• Resolved: The United States federal government should substantially curtail its domestic surveillance.

HANDOUT http://astoundingideaselectronicsurveillance.blogspot.com/

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?

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.

http://law2.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html

• 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." 

The Bill of Rights, however, reflects the concern of James Madison and other framers for protecting specific aspects of privacy, such as...

Ways to View Privacy...• Fear of companies gathering more and more data on

everyday people: Google, Target, insurance companies.

• Fear of terrorists, so surveillance to uncover terrorists 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.

The Alien and Sedition Acts• The Alien and Sedition Acts were four bills passed in

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

www.independent.org/newsroom/article.asp?id=101

• large-scale spying on Americans got its real start in 1917, when the United States entered World War I.

• President Wilson 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.”

http://www.fee.org/the_freeman/detail/the-dawn-of-the-surveillance-state

• The next day, Congress gave teeth to his warning with the Espionage Act, which criminalized opposition to the war. In 1918, the Sedition Act made prohibitions on dissent even broader.

• The Bureau of Investigation (later called the FBI)...creating the American Protective League (APL)... The APL ... was nominally private, ...1,200 branches put local public schools under surveillance,

• APL members detained over 40,000 people, opened mail, and raided factories, union halls, and private homes.

• Most of the surveillance apparatus was dismantled after the war was over, and communications returned to private hands.

• However, the Sedition Act, which made it all 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,

• [H]istorian Lon Strauss has written, we can “see 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.” 

http://news.heartland.org/newspaper-article/2015/07/16/

domestic-government-spy-program-jeopardizes-citizens-rights

“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.“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.”

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 ChurchIn the 1700s sensitive letters often written in secret code. Governments searched homes and papers for incriminating statements.

How did America’s Founders respond?

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. 1895 – 1972

From Beirut, Lebanon to 9/11 Missed intelligence in Beirut ... John Poindexter team gathers real-time intelligence on terrorist attacksAfter each, President Reagan, Bush and federal security agencies expanded U.S. surveillance in fear of extent of terrorist networks and operationsOklahoma City bombingBefore 9/11 and after...

Throwing Away Key Intelligence DataKleinsmith 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.

• 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/sen-rand-paul-sues-irs-over-overseas-banking-tax-program

No Fishing...

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.

National Security Concerns & Incentives •To locate terrorists and potential terrorists.

•But who are potential terrorists? Islamic “fundamen-talists” 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-nsa-violate-your-

constitutional-rights/

http://www.learnliberty.org/videos/whats-next-in-the-

battle-over-nsa-surveillance/

http://billofrightsinstitute.org/blog/2012/11/27/are-they-watching-you-

elesson/

http://billofrightsinstitute.org/resources/educator-resources/lessons-plans/current-events-and-the-constitution/snowden-and-the-nsa/

billofrightsinstitute.org

NSA TripwiresIRS 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.”

Also: Intelligence Squared debates

• 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.

NSA scandal's many dimensions...

• 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.

www.wired.com/2014/03/going-tracked-heres-way-embrace-surveillance/

•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...

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/

The Systematic Federal Surveillance of Ordinary

AmericansGregory Rehmke

www.EconomicThinking.org

http://AstoundingIdeasElectronicSurveillance.blogspot.com

http://www.independent.org/publications/tir/article.asp?a=283

http://www.learnliberty.org/course_details/understanding-

nsa-surveillance/

• [E]xtensive federal data collection creating 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.

•Databases keyed to Social Security numbers— ...use of those numbers as a fulcrum for government data collection about individuals...

• Labor databases— ... federal database of all 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;

•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.

continued...

www.cato.org/publications/policy-analysis/leashing-surveillance-state-how-reform-patriot-act-surveillance-

authorities

• 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/leashing-surveillance-state-

how-reform-patriot-act-surveillance-authorities