Perspectives on the NSA scandal

The NSA's unconstitutional violation of our privacy has been much discussed in recent weeks.  I'm particularly irritated by the insistence from its defenders that what it did was 'legal'.  That doesn't matter a row of beans.  If I have sufficient 'pull' in Congress, I can arrange to pass a law tomorrow declaring that the sky is green.  From then on, the sky will indeed be 'legally' green - but that won't affect the fact that it remains blue.  What is legal often bears little (sometimes no) relationship to what is right, or just, or ethical, or moral.  What the NSA has done to us is none of those things - and it's a prima facie violation of the Fourth Amendment to boot.

I'm profoundly disturbed by the laid-back, "So what?" or "Who cares?" reaction to this scandal by many Americans.  To me it strikes at the root of our democracy.  If government agencies can abuse their powers to spy on us, determine our tax status on the basis of the philosophies or beliefs we espouse, and dole out benefits based on whether or not they earn support for the powers that be rather than treat everyone equally and objectively, never being called to account - much less punished - for these transgressions, we've completely lost sight of the Founding Fathers' vision for this country.

This is very much the attitude in Europe.  They get it, far more than most Americans do.  Here are three reactions with which I wholeheartedly agree.

First, Der Spiegel in Germany says that 'Europe must protect itself from America'.

The problem is not the violation of certain laws. Rather, in the US the laws themselves are the problem. The NSA, in fact, didn't even overreach its own authority when it sucked up 97 billion pieces of data in one single 30-day period last March. Rather, it was acting on the orders of the entire US government, including the executive, legislative and judicial branches, the Democrats, the Republicans, the House of Representatives, the Senate and the Supreme Court. They are all in favor. Democratic Senator Dianne Feinstein, chair of the Senate Intelligence Committee, merely shrugged her shoulders and said: "It's legal."

What, exactly, is the purpose of the National Security Agency? Security, as its name might suggest? No matter in what system or to what purpose: A monitored human being is not a free human being. And every state that systematically contravenes human rights, even in the alleged service of security, is acting criminally.

Those who believed that drone attacks in Pakistan or the camp at Guantanamo were merely regrettable events at the end of the world should stop to reflect. Those who still believed that the torture at Abu Ghraib or that the waterboarding in CIA prisons had nothing to do with them, are now changing their views. Those who thought that we are on the good side and that it is others who are stomping all over human rights are now opening their eyes. A regime is ruling in the United States today that acts in totalitarian ways when it comes to its claim to total control. Soft totalitarianism is still totalitarianism.

There's more at the link.  Bold underlined text is my emphasis.

Next, the German government has issued a formal warning about unannounced 'back doors' into the Windows 8 operating system that it fears may result in not only the NSA, but also Microsoft and others, being able to monitor user activity - even take over their computer.

According to leaked internal documents from the German Federal Office for Information Security (BSI) that Die Zeit obtained, IT experts figured out that Windows 8, the touch-screen enabled, super-duper, but sales-challenged Microsoft operating system is outright dangerous for data security. It allows Microsoft to control the computer remotely through a built-in backdoor. Keys to that backdoor are likely accessible to the NSA – and in an unintended ironic twist, perhaps even to the Chinese.

The backdoor is called “Trusted Computing,” developed and promoted by the Trusted Computing Group, founded a decade ago by the all-American tech companies AMD, Cisco, Hewlett-Packard, IBM, Intel, Microsoft, and Wave Systems. Its core element is a chip, the Trusted Platform Module (TPM), and an operating system designed for it, such as Windows 8. Trusted Computing Group has developed the specifications of how the chip and operating systems work together.

. . .

Now there is a new set of specifications out, creatively dubbed TPM 2.0. While TPM allowed users to opt in and out, TPM 2.0 is activated by default when the computer boots up. The user cannot turn it off. Microsoft decides what software can run on the computer, and the user cannot influence it in any way. Windows governs TPM 2.0. And what Microsoft does remotely is not visible to the user. In short, users of Windows 8 with TPM 2.0 surrender control over their machines the moment they turn it on for the first time.

It would be easy for Microsoft or chip manufacturers to pass the backdoor keys to the NSA and allow it to control those computers. NO, Microsoft would never do that, we protest. Alas, Microsoft, as we have learned from the constant flow of revelations, informs the US government of security holes in its products well before it issues fixes so that government agencies can take advantage of the holes and get what they’re looking for.

Experts at the BSI, the Ministry of Economic Affairs, and the Federal Administration warned unequivocally against using computers with Windows 8 and TPM 2.0. One of the documents from early 2012 lamented, “Due to the loss of full sovereignty over the information technology, the security objectives of ‘confidentiality’ and ‘integrity’ can no longer be guaranteed.”

Again, more at the link;  and again, bold underlined text is my emphasis.

Think about the dangers inherent in this capability.  We've already learned of blatant, overt attempts to inveigle some conservative public figures to open child pornography on their computers, thereby laying themselves open to criminal charges.  What if a rogue agency of the present Administration - yes, NSA, I'm talking about you, among others! - were to gain the ability to manipulate your computer without your knowledge, using the Windows 8 'back door', to plant incriminating stuff like that on your hard drive, or in your 'cloud computing' storage?  When it was oh-so-conveniently 'discovered' during a search, do you really think a jury of your peers would believe your claims that it must have been planted there?  They hear that excuse all day, every day from criminals in all walks of life . . . and they send them to prison.  They'll do it to you, too, without so much as a second thought.

Finally, the Telegraph points out that this scandal has exposed 'a gross abuse of power by a secret policing agency'.

What the NSA was (is) doing is strictly prohibited by the Fourth Amendment to the Constitution, which states that the citizen shall be free from “unreasonable searches and seizures” without probable cause. That is why the 2008 anti-terrorism law, which allows warrantless surveillance on domestic networks, specifies that this must be targeted at non-citizens abroad.

In reality, this programme now involves the indiscriminate mass monitoring of innocent communications on a scale that is unprecedented in history. What we should be concerned about are not the personal quirks of Mr Snowden or his opportunistic embrace by Vladimir Putin, but the significance of what he revealed with the help of some journalists.

. . .

And this is the justification of it all: that the dangerousness of the times means that we must temporarily suspend our basic freedoms and even our concept of private life. So let me make this clear. I recognise the unfathomable danger of a deranged, nihilistic enemy. If anything, the threat to civilian life seems greater now than during the Cold War, when both sides were quietly dealing all the time.

But where are we going with this? How much are we prepared to compromise with our idea of a life worth living in order to pursue the chimera of perfect safety?

An awful lot of people are saying that they don’t mind if their emails, Skype calls and mobile phone records are being collected. If that helps the state to protect them and their families, it’s OK.

Well, suppose we park a security officer at the door of every household to monitor who enters and leaves, who visits whom and how many hours they stay? The security men won’t actually enter the house, of course, unless they have reason to believe that there might be some activity taking place inside that could facilitate or incite terrorism – but they will keep records of all the comings and goings from every address. Will that be OK too?

. . .

An editor of the US National Review wrote last week of those “who steadfastly refuse to express anxiety unless they can actually hear jackboots”. Note: once you hear the jackboots, it’s too late.

More at the link.

I don't know how we can stop agencies like the NSA from overreaching themselves and abusing their powers.  Such bureaucracies take on an institutional life of their own, and develop real expertise in manipulating public opinion, 'managing' politicians, and getting their own way regardless of legal and/or constitutional obstacles.  (Pournelle's Iron Law of Bureaucracy admirably sums up and expresses this reality.)

I submit that if we can't stop the agencies as organizations, we can and must hold individuals accountable within those agencies, both judicially and socially.  Judicially, we need to prosecute all who overstep the mark, and punish them (up to and including salutary prison terms) for their misdeeds.  Socially, we need to take careful note of - and publicize and circulate - the names and addresses of bureaucrats and petty functionaries who violate Constitutional norms and legitimate standards, and who make the lives of others a misery for no good reason.  Let them be shunned.  Cut them off from civilized society.  Refuse to serve them in stores.  Refuse to speak to them or acknowledge them in any way.  Withdraw all co-operation from them and their agency(ies).  Make sure they understand that they're pariahs, and unwanted in the company of any and all decent people.

If they persist in their ways, even stronger measures may be required;  but one hopes it won't come to that . . . because if it does, our republic will by then have ceased to exist.

Peter