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L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 725, June 16, 2013

The only reason we have plane and subway and
shoe bombers in America is because America
seems like a country in dire need of a good
plane, subway, or shoe bombing to foreigners.


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Lessons from the Libertarian-Conservative Border
by Terence James Mason
tjmason@oneamericanvoice.me

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Attribute to L. Neil Smith's The Libertarian Enterprise

"We managed to survive greater threats in our history... than a few disorganized terrorist groups and rogue states without resorting to these sorts of programs... It is not that I do not value intelligence, but that I oppose... omniscient, automatic, mass surveillance... That seems to me a greater threat to the institutions of free society than missed intelligence reports, and unworthy of the costs."
—Edward Snowden,1 as quoted in the Washington Post, 9 June 2013

"The purpose of the surveillance is enhanced security, a necessary goal to say the least. The price is a now formal and agreed-upon acceptance of the end of the last vestiges of Americans' sense of individual distance and privacy from the government. The price too is a knowledge, based on human experience and held by all but fools and children, that the gleanings of the surveillance state will eventually be used by the mischievous, the malicious and the ignorant in ways the creators of the system did not intend...Some of the reaction to the NSA story is said to be generational. The young are said not to fear losing privacy, because they never knew it. The middle-aged, who grew up in peace and have families, want safety first, whatever it takes, even excess. Lately for wisdom I've been looking to the old. Go to somebody who's 75 and ask, "So if it turns out the U.S. government is really spying on American citizens and tracking everything they do, is that OK with you?" They'll likely say no, that's not what we do in America."
—Peggy Noonan, "Privacy Isn't All We're Losing,"
The Wall Street Journal/Opinionjournal.com, 14 June 2013

Let me begin by providing a scenario and asking four questions. They are not rhetorical, they are fundamental to this whole debate.

Scenario:

Assume you are confident that a conspiracy exists to kill 3,000 people—or 100 people, or even one person—in a terrorist attack, but you have no clue who the conspirators are except that they live in a certain large area. You don't have identities, so getting a warrant is out of the question. So you can track telephone calls at random— numbers dialed and locations of callers—until you find some pattern which is suggestive such a conspiracy; perhaps one number calls a suspected terrorist in Yemen, and then with the database of previous phone call information in hand, you can track other persons who were called from this number, and eventually gain enough information to obtain formal warrants, and finally conduct the physical searches necessary to stop the conspirators. Don't forget, conspiracy to commit murder is a crime, just as murder itself is. But to extract this information, you have to spend months keeping data on completely peaceful citizens—as well as people who are guilty of other crimes not related to the terrorism, and people who are guilty of sexual indiscretions, and people who are conducting legitimate billion dollar business deals, and people who are involved in drug sales, and financial fraud, and not cleaning up after their dogs while walking on public sidewalks. But your job is antiterrorism, not litter, and (possibly, though that isn't completely clear) not even drug crime.2

The questions are as follows:

Question 1: Are you justified in tracking the information that will save lives, given that you will very carefully ignore everything not related to your mission?

Question 2. You are the politician in charge of the phone tracking above. You know the data exists, and you know the phone number of your political opponent. Can you resist the temptation to do a search on the data base and at least see if your political opponent ever placed a phone call from the local red-light district?

Question 3. You are an ordinary citizen. Are you comfortable with the idea that this data base exists, knowing that the potential for abuse also exists?

Question 4. In other words, the whole NSA eavesdropping issue comes down to this question: Are you willing to concede that the government should have the power to track some amount of data on everyone in the effort to prevent terrorist attacks, knowing that the potential for abuse exists, or are you willing to accept the risk—not just for yourself (particularly not for yourself if you live in, say, Wyoming), but for others (who might live in New York City or Washington, DC)— of being killed in a terrorist attack?

If the news about the National Security Agency's (aka "No Such Agency" among those on the outside) wiretapping of telephone "metadata"3 and Internet data4 (which by all accounts is not limited to "metadata" but includes details of e-mails and web searches) had hit at any other time, Conservatives would likely have said, "It's in a good cause, and it's controlled to prevent abuse," and Liberals might have said, "We elected Obama to stop this Bush-era abuse, but if he's keeping it up, he must have a good reason." (Certainly some of them are saying that.) But the two reports hit at the tail end of two weeks of Congressional hearings into IRS persecution of Conservative political groups (and individual organizers of such groups), with clear tracks leading back to the Obama White House, and on a scale which might account for the large fraction of McCain voters who apparently didn't come out to vote for Romney—which is to say, on a scale that might have influenced the 2012 Presidential election.5

So now virtually everybody—Liberals, Libertarians, and Conservatives—are looking at question 2 above and seeing the answer, "Yes," and looking at question 3 and answering, "Hell NO!"6

Which brings us back to question 4. Are you willing to concede that the government should have the power to track some amount of data on everyone in the effort to prevent terrorist attacks, knowing that the potential for abuse exists, or are you willing to accept the risk, not just for yourself but for others, of being killed in a terrorist attack?

That's where it gets fuzzy. One can deny the risk, but that way leads inevitably to the next 9-11.7 One can blame the risk on Bush's abuses, or on Big Oil meddling in Middle East politics, or on US support for Israel—but all of those deflections acknowledge that the risk is real, and I have to ask again, "Can I accept that risk for someone else?" One can say, "Tracing these phone calls isn't all that effective a means of tracking terrorists," with some justification, but (a) it has worked in at least some cases,8 and (b) the alternatives often mean even more blatant violations of individual liberty (Can you say Transportation Security Administration? I knew you could). And some Liberals say, "Bush started it, that excuses it," or, "Bush started it, blame him."

But on the other hand, can I accept the risk that some politician—any politician, any party—might use that data to persecute their political opponents, their opposition voters, and/or other ordinary American citizens? That question leads to three additional points:

1. The ongoing IRS scandal illustrates that the current Administration is not above using the punitive power of government to leverage their political opponents; if that were true of Bush, the Republicans would never have lost control of Congress in 2006.9 (That said, I will concede that what Obama has done would not be possible without the groundwork laid by Bush II—and by Clinton before him.10)

2. Even while advancing these measures, the Obama Administration is going out of its way to deemphasize Middle Eastern terrorism. In fact, there are current reports that suggest that the Obama Administration is exempting Moslem groups from the general surveillance out of fear of profiling,11 even though one justification of extending surveillance to everyone is precisely to give the appearance that the United States is NOT profiling.

3. Most tellingly, look at the Obama Administration counterterrorism training handbook. The media is rife with examples where "Tea Party," "Patriot," and "Militia" groups are portrayed as terrorists or "active shooters" for training purposes (one training session reportedly blamed the terrorist attack on homeschoolers!). Given the de-emphasis on Middle Eastern terrorism, it becomes blatantly clear which "terrorists" this Administration wants to track.

Before continuing, let's take a look at online privacy—what it is and what it means.

Back in the good old days of analog dialed telephony over copper wires—the technology that gave us the word "wiretap" to describe electronic surveillance—switching was conducted by analog electrical pulses controlled by a numbered dial, with each number corresponding to a particular phone (or in the case of a party line, the original bugaboo of "online privacy," one phone out of several phones on a single circuit). For billing purposes, the telephone company always knew which phone number corresponded to which user, and police could investigate in most cases by looking up phone numbers and users in an archaic paper data storage device called a "phone book." Since these "phone books" were public data (except in the rare cases of persons who paid extra for an unlisted phone number, and the police could always get such numbers directly), there was no suggestion that a phone number was private. Phone companies recorded number to number transactions, and the length thereof, for billing purposes, and the police could easily obtain such numbers by subpoena. Thus, the Supreme Court has held (rightly or wrongly) that while your private conversations cannot be broached or disclosed without a search warrant, information about numbers called and time of calls can be obtained freely.12 This was the basis for the first release of information regarding the NSA last week.

By analogy, information on who you e-mail and the IP addresses of emails sent and received cannot be held to be private (only your internet service provider—ISP ? knows for sure), but the content of the emails can be. Similarly information about web sites visited since the web site and connection pathway are known to and can be recorded by your ISP. Right or wrong, we have no legal expectation of privacy for such data. Apparently the government is acting as if government employees (and contractors) should have effectively unfettered rights to review such data.

BUT it is also something that not only the USA is doing: China is doing the same thing; ditto all of the international hacker groups, on as large a scale as they can muster and depending on whether they are state-sponsored or private, and whether their objective is military intelligence, business intelligence, or personal financial gain through identity theft or other means. (The one disadvantage China and the international hackers have is that they don't have physical "control" of the servers in the US, but if you read the news you'll realize that's a relatively minor impediment.) One also can't forget that several of the major online social media sites (e.g. Google, Facebook) force much of what you post to become public information anyway, and in fact are making efforts to claim ownership of any "content" you generate.

I am not trying to dismiss private hackers, other than acknowledging that they exist at all scales and have different objectives somewhat appropriate to their scale. On an individual (personal or corporate/agency) basis, they can be just as devastating; their scope is limited by the number of individuals they can attack, not by the damage per individual they can do. For the larger, more organized "private" hacking groups, that scope is as unlimited as China's, or even NSA's.

And I submit the analogy that putting a computer on the internet is the same as leaving your bedroom window shades open 24/7; people don't have to look in, people shouldn't look in, but if you're doing something people want to watch, they will stop and enjoy the view. (That applies equally whether they are watching you with your wife or adult playmate, watching you count your cash, or watching you clean your guns.) We are become a nation of voyeurs. And one amusing consequence of the Supreme Court decisions noted above—if you don't' have a reasonable expectation of privacy in an exchange of data (as by posting on Facebook), you can't protect the data under the 4th Amendment.13

Of course, it is a prevarication to claim, "You have no expectation to 4th Amendment privacy protections, so NSA can do anything it wants," because of criminal hackers (domestic and foreign), but it is unfortunately realistic that an expectation of internet privacy only exists if you knowingly take the extra effort to encrypt your hard drive, encrypt your email, ensure your web searches are trackless, and use industrial grade firewalls. And even then, it doesn't protect you from such foolishness as posting your vacation plans on Facebook, or from software/service user agreements such as Google's which gives them the right to look at anything you do so as to better target advertising services.14 This is not to defend the NSA (and in fact it is an indictment of Facebook and Google), but to offer a perspective: do we really have such an expectation in the modern digital age, and are we willing to defend the expectation? If Google and Facebook are doing it to drive sales, why can't the government do it to protect us?

Of course, standing against the prevarication is the fact that hackers are acting illegally, and that we willingly (if sometimes stupidly) accept Google and Facebook's terms as a condition of access to their service.15

As Edward Teller said—the one time I was within hearing of him at a conference in 1985, so this is a paraphrase—"Security is like an onion. Peel back one layer, and you will find another layer which is not visible from the outside."

Again, on the surface, NSA is doing the same thing with the electronic data as with the phone numbers—they are not concerned with what I had for dinner, or whether I watched a naughty video, though they will certainly become concerned if I email an overseas friend, no matter how benignly.

The public issue becomes whether NSA—working at the behest of the current, or any past or future, Administration—can surreptitiously obtain private information and turn it over to the Administration so that can be used to harm citizens not involved in terrorism. Can the NSA become "Big Brother"? The answer is not only obviously yes; combined with the other Administration data abuse scandals, it is in the process of happening.

Are Snowden's actions just a different, but equally well-paved, road to Hell? There is every chance people will die from this disclosure. Would those people—if they knew their fate in advance—praise or curse him? Of course, this is also the chance that other—different; maybe more, maybe fewer—people would die had he not come forward, and others have their liberty taken. In the end, we are on the edge of the knife here, and the dangers of falling to either side are comparable with the dangers of continuing to stand while the knife cuts into our feet.

When all is said and done, what is a Libertarian or a Conservative to do? Here are some thoughts, for what they're worth. I'm afraid both that they are only a beginning, and that it would take a sea change in Washington (one worth working toward) to get them considered.

1. First, remember that the vast majority of the people working for the NSA, just like the vast majority of people everywhere (else Libertarianism would be doomed to failure anyway) are good, honorable, decent people working with integrity to save lives. This does not necessarily mean that the ends justify the means, but let's reserve our rancor for the people who abuse the system for personal profit and power, and for the miscreants whose deadly actions caused us to consider the imposition of this system in the first place.

2. If these programs are to continue—and that is a big IF at this point—the limits should be firm, and the punishments for violating those limits should be swift, severe, and imposed without regard for the station of the abuser.

3. As noted above, the major justification for general surveillance is to avoid the possible abuses pursuant to tailored abuse—also called "profiling." In the case of terrorism, profiling would preferentially evaluate Moslems in the United States, which is arguably unconstitutional under the 1st Amendment and admits of prejudice. The bottom line is that there is no form of general surveillance which doesn't risk abuse, and which therefore passes muster under the 4th Amendment.

4. Regardless of whether Mr. Snowden was morally right or wrong to expose the NSA surveillance, he is guilty of criminal breach of contract by doing so. While I believe he is honest in his sentiments and I certainly hope he doesn't disappear, he will either be on the run or in prison for the rest of his life for this disclosure, barring a future Presidential pardon. In the same spirit, I will remind everyone that efforts to "spam the NSA" by sending massive quantities of emails with suspected key words for their surveillance are as illegal as any other "denial of service" effort. I neither recommend nor condone such "activist" civil disobedience, and cannot anticipate what consequences if any will accrue to people who avoid this advice.

So the question becomes—should we shut the whole thing down, and risk more terror attacks, or should we retain the program, certainly with tighter controls on how information on American citizens is handled, while we stamp hard at the abuses? Is there a Constitutional (and in particular Libertarian) solution to this issue? Clearly, the Libertarian (or at least anarchocapitalist) answer is, "Shut the program down and let the people take the responsibility and risk of guarding themselves." Letting us have more responsibility for guarding ourselves is certainly not inconsistent with continuing the program with rigid protections (meaning loss of job and pension and jail fines not only for abusive conduct, but for failing to report abusive contact when it becomes known) against collecting data on US citizens. But if the government is forthright about risks and used the Internet as a positive tool for communication, we should be protected as well or better than we are with the Surveillance state, and the only 'freedom" we give is the "freedom" to not participate in our own defense—which is to say, the freedom to become a slave to the person or government who will defend us.

Both the Government and the People should be reminded of their place. The 2nd Amendment makes the People ("...a well regulated militia, consisting of the whole body of the people...") the first line of defense domestically. The Government should trust the People enough to inform its citizens of the information (to the Framers, "well-regulated" meant trained to arms, which must include training in recognizing and responding to terrorist events as they occur) they need to be safe from terrorist threats; that way the People might eventually once again trust the Government. But the corollary is that the People have to take responsibility to secure themselves and their families, and must act responsibly to address real threats, and not attack imagined ones.16 That would only make the situation worse, and make it less likely that the Government, much less any ostensibly sympathetic foreign friends of the US, will trust the People the way they must for a Republic to hold.

One scenario for making that work, this author's variant of the militia concept espoused in L. Neil Smith and Aaron Zelman's novel Hope, is to "push" former and retired military and National Guard into much expanded "State Defense Forces," in order that they can provide the requisite training to never-combatants. Of course, this requires all states (not just the half which currently have them) to establish State Defense Forces, and to acknowledge the 2nd Amendment for SDF members. But it would be a small step in the right direction.


Some suggested reading:
* Balancing Liberty and Security
* We are shocked. Shocked!
* He knew the risks


Notes

1 As noted by the date, this quote taken as first value revealed the attitude of the press towards Snowden in the first days behind this data release. As the week has progressed, however, Snowden's motives have become questioned, and accusations have been levied that he might in fact be a Chinese agent ([link]; [link]). However, his motives for revealing the surveillance program are secondary to the subsequent debate about whether such surveillance is legally or morally sustainable.

2 Actually, every report I've read says that the NSA programs track at least the international aspects of the drug trade. But that is even less supportable Constitutionally than tracking terrorism.

3 The phone number capture amounts to: Number A, located in the position of the cell tower at address A, called Number B near cell tower B. One can infer that, for example, if Number A is later recorded as having called a number in, say, Yemen, they will suddenly take more interest in what Number B has done and who it has called. It gets more sophisticated from there, and I would prefer not to verbalize my guesses of how that works. But the way the process is SUPPOSED to work, they would use the information that Number A has spoken to Yemen to justify an actual wiretap to see if they are speaking openly or covertly about a possible event of terrorism. Also don't forget that the bad guys, at least the smart ones, probably know or suspect this and engage countermeasures (about which I will also not speculate in detail; heck, just read Clancy or any other political thriller author) to make the data captures more difficult.

4 The capture of electronic data appears to be more detailed—not just A emailed B, but the contents of the email, and what web sites A went to during the course of the period he was e-mailing B. The details of this are still shaking out, but on the surface it seems a lot bigger.

5 Five hundred groups facing IRS persecution, with 1,000 "active" members each working to get ten people to the polls, is 5 million votes—the approximate difference between McCain and Romney voters, and twice the margin Romney would have needed to win.

6 I have been frequently reminded in private e-mails from one of my "computer security gurus" over the past few days that the NSA has no enforcement authority—meaning they as an agency cannot prosecute anybody—and that their data collection activities are at the "pleasure" of the Joint Chiefs of Staff and the President. Also that these efforts have successfully prevented smaller-scale terror attacks on US soil. I think this person speaks very well for the classical Conservative perspective. This is not to say that he condones abuse of the system.

7 Full disclosure: the next 9-11 is probably coming anyway. We might be able to delay it, we might be able to identify one after another of the efforts to kill American citizens by the thousands, but eventually one will slip through. And while I am NOT one of the people who believe Bush and Cheney allowed 9-11 to happen so their buddies could profit on the war effort, I will also admit that some later administration could let the next one "slip through" for personal or political profit. (I also admit that I could be wrong, or that such a decision might have been made "above their pay grade," and yes, I fear there is an "above their pay grade." Even more so for the current Administration. Anyone who listens to Glenn Beck can guess of whom I'm speaking, but this person has been on my radar for twenty years.)

8 Allegedly; the NSA is supposed to release related information early next week.

9 Bush's faults are many, but I would summarize them the following way: (a) He was a not fiscally libertarian, or even fiscally conservative; (b) he was far too optimistic in his expectations for (and hired too many incompetents to manage) the "War on Terror;" and, (c) he had to exacerbate the situation by compromising with Democrats on both liberal policy—for example, the post 2006 minimum wage increase, a direct contributor to the later recession—and the conduct of the war—for example, the politically correct rules of engagement. As to whether he should have prosecuted the "war" in the first place—and included Iraq—"Bush lied, people died" doesn't hunt here (the "why" on that would be another essay in and of itself, though I doubt I'll ever write it), but in retrospect I wish he had gotten a formal declaration of war, which would have forced the Democrats to take some ownership of the process. (My comment at the time was, "don't do it unless you—and the country—are committed to seeing it through." The country wasn't, and whatever good might have been accomplished has been thereby wasted.) But whatever else is true, Bush's team managed to ensure no successful domestic terror attacks from 9-11 to the end of his second term of office.

10 As I frequently point out, the groundwork for the Department of Homeland Security was laid in a study conducted by discredited senator Gary Hart for discredited president William Clinton in 1996. Source: Germs, by Judith Miller.

11 [link]

12 This is in fact analogous to showing mailing and return addresses on an envelope. The Postal Service has to have this information to deliver a letter properly (and yes, I've suffered some losses when I failed to put a return address on a birthday card with a gift certificate, only to have misprinted the mailing address so that the gift was presumably shredded in a dead letter office somewhere). Of course, one doesn't expect the Post Office to record that information for ordinary (as opposed to express) mail, but that expectation would be mistaken in the Surveillance Age; [this link] details how Shannon Richardson was tracked by tracing now-standard photographs of the ricin-containing letters through the system to find the mail that was processed before and after those letters, thereby obtaining return addresses in her neighborhood.

13 [link]

14 I have one acquaintance who has so...vigorously is a very polite word for what this person has done...objected to people sharing news about acquaintances who were in hospital or who had recently passed, due to the risk of hackers getting the information and breaking into the temporarily vacant homes, that a number of people no longer have anything to do with this person.

15 Note: I don't do Facebook and minimize identifiable tracking through Google, and I know people who have given up Facebook because of the security implications. I will note that some government employees and contractors have lost their security clearances because of inadvertent contact with foreign correspondents through Facebook use groups and other public Internet forums.

16 I am not an apologist for the evils of Islamic terrorism, and I am the last person to believe that speaking out against those evils can or should be punished in spite of the First Amendment, as some in the current Administration seem to believe. However, attacking Muslims indiscriminately because of their religion will not help the United States avoid future terrorist attacks. And I frankly suspect that the "silent majority" of Muslims are silent because they're even more afraid of their co-religionists than the ostensible targets of Islamic terror attacks.


Terence James Mason is the author of No Loopholes: Getting Back to Basics, an assessment of the meaning of the Bill of Rights and a suggestion of additional Constitutional Amendments to restore the Framer's vision for the Republic. No Loopholes is electronically published by Twilight Times Books (http://twilighttimesbooks.com) in Kindle, Nook, and other popular electronic formats. Mason tweets on the need for #NoLoopholes @OneAmericanVoice.
Web site: www.oneamericanvoice.me


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