Thursday, January 09, 2014


This article originally appeared in the 1.9.14 issue of Metroland.

Edward Snowden and the NSA.  For years I’ve been writing about the privacy train leaving the station, but even at my most cynical I couldn’t have imagined how bad things had become.  And though the Snowden leaks have been happening for months now, I haven’t taken them up here until now.  Why?  Because the issues are too dense and I’m lazy, that’s why!  My go-to source for this sort of thing, the fantastic site Techdirt, has been chronicling the whole messy affair in excruciating detail, so excruciating that I’ve skipped over most of the posts because they made my head hurt.  Arcane laws, double-secret laws, secret memos, secret courts, secret lawyers, redacted documents, long expositions on the nature of metadata, urgh, spare me.  Let’s talk about evil record companies instead!

            But things are hitting critical mass.  Entire countries are mad at us for spying on them, at least they try to act mad until it’s disclosed that they spy on other countries, too.  The NSA and other administration officials have been caught repeatedly lying to Congress and to the press.  In the last couple of weeks, two federal courts looking at roughly the same issues have come to polar opposite conclusions regarding the constitutionality the NSA’s domestic spying program.  Meantime, the New York Times last week called for the Obama Administration to provide “some form of clemency” for Edward Snowden, the guy who leaked (and, apparently, continues to leak) the information that exposed NSA’s shocking and nefarious activities, and who is currently living in exile in Russia.

            There’s so much here that it’s hard to know where to begin, so let’s start with the recent court decisions.  In December, a federal judge in Washington DC found that it was highly likely that NSA’s mass collection of our phone records violated the 4th Amendment’s guarantee of freedom from unreasonable searches.  The judge shot down many of the government’s laughable arguments about things like how the plaintiffs lacked standing because they couldn’t prove they’d actually been spied on, how the mass collection of phone records legal because it was similar to the old pen register surveillance technique cops have been using to track individuals (one individual at a time) for years, and how the program had in fact stopped terrorist attacks (it hasn’t).   The decision is cleared-eyed and logical.  It describes the government’s spying program as “Orwellian.”

            Then, last week, a NYC federal judge came to the opposite conclusion.  The decision opens with a discussion of impact of the 9/11 attacks, and then goes on for page after page uncritically repeating, like a mynah bird, the government’s factual claims and legal arguments.  He relied on things like the claim that NSA’s metadata program could have prevented the 9/11 attacks (which is simply untrue), that the NSA doesn’t abuse its surveillance powers (it does), that no one who is innocent has been harmed (which is irrelevant), and that only a tiny number of people have been spied on (a claim that the DC judge demolished in one paragraph).  One wonders if the NYC judge even read the DC judge’s opinion.  One wonders if the NYC judge read anything but the government’s brief.

            In any event, both decisions are being appealed, and it’s likely that one or both cases ends up at the Supreme Court.  Meantime, the NSA’s mass collection of data continues unabated.

            What’s at stake here is, course, your privacy, of which you currently have very little.  Your phone today is more complex, more versatile and more revealing that your phone was even five years ago.  You use it more, and you use it differently.  If the government jacks into your phone, even just taking the most basic metadata, the government knows a whole lot about you.  And if your argument is “well, I haven’t done anything wrong so I don’t care” I pity you, and suggest you move to North Korea with Dennis Rodman.   And if your argument is “marketers already know what I do online who cares if the government tracks my calls”, I say this: the marketers track you to present to you opportunities to buy stuff they know you want; that’s not why the government is tracking you.   Nobody knows why the government is tracking you. 

            The clownish shills for the NSA, including lawmakers from all over the political spectrum, warn ominously that if we limit NSA’s reach, even a little, we’ll open ourselves up to more terrorist attacks.  There’s no proof of that whatsoever, but even if it were true, it’s nonsensical.  There will be terrorist attacks in the future.  Period. The question is how much of our freedom do we give up to try to stop them?  Hey, if every person in the Country were assigned a full-time government chaperone maybe we could stop terrorism altogether! 

            And yes, Edward Snowden is a hero.  None of this would be happening if it weren’t for him. Let him come home.

Paul Rapp is a local intellectual property attorney who suggests you go see Trombone Shorty this weekend.



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