• Law, Policy -- and IT?

    Tracy Mitrano explores the intersection where higher education, the Internet and the world meet (and sometimes collide).


Reflections After Class

On government surveillance

June 5, 2016

One of my students expressed a newly found fear after reading about the scope of the U.S. government’s surveillance. Another expressed hopelessness at ever being able to cabin its powers. The gap between what candidate Obama said and what President Obama has done on this topic underscored that feeling. If someone whom the public trusts to make significant reforms cannot be counted on to do so, and in fact has come down so hard on whistleblowers such as Edward Snowden, then how else would reform occur? A commenter to my post on reflections after class concerning consumer privacy, cssmit  convincingly detailed how much more important government surveillance is than consumer privacy.

Bruce Schneier identifies many good points on the subject of privacy in his book Data and Goliath, which we read for class, and makes some excellent persuasive recommendations. One observation is to note how early we are in the reform cycle on information privacy.  Using industrialization as a historical model, we talked in class about after the Civil War the United States industrialized mightily.  From a primarily agrarian economy, the United States became the leading industrialized country in the world by mid-century.  But it was not a uniformly happy process and involved tremendous social disruption and labor unrest. The National Labor Union, Knights of Labor and railroad labor organizations all emerged in the nineteenth century after the Civil War. The American Federation of Labor began in 1881.  Myriad organizations grew up in different parts of the country, miners in the west, for example, and in various trades, women telephone operators or seamstresses as but two to suggest. It was not until the New Deal that truly significant federal reform began to take hold for industrial workers. The Wagner Act in 1935 set the stage for hour, wage, and condition controls as well as the right to strike and form unions.  The Congress of Industrial Organizations, formed the following year, brought unions into the mainstream of American politics … some 70 years after the first post-Civil War labor issues first took root. American historians have argued how without some balancing of industry and labor, the United States would not have achieved its post WWII height. 

What year should we set as a starting point for us? Some might suggest the mid-seventies. The end of the growth of middle class, the beginning of the type of systematic economic troubles we continue to face, started up then. We might further note the simultaneous promulgation of the most recent Copyright Act in 1976 as both a high-water mark and the beginning of the end of the content industry’s hegemony over content. The transition of packet-switching from a discovery to an innovation, digitized consumer products such as audio tape and compact disks, and the early formation of network systems specifically ARPANET all signaled what was to come. Personal computers and business software products burst on the market.  Data mart companies deployed information technologies to expand exponentially, first to service banks and other lending institutions, and then to feed a broad array of insurance, financial and advertising services. My vote goes to the 1990’s, however, 1993 to be precise, the year that Al Gore, yes, Al Gore, “invented” the internet by spearheading congressional action on the part of the Clinton Administration to turn management of ARPANET over to the Department of Commerce and thus opening use of the internet to the public. The explosion of communications, commerce, and culture – and an information economy – emerged as a result. 

That may feel as if it were a long time ago.  Remember the whistle and whine of early modems signaling a link? Your first computer? Learning to navigate an email account? Your first post on a bulletin board?  “Surfing the web?” Given rapid advances in speed, style and sophistication, those early moments are already nostalgic. But in the tick-tock of time, it is but a blink. Hardly enough to figure out what is really going on in terms of the disruptions to established markets, such as content distribution, and the rapid rise of new ones such as in internet search, online retail or social networking platforms. New social relations shifted from employee-employer to internet company-consumer. The commodification of information, and the consumer, occurred sometime in this process. Broad band deployment. Net-neutrality. Privacy in the digital age. Wow, I am a page and a half into this blog post. Apart from introducing the topic and setting the stage, I have not even begun to address directly government surveillance!

With this background we can begin to look at a confluence of events that shape our current state. Governmental control of the internet might have shifted from the Department of Defense to Commerce, but both electronic surveillance and cyber warfare research continued apace in the National Security Administration and Department of Defense. The 1986 Electronic Communications Privacy Act presciently included “data networking” in its scope before the internet went public. But unforeseen was the fundamental flaw in conflating TCP and IP protocols mapped to the Fourth Amendment.  And then there was September 11.  The U.S.A.-Patriot Act lowered the bar by which law enforcement could gather information and further exploited the fundamental flaw in ECPA.  Configuration of router and switches that did not take ECPA and the Fourth Amendment into account added still more content into what law enforcement could get by simply filing a paper with court clerk.  Meanwhile, the Bush Administration pursued extra-legal gathering of information from 2001 to 2006, at which point the New York Times exposed the activities.  Congress sort of, but not quite, passed the FISA Amendments of 2008 as a fix.  Fast-forward to three years ago today, June 5, Edward Snowden went from an unknown government contractor to world-historical figure with more revelations about the mass collection of telephone metadata, PRISM, and Tempura programs behind the scenes. 

In light of this history, I asked my students to create a list of reforms they would make to the presidential candidates on this topic.  Here is a slightly revised version:

  • Do not collect data.
  • Implement federal government fair information practices.
  • Federal security standards.
  • Consumer Privacy, Bill of Rights.*
  • Fix FISA [Foreign Intelligence Surveillance Act, and its “secret” courts].
  • Federal government agency for personal/individual information.
  • Transparency about cybercrime/ breaches/ info sharing practices.
  • Reform CALEA [Communications Assistance Law Enforcement Act].
  • Reform ECPA .
  • Create data warehousing rules.
  • Enhanced/ new rules/ houses arsenal/stolen data/ (cyber crime).
  • Add a public interest advocate to Intelligence gathering processes.
  • Reform whistle blower laws [e.g. for Edward Snowden].
  • Create more National Security Administration transparency.
  • Create a right to know about information collected about us.

Pretty impressive stuff, huh?  Note the asterisk.  When asked how a consumer bill of rights fits into government surveillance, the A+ answer is that we all miss the boat to segregate consumer privacy from government surveillance. Point: it is not against the Constitution for the government to buy data! To get on board we must see both aspects as integral pieces of the larger whole. 

I brought five suggestions of my own to the group. Antecedents can be found in the list.  First, break up the National Security Administration. I think it has become too powerful and too obscure to ever be accountable in a meaningful way to the public.  Second, abolish FISA.  It was created with progressive intentions that the irony of history has irreparably corrupted. Third, pass the LEADs Act, and yes, reform ECPA. Fourth, create a White House committee that combines oversight to consumer privacy and government surveillance together, and that includes academics, technologists, industry and representatives from advocacy groups and the public. Fifth, and here is where I am really going out on a limb, begin work on a Constitutional amendment:  Privacy is a fundamental constitutional right. 

In the reform cycle on privacy, we may be early. Economists and political scientist have yet to opine. Ha! Let’s not make perfect the enemy of progress.  Asked how he knew that his New Deal reforms would fix the depression, Roosevelt admitted that he did not.  But he believed that government had to experiment with different labor ideas and economic approaches.  It is time to begin the reform process for our new economy.  As insightful as our many scholars and activists are, there is no one person or idea that will be perfect.  Moreover, incumbents will push back.  That is still not a reason to stop before we start.  If a group of eight students armed with a good book and a little comparative history from the prof can come up with this informed list, it sure does seem as if it is time to start. 


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