Matters of principle

America is supposed to be a nation governed by principles, which are undergirded by the Constitution and the Bill of Rights and carried into law. The discussion about the government and its capture of *our* data should be held on the level of principles.

* Privacy: Our direct and personal communication in any medium and by any means — mail, email, phone, VOIP, Twitter DM, and any technology yet to be invented — should be considered private, as our physical mail is, and subject to government intervention only through lawful warrant. That is not the case. Thus it is quite reasonable to be disturbed at the news that government can demand and receive communication we believe to be private. Government may call itself the protector of our privacy but it is our privacy’s worst enemy.

* Transparency: The actions of government should be known to citizens. I argue in Public Parts that our institutions should be public by default, secret by necessity; now they are secret by default and open by force. There are necessary secrets. There is a need for intelligence. There I agree with David Simon. I saw people die before me on 9/11 and I fault intelligence or not stopping it.

But we are left out of the discussion of where the line of necessity should be. If President Obama believes in the transparency he talks about and if he now says he welcomes the debate about security and freedom then it should have occurred *before* government took the actions now being reported and not by force through leaks. There I agree with James Fallows that this leak is not harmful — what bad guys didn’t already realize that their phones could be tracked? — and will be beneficial for democracy.

* Balance of powers: The best protection of our nation’s principles is the balance of powers. Yes, Congress passed the Patriot Act and yes, a FISA court does approve the executive branch’s actions. But both our representatives and our justices are prevented from sharing anything with us, as are the companies that are forced to be their accomplices. The true balance of powers is the exercise of democracy by citizens, but without information we have no power and government has it all.

* Freedom of speech and of the press: Information comes to the public from the press, which is now anyone with information to share. And citizens exercise power through speech. But in its jihad against leaks… that is whistleblowers… that is reporting… that is journalism and the public’s right to know, the White House is chilling both the press and speech. I pray that Glenn Greenwald doesn’t have a Verizon phone.

This discussion is less about privacy and more about transparency and speech. The principles most offended here are those embedded in the First Amendment for those are the principles we rely upon to take part in the debate that is democracy.

I am asking for government to behave according to principles. I am also asking companies to do so. Twitter — whose behavior toward developers and users can sometimes mystify me — is apparently the platform most stalwart in standing for its users’ rights as a matter of principle. They apparently refused to make it easier for government to get data. Now one could argue that helping government thwart terrorists is also behaving according to principle. But again we and these companies aren’t allowed to have that debate. So I’d now advise following what is apparently Twitter’s route in only responding to demands, nothing more. And I’d advise following Google’s example in revealing government demands for information (though under FISA, once again, they’re not allowed to reveal — even by a count — them all).

There is much debate and sometimes conspiracy theorizing swirling around about what Google, Facebook, et al did and didn’t provide to government. I take Larry Page’s and Mark Zuckerberg’s statements at their literal word and agree with Declan McCullagh that I so far see no evidence that these companies handed the keys to their servers to the NSA. We know and they have long said that they comply with government orders, whether in the U.S. or China.

Though some are attacking him on this issue and though I often disagree with him on the state of the news business, I again say that I agree with David Simon on the unsophisticated and emotional interpretation of this news. Since the initial New York Times report on NSA “warrantless wiretapping,” I have understood that one of government’s goals is to use data to find anomalies but to do that it has to have a baseline of normal behavior. We’re the normal. This has been going on for sometime, as Simon says; we just haven’t known how.

Are we as a nation OK with allowing government to make such an analysis to find the terrorists’ anomalous behaviour or not? That’s a discussion that should occur according to principles, properly informed about the risks and benefits. Are we OK with government using that same data to fish for other crimes — like, say, leaking a PowerPoint to the Guardian? I am not. Are we OK with government treating whistleblowers and leakers as traitors — starting with Bradley Manning? I am not. I agree with Bruce Shneier: “We need whistleblowers.” Are we OK with government having access to our private communications without warrants? I say: most definitely not, as a matter of principle.

Under a regime of secrecy, assuming the worst becomes the default in the discussion. We assume the worst of government because they keep from us even activities they say are harmless and beneficial. We see people who want to be suspicious of technology and technology companies assuming the worst of them because, after all, we can’t know precisely what they are doing. I agree with Farhad Manjoo about the danger. People in other nations — I’m looking at you, EU — already distrust both the American government and American technology companies, often in the past for emotional reasons or with anti-American roots but now with more cause. You can bet we’ll hear governments across Europe and elsewhere push harder for legislation now in process to require that their citizens’ data be held outside the U.S. and to European standards because, well, they assume the worst. We’ll hear calls to boycott American-made platforms because — even if they try not to go along — their acquiescence to our government means they cannot be trusted. This is bad for the net and bad for the country. The fault lies with government.

This is a story about transparency and the lack of it. It is a story about secrecy and its damages. It is a story about principles that are being flouted. It should be a discussion about upholding principles.

  • Bill Giltner

    The most important difference we have, is related the faux security state we inhabit, specifically with reference to the truth of 9/11/2001. Review, re-evaluate.

  • And a matter of standards.

    If there is a single thing this marvelous invention called the Internet has taught us, it is that national borders actually mean less every day.

    Why should the needs of one country’s government allow it to spy on others in ways that are not only illegal or unconstitutional in those other countries but might be illegal and are probably unconstitutional to apply to it’s own?

    I can deal with the US casually calling itself “America”, the name of a land mass that spans half a hemisphere and 35 countries. But dealing with the US government deciding whether my private information is theirs to snoop or not, that’s different. If you think you are bothered about this, think about how bothered some of us out here might be, in the rest of the world, towards which this incredible spying infrastructure is being supposedly pointed at. It’s no fun to not know if the data I type into my phone is being tapped. It’s no fun at all to feel like a second-class citizen of the world.

    Our countries, and their governments and citizens, should all be respected under similar principals and held up to similar standards, I have as much the right to privacy (and presumption of innocence) as any US citizen.

    On a technical note: keys to servers (explicitly denied by Google et al) and keys to users’ platforms and/or communications (not denied) are not the same thing. I use a phone that sometimes sends data somewhere without me knowing what and where it is being sent, I even pay for that data transfer (there is no such thing as un unlimited mobile data plan in some places), and when I mentioned that this started happening at about the same time as Apple is said to have joined PRISM… my comments -and those of at least one other user- were promptly deleted over at More non-fun.

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  • Ron Smith

    Our country is at cross purposes. On the one hand, we demand that the government keep us safe from terrorists. Any president that allowed an attack because they were not paying attention would be boiled in oil, even though that is exactly what GW Bush did, but he seemed to be able to marshal every jingoistic impulse of the country to get away with it. The Patriot Act was passed 98-1 in the Senate (the lone senator to vote against being booted out at the next election), and signed by a President with 90% approval. In its day, it was clearly the will of the people.

    When the flying habits of 300 million Americans were inconvenienced by a single person with a defunked bomb in his shoes, there was no hue and cry. When criminals managed to hijack four airliners with nothing more than box cutters, the government reacted by building more attack fighters and cruise missles. And when that crime was treated as an act of war, there a groundswell of support, even songs proclaiming we were going to kick someone’s ass.

    Now the internet ox has been gored, and it is an outrage. The same internet that went calmly into the night has now had its sanctity violated, and there are calls for impeachment. There was no overwhelming internet outrage at having to be body scanned at the airport, or having your letter openers and nail clippers confiscated.

    As a country, we have to make up our minds. If the government is allowed to inconvenience some, then it should be allowed to inconvenience all. Alternatively, if the government is not allowed to troll for terrorists on what is essentially a public medium (anyone who believes that the internet is anything other than public needs to re-examine their internet habits), then it should not be allowed to make me disrobe just to ride an airplane.

    We freely allow Google and Facebook, by way of their terms of service, to do whatever they want with our data. They commercialize what they know about us, and in this bastion of capitalism, that is apparently OK.

    Those of us who railed against these violations of privacy and over reaching of the government were called traitors and worse. Those of us who called for evidence before we went to war were told it existed, but we were not allowed to see it. And all the while, the media, which radio host Michael Jackson used to say was just an uptown way of saying television, went along.

    It is apparent that we must either choose freedom or security, but one necessarily destroys the other.

    • One way to try to find an answer would be to look for a middle ground between total freedom and total safety or security, since both are essentially utopian such an approach would seem to make sense. But there are a few things that need to be considered:

      The Internet, in the way that it is public, is also global. Therefore Internet governance needs to be global.

      I have argued along similar lines as yours; whereas companies exist to make a profit for their owners, governments are supposed to represent us, they exist to take care of the common good. The problem is I am the citizen of another country, living in another country, and in practice my laws and constitution are not able to protect me from what the US could do wrong. You know, public institutions and the people working for the government can make mistakes, mess things up, it happens sometimes, that is why there are things like transparency, due process and so on.

      So we have to make up our minds as to where this middle ground stands not as one country or another, rather as a global order working together. For the US this must not be a difficult concept, being a federal state; a global layer of governance does not exclude national, regional or local layers of governance.

      It is also interesting to note that the discussion might not actually be about safety versus freedom but about freedom versus privacy.

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  • Megan DaGata

    The surveillance has been around, long in the corners of shops and public places, but it’s been obvious. Cameras, people, cops, and other equipment necessary to track your comings and goings. It was not fiscally possible to track everyone so the government and its agencies only tracked the criminals, the people of interest, the ones on the fringe. Then came technology. I love technology it allows me to broaden my horizons and be part of the landscape. Speak to topics that in the past we could have only read about and not participated. It’s inexpensive, it’s massive, it’s user friendly. We’ve known for a while that the powers that be have the ability to track our every move with this tech. We lived under the assumption that it’s for the good of the people and they are really only tracking the bad guys. Technology has made it possible that tracking all of us is not only cheaper, but easier than tracking only a few. Apply google’s search algorithm and you can learn a lot about anyone. Pulling data for all of the many ways they’ve connected. I want to believe that it is not too late for us. That they will go back to the principle that not all of us are criminals and no matter what the data may suggest we aren’t all the enemy. I’ve lived my whole life thinking this was a democracy. Thinking there was some omnipotent set of rules governing behavior. I was wrong. All of us were wrong. We live in a country whose government no longer cares for the foundation of its being. We would do better in a known dictatorship, at least you know what to expect. I guess that’s it. We hold tight to the expectation that our government has principles and that it will hold tight to them as well. Turns out that we expected too much and this fiasco only seems to grow day by day. We can discuss here or elsewhere online all we want, but all everyone wants to know is, “Where do we go from here? How can we trust an entitity that consistently lies? What principles are left or were there ever any to begin with?”

    • Bryce Samuelson

      Some surveillance is nice, but I think I agree with Ms. DaGata. We were wrong. I think the five big questions are as follows:
      1. Where do we go from here?
      2. What ways can we prevent our government from becoming too tyrannical, liberal or even getting close to those edges of the issue some day?
      3. What are some net principles (and/or protections) to put in place to allow us to still live in the laws of our nation, but obey what principles and/or laws/regulations imposed by the net population as well?
      4. What types of information should we prevent from coming under the control of the wrong people? Whether it be anything that makes up our personal identities or extremely sensitive data that the government has rightfully classified (like launch codes, witness protection lists, field agent identities and the like). Remember, there are internet criminals as well as pick pockets, cell phone thieves and the like. We have to set a set some limits and evolve some techniques to stop these crimes from happening.
      5. How much is too much? Whether it’s privacy, publicness, net openness or anything else we may think of.

  • Bryce Samuelson

    Jeff, One part I don’t see in the post is accessibility. I am a 31-year-old blind geek and as such, I believe accessibility is a prerequisite (as you stated in your book which I’ve read at least twice) part of any declarative statement of principles of the internet that must not only stand on the internet, but the underlying software used to develop its content as well as to host it. I’m writing this on a 21.5-inch Apple iMac which, as you may or may not know has if not the best, then one of the best, reputations on accessibility among people like me with its built-in VoiceOver and Zoom accessibility tools. I wish other companies such as Google and Microsoft (to name two very prominent ones) would be as good, if not better, about their accessibility.