June 14, 2013

Horse 1499 - Big Brother Would Rather Not Be Watching You

An email was sent to me asking The Horse what its editorial opinion was/is on the United States' National Security Administration having access to peoples' private emails, getting logs of phone calls and listening in on peoples' phone calls.
I expect that they're hoping for some rant from me about the latent power of governments and how they're taking away "freedoms" etc.
I take note that copies of George Orwell's "1984" have run out of stock at many bookstores around the world, for it is that book which gives us the concept of "Big Brother", that is, the state watching over us.
So then, what do I think of the NSA looking into peoples' private communications?

This is where I completely confuse people. As a creature of the left, I'm supposedly more in favour of peoples' freedoms, but even I admit that on the Political Compass, I fit above the line in the North-Western corner. There are some authoritarian principles I like; so I need to explain my position.

Whilst I admit that totalitarian regimes are bad, history has shown that the best way to control peoples' thoughts and actions, is not with punishment but weak incentives. I believe that the world of Aldous Huxley's "Brave New World" in which people are more controlled with hedonism, is closer to the truth in the real world than George Orwell's "1984" (it's certainly longer lasting). One only has to look at the idiotic television programs, magazines, the increasing lack of serious thought in newspapers, and the idea that 90% of the internet is rubbish, that the world that we live in is technologically smart but that the people who occupy it are painfully idiotically stupid. The fact that microwaveable sausage and pancake on a stick exists, is enough to make we wonder if most people are even sentient.
Just put some adverts in newspapers and magazines, or on Fox, hold some daft televised talent show and promise freebies and you don't even need to control people: they'll happily buy into whatever it is that you're trying to sell, if they can spot some excuse to spend more, eat more and get someone else to pay for it.

To be totally frank, governments couldn't really give a rip about 99% of peoples' phone calls, emails etc. It is not of either national importance or even worth the expense to care about your shoes, or whether or not you need milk, or if your boyfriend is a moron, or the endless photos of food that you take, or how many birds you can fling into improvised structures built by green pigs.
Painfully idiotically stupid people tend to produce painfully idiotically stupid emails and conversations, full of sound and fury; signifying nothing.

The flip side to this is that these same painfully idiotically stupid people, also don't bother to read the "Terms of Service" when it comes to their emails, phone calls and social media. If you bother to read them, we find things like this from Yahoo's "Privacy Policy"

We provide the information to trusted partners who work on behalf of or with Yahoo! under confidentiality agreements. These companies may use your personal information to help Yahoo! communicate with you about offers from Yahoo! and our marketing partners. However, these companies do not have any independent right to share this information.
We have a parent's permission to share the information if the user is a child under age 13. See Children's Privacy & Family Accounts for more information about our privacy practices for children under 13 .
We respond to subpoenas, court orders, or legal process, or to establish or exercise our legal rights or defend against legal claims.
We believe it is necessary to share information in order to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of Yahoo!'s terms of use, or as otherwise required by law.

I'm pretty sure that similar clauses exist in the Terms of Service agreements for organisations like, Facebook, Twitter etc. that you already agree to have your email and information provided to government agencies if they ask for it.
How can people honestly be annoyed that their emails, phone calls etc are shared with government agencies, if they actually gave permission shared for those emails to be shared with government agencies in the first place? It's their own fault for not bothering to read the agreements which they signed up for.

There is the small trifling matter of the Fourth Amendment to the US Constitution which says that:
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.
However, if I were to open your physical mailbox on the street, the legal precedent exists that provided I don't actually open that mail, I haven't legally tampered with your mail. The question of who actually owns email is far more murky. Copyright of the material contained in an email is retained by the owner with regards the Berne convention, but under current law (both in the US and in Australia), an e-mail address is technically the property of the owner of the domain name to which it is directed, the @whatever.com in one's e-mail; likewise all of the emails are also the property of that same owner of the domain name.
I suspect legally that this is a legal minefield which is very messy indeed.

This all misses the one really massive elephant in the room and that is why the government should want to look in on emails, phone calls etc.
This is from the Terms of Reference of a report with reference to Unconventional Nuclear Warfare, from the Dept of Defense, July 2001:

Unconventional Nuclear Threat (UNT) pertains to a nuclear attack on the United States via unconventional delivery methods, e.g. delivery other than by missile or military aircraft. The possible perpetrators of such an attack can range from small terrorist groups, subnational groups, transnational groups, state-sponsored/supported terrorist groups, to nation-states. The nuclear devices also cover a spectrum from crude radiation dispersal devices and improvised nuclear explosive devices, to stolen nuclear weapons.
- Unconventional Nuclear Warfare Defense, 2000 Summer Study, US Dept of Defense, July 2000

Quite frankly, the US Government is very very very scared of a terrorist nuclear attack. When you bear in mind that the destruction of 5000 lives via aircraft attacks, just two months after this report was released, was perpetrated by people bearing no more than Stanley Knives, who would honestly want to be in charge, if nuclear device was used by a terrorist? It was Ronald Reagan who said that "Government's first duty is to protect the people, not run their lives" and surely the destruction of many many lives due to a terrorist nuclear attack would find the government seriously negligent in it's duty at the very least.

In the immediate weeks after September 11, 2001, questions were asked as to what the government did and didn't know and whether or not they took it seriously. Now 12 years later, there are some seriously deranged nutters in the world and with Iran and North Korea rattling the sabre, Pakistan being ungovernable in some provinces and Russia opening itself up to corruption in the name of profit, I don't think that the United States government particularly wants to find out the "what ifs" when it comes to a terrorist nuclear device being let unleashed.

Something should of course be said of the matter of the right to privacy. In Australia (despite protestations that there is 'no' bill of rights), the right to "quiet enjoyment" of one's property is a principle long established at common law and Article 12 of the Universal Declaration of Human Rights states that:

Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

There is of course a caveat in there - take note of the word "arbitrary". If the government is charged with the responsibility of the defence of the nation, then is it truly "arbitrary" that it should sometimes take overt and covert steps to try and carry out the means to that end? Obviously you can not discover something without taking steps to discover it.

It is worth noting though that although the United States signed the Universal Declaration of Human Rights, it never considers anything that the UN publishes as binding; this was most evident when despite being told by the UN that a war with Iraq would be illegal under Resolution 1441, it did it anyway.
Besides which, the US Government has often acted by means which under a strict constructionist interpretation of its Constitution, it never had the means to do so. The Louisiana and Florida Purchases and the annexation of Hawaii immediately spring to mind. Also bear in mind that for matters of international affairs, it is also prepared to set justice and due process aside entirely and the holding of people without trial indefinitely at Guantanamo Bay, is a stark reminder of this.
The fact that the US Government is spying on people generally and even its own people, should not come as surprise to anyone. The only surprise is that anyone is surprised.

Presumably the right to Privacy in the United States is one of the right of the people that are not specifically enumerated in the Constitution; in which case under the Ninth Amendment, the right is retained by the people.
There is also the annoying niggle that the word "unreasonable" as contained within the Fourth Amendment is vague at law and as such, as with all covert operations, it's assumed that if someone does feel violated, then they should seek remedy through the courts.
If the act of Congress which allowed this thing to happen was unconstitutional, then why was it allowed to pass through both houses and be signed into law? And in this case taken 8 years after its confirmed existence and 6 years after it was signed into law for something to be done?

Personally I think that the government spying on people is a bad thing but unfortunately necessary. All it takes is one nutter with a nuclear device, to let it off in an Urban Area and suddenly we're no longer talking about the legality of spying on people, but what we're going to do about the mayhem and destruction of life which will have been unleashed. I'd rather the government catch the nutter before the event.

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