Topic: Telecom, Internet & Information Policy

It’s Time to Break up the NSA

says security guru Bruce Schneier on CNN.com.

His brief, readable piece articulates the three distinct – and conflicting – missions the NSA now has, and how they should be handled. It’s no hit piece: Schneier calls NSA’s Tailored Access Operations group “the best of the NSA and … exactly what we want it to do.”

The generals who have built NSA into a fiefdom will fight tooth and nail against true reforms like these, of course, but they’re the kind of reforms we need. The most prominent measures under discussion are mere nibbles around the edges of the problem, or worse.

Spying on Trade Lawyers

The latest NSA spying revelations involve international trade issues, in particular an Indonesian complaint brought at the WTO in response to a U.S. ban on clove cigarette.  (The trade problem was that the U.S. banned clove cigarettes, which are mostly made in Indonesia, but did not ban menthol cigarettes, a competing U.S.-made product). According to the New York Times, the Australian government monitored communications between the Indonesian government and its DC-based trade lawyers, possibly in relation to this case, and passed the information along to the NSA.  (Note that law prof Orin Kerr is skeptical about the way the story is presented in the Times.)

Let me offer the following thoughts:

1. It’s hard to imagine that any information gathered by the Australians had much impact on the WTO case. I suppose it could be a slight advantage to get an early look at your opponents’ arguments, and see how they are thinking about the issues. But I can also imagine that all this additional information would be a distraction, with too much time being spent on marginal points.  It’s worth noting that, in spite of any information U.S. government trade lawyers may or may not have received, the U.S. lost the case. Thus, like most NSA spying, any spying here was probably of limited value.

2. Regardless of its value, this kind of spying is likely to be pretty offensive to our trading partners. The WTO has detailed rules of procedure for its disputes, one of which says the parties must act in good faith (“all Members will engage in these procedures in good faith in an effort to resolve the dispute”). It’s hard to see how receiving confidential information about your opponents’ arguments, if that happened, satisfies this requirement. It will be interesting to see if this gets discussed in upcoming WTO meetings.

3. I wonder whether all of these revelations about spying will accelerate proposals being made by foreign governments to develop non-U.S.-based communications networks: “German Chancellor Angela Merkel said on Saturday she would talk to French President Francois Hollande about building up a European communication network to avoid emails and other data passing through the United States.”

Transparency and Liberty

John McGinnis has some kind words for work I oversee here at Cato in a recent blog post of his entitled: “The Internet–A Technology for Encompassing Interests and Liberty.”

As he points out, the information environment helps determine outcomes in political systems because it controls who is in a position to exercise power.

The history of liberty has been in no small measure the struggle between diffuse and encompassing interests, on the one hand, and special interests, on the other.  Through their concentrated power, special interests seek to use the state to their benefit, while diffuse interests concern the ordinary citizen or taxpayer, or in William Graham Sumner’s arresting phrase, The Forgotten Man. When the printing press was invented, the most important special interests were  primarily the rulers themselves and the aristocrats who supported them. The printing press allowed the middle class to discover and organize around their common interests to sustain a democratic system that limited the exactions of the oligarchs.

But the struggle between diffuse and special interests does not disappear with the rise of democracy. Trade associations, farmers’ associations and unions have leverage with politicians to obtain benefits that the rest of us pay for. As a successor to the printing press, however, the internet advances liberty by continuing to reduce the cost of acquiring information. Such advances help diffuse groups more than special interests.

The Internet is the new printing press, and we’re generating data here at Cato that should allow it to have its natural, salutary effects for liberty.

My favorite current example is the “Appropriate Appropriations?” page published by the Washington Examiner. It allows you to easily see what representatives have introduced bills proposing to spend taxpayer money, information that—believe it or not—was hard to come by until now.

In John McGinnis, we have a legal scholar who recognizes the potential ramifications for governance of our entry into the information age. Read his whole post and, for more in this area, his book, Accelerating Democracy: Transforming Governance Through Technology.

Dear America, I Saw You Naked

Politico has a hilarious, revolting, and insightful article, written by former Transportation Security Administration screener Jason Edward Harrington. It’s called “Dear America, I Saw You Naked.” The subhead: “And yes, we were laughing.”

Many of the images we gawked at were of overweight people, their every fold and dimple on full awful display. Piercings of every kind were visible. Women who’d had mastectomies were easy to discern—their chests showed up on our screens as dull, pixelated regions. Hernias appeared as bulging, blistery growths in the crotch area. Passengers were often caught off-guard by the X-Ray scan and so materialized on-screen in ridiculous, blurred poses—mouths agape, à la Edvard Munch. One of us in the I.O. room would occasionally identify a passenger as female, only to have the officers out on the checkpoint floor radio back that it was actually a man. All the old, crass stereotypes about race and genitalia size thrived on our secure government radio channels.

In July 2011, the D.C. Circuit Court of Appeals ordered the TSA to conduct a formal rulemaking and take comments from the public on the use of strip-search machines at airports. TSA took 20 months to propose a two-sentence regulation, which, as we pointed out to the agency, is totally defective.

The comment period closed in June last year and we have waited another seven months, at this point, for a final rule. When it comes out, it can be challenged in court under the “arbitrary and capricious” standard of the Administrative Procedure Act.

The evidence in the rulemaking docket shows that strip-search machines cost more in dollars, privacy, and dignity than they provide in security, which, as Harrington’s article again shows, is not very much: “We knew the full-body scanners didn’t work before they were even installed.”

Obama Administration Seeks to Head Off Spending Transparency

Congratulations to Cato’s media staff who worked though the night last night to produce an excellent Cato response to the State of the Union speech. It’s a lot of work, and they make it look easy.

At minute 10:00, my appearance in the video pivots from NSA spying and secrecy to a transparency issue that is just as important to the long-term maintenance of freedom in our country. It’s an issue you might not have heard about.

Leaked documents revealed this week that President Obama’s Office of Management and Budget is seeking to gut spending transparency legislation that is making its way through Congress. The DATA Act is intended to transform the U.S. government’s spending information from inaccessible documents buried in the executive branch into open data, available for the public to use. The House has passed one version. A Senate committee has forwarded another version of the bill to the floor.

Good First Steps, But Real Surveillance Reform Will Require More

The president’s speech on surveillance today proposed some welcome first steps toward appropriately limiting an expanding surveillance state — notably, an end to the NSA’s bulk phone metadata program in its current form, and a recognition that judges, not NSA analysts, must determine whose records will be scrutinized.

The details are important, however. Obama’s speech left open the possibility that bulk collection might continue with some third party — which would in effect be an arm of government — as a custodian. If records are left with phone carriers, on the other hand, it’s important to resist any new legal mandate that would require longer or more extensive retention of private data than ordinary business purposes require.

It was disappointing, however, to see that many of the recommendations offered by Obama’s own Surveillance Review Group were either neglected or specifically rejected. While the unconstitutional permanent gag orders attached to National Security Letters will be time-limited, they will continue to be issued by FBI agents, not judges, for sensitive financial and communications records.

Nor did the president address NSA’s myopic efforts to degrade the security of the Internet by compromising the encryption systems relied on by millions of innocent users. And it is also important to realize that changing one controversial program doesn’t alter the broader section 215 authority, which can still be used to collect other types of records in bulk—and for all we know, may already be used for that purpose.

Most fundamentally, Congress must now act to cement these reforms in legislation — and to extend them —to ensure safeguards implemented by one president cannot be secretly undone by another.