots that were
proposed or led by informants. According to multiple studies, nearly 50
percent of the more than 500 federal counterterrorism convictions
resulted from informant-based cases; almost 30 percent of those cases
were sting operations in which the informant played an active role in
the underlying plot. (HRW, Columbia Law Sch.)
http://
www.learnliberty.org/
videos/does-nsaviolate-yourconstitutional-rights/
http://www.learnliberty.org/
videos/whats-next-in-thebattle-over-nsa-surveillance/
billofrightsinstitute.org
http://billofrightsinstitute.org/blog/
2012/11/27/are-they-watching-youelesson/
http://billofrightsinstitute.org/resources/educator-resources/lessonsplans/current-events-and-the-constitution/snowden-and-the-nsa/
NSA scandal's many dimensions...
NSA Tripwires
IRS targeting commenced on
Jan. 25, 2012 — the beginning of
the election year for President
Obama’s second campaign. On that date: “the BOLO [‘be on the lookout’]
criteria were again updated.” The revised criteria included “political action
type organizations involved in … educating on the Constitution and Bill of
Rights.”
For example, this IRS tripwire would not be triggered by arguing that the
NSA should collect the phone records of every American citizen. But it
would be triggered by teaching that the Fourth Amendment forbids
“unreasonable searches and seizures.”
• Mass domestic surveillance of
telephone call information;
• Allegations that officials deceived Congress, the courts, and
the public about the nature of the NSA's programs;
• Alleged access to the Internet's backbone and the traffic of
major Internet companies; and
• Systematic efforts to undercut the use of the encryption
that secures communications and financial information.
Also: Intelligence Squared debates
•
Let’s say you’re interested in 18 U.S.
Code § 2516, the part of the U.S.
code that authorizes interception of wire, oral, or electronic
communications....
•
Those hyperlinks are democratic links, letting people know what
Congress is doing, so people can look into it and have their say. Does
liberty automatically break out thanks to those developments? No.
But public demands of all types—including for liberty
and limited government—are frustrated now by the
utter obscurity in which Congress acts. We’re lifting the
curtain, providing the data that translates into a better informed
public, a public better equipped to get what it wants.
• ...the most basic right of "sousveillance"
or looking-back at power, that The
Transparent Society is all about. It is also fundamental
to freedom, for in altercations with authority, what
other recourse can a citizen turn to, than the Truth?
• Kevin Kelly's Why You Should Embrace Surveillance,
not Fight it, in WIRED, prescribed “transparent
coveillance” as the best practical solution in a world
where information sloshes and duplicates and flows.
•Since June [2013], news reports based on
documents leaked by former National Security
Agency contractor Edward Snowden...
•Revealed the depth and breadth of NSA
surveillance activities.
•The NSA scandal's many dimensions...
www.wired.com/2014/03/going-tracked-heres-way-embrace-surveillance/
Consider the IRS...
• Federal Income Tax regulations
require that any and all income be
recorded and taxes paid.
• By nature that infringes upon privacy
and freedom of association.
• But it also creates incentives federal
electronic surveillance.
• SEC, FEC, and the other federal
agencies also want to know what
folks are doing and saying.
http://oll.libertyfund.org
Who’s Watching you?
Gregory F. Rehmke • www.EconomicThinking.org
AstoundingIdeasElectronicSurveillance.blogspot.com/
http://AstoundingIdeasElectronicSurveillance.blogspot.com
The Systematic Federal
Surveillance of Ordinary
Americans
Gregory Rehmke
www.EconomicThinking.org
http://www.independent.org/publications/tir/article.asp?a=283
http://www.learnliberty.org/
course_details/understandingnsa-surveillance/
• [E]xtensive federal data collection creating
• Databases keyed to Social Security numbers
•
• Labor databases— ... federal database of all
•
ever greater incentives to behave as
government wishes us to behave...
[T]he computer’s ability to digitize
personal information as offering “the state
and society a powerful way to control the
behavior of individuals”
[C]entral government data-collection
programs ... share one defining
characteristic: they compel production,
retention, and dissemination of personal
information about every American citizen.
— ...use of those numbers as a fulcrum for
government data collection about individuals...
American workers and requiring employers to
obtain the central government’s approval before
hiring employees;
• Medical databases—...“unique health identifier”
and implementation of the national electronic
database of personal medical information
mandated by the 1996 Health Insurance
Portability and Accountability Act;
continued...
• Education databases—... federal databases
mandated by the 1994 Goals 2000 Act,
Improving America’s Schools Act, and
related legislation that establish detailed
national records of children’s educational
experiences and socioeconomic status;
• Financial databases—describing provisions
of federal statutory law requiring banks and
other financial institutions to create permanent,
readily retrievable records of each individual’s
checks, deposits, and other financial activities.
www.cato.org/publications/policyanalysis/leashing-surveillance-statehow-reform-patriot-act-surveillanceauthorities
•
Two of the provisions slated for sunset—roving wiretap authority
and the so-called “Section 215” orders for the production of
records—should be narrowed to mitigate the risk of
overcollection of sensitive information about innocent Americans.
•
A third—authority to employ the broad investigative powers of
the Foreign Intelligence Surveillance Act against “lone wolf ”
suspects who lack ties to any foreign terror group...
•
Review and substantially modify the statutes authorizing the
Federal Bureau of Investigation to secretly demand records,
without any prior court approval, using National Security Letters.
www.cato.org/publications/policy-analysis/leashingsurveillance-state-how-reform-patriot-act-surveillanceauthorities