Confused about your privacy rights?-You are not alone.
It is obvious, some even may say self evident, that unless you are living in a desert or deep in the woods you cannot have privacy. Living in society or even interacting with limited number of people requires to forgo some of the privacy rights in exchange for other social benefits. The question is -- how much of the privacy rights we have to surrender and the answer is -- what is dictated by the Law. However, the Law and its interpretation in the legal system depends on the system of the government. In Orwell's time in dictatorship the government owned your privacy with the approval of the courts and in democracy the government was protecting your rights and courts safeguarded this principal.
However, if you have been busy last couple of weeks preparing and celebrating holidays with your family that situation must have changed and you better catch up with the most legal developments of privacy rights or prepare one day to be surprised (unpleasantly, of course).
Brief history of evasion of privacy
It did not happen overnight. In the midst of the Prohibition FBI figured out that wiretapping telephone lines and listening to bootleggers and mob conversations can help obtain crucial and useful information necessary for their conviction. However, it was done on a very limited scale and under the courts supervisions. According to the history of telemarketing it began in 1950's by housewives making telephone calls to sell their products. By mid 1960's telemarketing became an industry that reached its highest point in 1970's and 1980. Commercial use of various consumer data, such as names of particular magazines subscribers, their telephone and street addresses, etc. became a valuable commodity collected, bought and sold by commercial companies. About the same time when telemarketing emerged, on Nov. 4, 1952, the National Security Agency was established and in 1972 was extended with with the addition of the Central Security Service. The Code of NSA/CSS Core Values proclaims "NSA/CSS is unwavering in its respect for U.S. laws and Americans’ civil liberties—and in its commitment to accountability"
In 1991, however, Congress finally passed and President George H. W. Bush signed into law Telephone Consumer Protection Act of 1991 that significantly strengthen consumer protection from telemarketers.
War on terror -- everyone is a suspect.
The 9/11 started a new era in surrendering privacy rights on the mass scale. It happened not only because of the terrorists attacks in US, but because just telephone and cellphone were ubiquitous tools in US and other developed countries, but because by that time Internet broadband, web media news presence, e-mail use, photo sharing, web radio became common, Google was already founded and MySpace and Facebook were only few years away. The fact that information that 9/11 was about to happen was readily available to the various governmental agencies and the president and other held meetings related to the attacks, but did not act on the warnings. In aftermath of the attack the government needed to demonstrate that it "defends the Nation" and does everything in its power to prevent further attacks. The atmosphere of mass fear was perfect to unleash total surveillance and with the help of the government propaganda that small sacrifice of the privacy rights will secure safety for the country Law was re-written and program was implemented.
Watch January 10, 2006 interview
or read the transcript of the NSA whistleblower Russell Tice to ABC Nightline. Nothing had change for the next 7 years, until Edward Snowden did what Russell Tice did not accomplish in his own words -- "gave goods" on NSA.
Buy 2006 Google also grown up significantly becoming a dominant player among Internet companies making billions of dollars selling users information to advertisers. Despite its motto "Do not be evil" Google could not resist to stay away from collecting additional information from unsuspecting public and users as well as violating other companies software bypassing privacy settings in order to obtain users personal data. Google was found violating users privacy not only in US courts, but in other countries as well.
If you are honest person you have nothing to hide.
Eric Schmidt, former Google CEO, during December 3, 2009 interview with CNBC's Mario Bartiromo responding to her question "People are treating Google like their most trusted friend. Should they?" answered
If you have something that you don't want anyone to know, maybe you shouldn't be doing it in the first place, but if you really need that kind of privacy, the reality is that search engines including Google do retain this information for some time, and it's important, for example that we are all subject in the United States to the Patriot Act. It is possible that that information could be made available to the authorities.
In other words it is not Google's fault that you sent your e-mail containing some private information via Gmail to your friend or appeared in you own yard or did not secure your wireless network when Google car was passing. You should have assumed that Google was not evil, but just did what it supposed to do -- collect information on you and everyone else. And if it caught you with your pants down or overheard your secrets it is your own fault! But is not all -- do not blame Google for sharing it (or better to say selling this information) with the rest with the world.
NSA Spying Program -- Almost-Orwellian Technology
Since first publications of the documents about NSA blanket wiretapping of the telephones and Internet communications of millions of Americans and foreign nationals, including our European allies, that were provided by Edward Snowden to news media several cases against NSA and other security agencies and officials, including President Obama were filed. Despite obvious violations of the Law some of which were even admitted publicly, everybody was waiting for the Courts' opinions on the subject matter.
On December 17, 2013 the District Court Judge for the District of Columbia, Richard J. Leon, appointed in 2002 by George W. Bush, ruled that bulk NSA metadata collection is a violation of the Fourth Amendment of Constitution. The plaintiffs who brought the case against Obama, NSA, Verizon and other parties,
Larry Klayman, a conservative lawyer, and Charles Strange, father of a cryptologist killed in Afghanistan when his helicopter was shot down in 2011. His son worked for the NSA and carried out support work for Navy Seal Team Six, the elite force that killed Osama bin Laden.Guardian, NSA phone surveillance program likely unconstitutional, federal judge rules
Not just once the judge invoked parallel to Orwell's description of totalitarian states. For example, beginning his analysis with "Supreme Court's landmark opinion in Smith v. Maryland, 442 U.S. 735 (1979)", judge wrote
Third, the almost-Orwellian technology that enables the Government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979. In Smith, the Supreme Court was actually considering whether local police could collect one person's phone records for calls made after the pen register was installed and for the limited purpose of a small-scale investigation of harassing phone calls. The notion that the Government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was at best, in 1979, the stuff of science fiction. (emphasis supplied) MEMORANDUM OPINION December 16,2013 [Dkt. # 13 (No. 13-0851), # 10 (No. 13-0881)]
Despite the fact that judge stayed his decision allowing government to appeal, for a brief moment it looked as the common sense and legal reasoning prevailed over unrestricted blanked surveillance.
If you lost your privacy -- it is your own fault!
Yet, Snowden's celebratory statement that "judge's ruling vindicates leak of NSA files" was premature.
On December 27, U.S.District Judge William Pauleyin New York dismissed an ACLU lawsuit challenging the National Security Agency's bulk collection phone records, saying that the program is constitutional. What is remarkable that judge Pauley in his decision relied on the same Smith v. Maryland, 442 U.S. 735 (1979) case that Leon called into question because the technology dramatically or almost-Orwellian scale changed the scope of surveillance. Furthermore, judge Pauley rhetoric clearly demonstrates that he has very poor understanding of issues of technology. He begun his decision with the following statement:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.
Even for a judge who did not take any science courses to call al-Qaeda use of airplanes "a seventh-century milieu" and "a bold jujitsu" is too much of metaphor. When judge continued digging into the telephone technology nuances he makes even more ridiculous assumptions:
Prior to the September 11th attacks, the National Security Agency ("NSA") intercepted seven calls made by hijacker Khalid al-Mihdhar, who was living in San Diego, California, to an al-Qaeda safe house in Yemen. The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar's telephone number identifier. Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States. Telephony metadata would have furnished the missing information and might have permitted the NSA to notify the Federal Bureau of Investigation ("FBI") of the fact that al-Mihdhar was calling the Yemeni safe house from inside the United States. (emphasis supplied)
What completely escapes the judge that:
1. NSA did not need to monitor all phone numbers in US to have metadata that they could not obtain overseas to conclude whether al-Mihdhar was overseas or in US. NSA analysts should have not "concluded [better to say guessed] mistakenly that al-Mihdhar was overseas", but simply run his name (that NSA seems to know) against the database of the entering and exiting US visas. This way NSA would certainly have known where al-Mihdhar was present during conversation.
2. Judges speculation telephony metadata "might have permitted the NSA to notify the Federal Bureau of Investigation ("FBI")" does not sound as certain fact, but rather as one of the options that was quite far from certain.
3. Discussing bulk collection of metadata judge does not consider a situation that some of the metadata could be false positive because people sometimes misdial a number of connection could be erroneous due equipment malfunctioning. That would certainly lead to unnecessary actions against innocent people.
4. The judge simply does not realize how long it might take to process all possible bulk metadata collected. In fact, it has never being demonstrated that delay cannot potentially disrupt the investigation. It seems to escape the judge that the time and scope of data collection exponentially increases total amount of data that has to be processed.
5. Finally, judge did not consider that fact that FISA court has to authorize data collection by NSA and as far as we know it never authorized bulk data collection for entire US territory and/or population. In fact, as we all well aware FISA reproached NSA on several occasions for exceeding scope of authorized data collection. Thus, his decision to find NSA actions lawful hardly withstands any logical or legal scrutiny.
Judge Pauley admitted in his decision that after 9/11 attack the government
launched a number of counter-measures, including a bulk telephony metadata collection program-a wide net that could find and isolate gossamer contacts among suspected terrorists in an ocean of seemingly disconnected data.
This blunt tool only works because it collects everything. Such a program, if unchecked, imperils the civil liberties of every citizen. Each time someone in the United States makes or receives a telephone call, the telecommunications provider makes a record of when, and to what telephone number the call was placed, and how long it lasted. The NSA collects that telephony metadata. If plumbed, such data can reveal a rich profile of every individual as well as a comprehensive record of people's associations with one another.
It is practically an admission a violation of the Constitution because no law can infringe on the Constitutional rights of all citizens. Yet, the judge does not want to make a conclusion about a constitutionality of the government's decision avoiding even acknowledging it as an issue and replacing it with word "lawful", which is like saying that butter has a buttery taste. Instead judge Paley turns the matter upside down stating
But the question of whether that program should be conducted is for the other two coordinate branches of Government to decide.
What's next
Well the courts decisions are most certainly are not final. As it has been said the government is appealing decision in the first case and ACLU promised to appeal decision of judge Pauley. The final word will practically certainly will be come from the US Supreme Court unless the legislature and President will change the current law. If you ever dreaded even to think about possibility to live under surveillance in totalitarian state you have one option to make your voice heard. Write to your representatives in Congress, sign petitions to the Government, vote for the candidates who oppose bulk surveillance or ... one day you worst nightmare might become a reality.
