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Thursday, January 30, 2014

Finally, a legal challenge to US warrantless wiretapping that beats the Catch-22

By Cory Doctorow
Jan 30, 201

Last October, the Justice Department made a seemingly cosmetic change to its procedures related to NSA surveillance: requiring prosecutors to tell defendants when the evidence against them originated with a warrantless wiretap (remember that the NSA made a practice of handing warrantless wiretapping data over to the DEAand other agencies, who would then request a warrant in order to create a plausible, public source of evidence).
But that change made all the difference. Last year, the Supreme Court ruled that you couldn't sue the government over warrantless wiretapping unless you had direct evidence that you'd been spied on. The catch? The only way to get evidence that you'd been spied on was to sue the government, which you couldn't do without evidence.
The first defendant to be notified that the case against him was built on warrantless wiretaps is an Uzbek human rights activist who lives in Colorado, named Jamshid Muhtorov. Under the new rules, Muhtorov now has the evidence he needs to challenge the government's program of warrantless surveillance -- and that's just what he's doing. The ACLU has taken his case, and have filed a motion [PDF] challenging the evidence against him.
A win for Muhtorov would be a win for America, and for everyone who believes that you can't fight crime while ignoring the law.
Muhtorov and his counsel from the American Civil Liberties Union (ACLU) filed a new motion against the government in his pending criminal case. In his 69-page brief, he argues that the “fruits of the [FISA AA] surveillance” be suppressed on the grounds that his Fourth Amendment rights, protecting against unreasonable search and seizure, were violated.
"The FISA Amendments Act affords the government virtually unfettered access to the international phone calls and e-mails of US citizens and residents,” ACLU Deputy Legal Director Jameel Jaffer said in a statement. “We’ve learned over the last few months that the NSA has implemented the law in the broadest possible way and that the rules that supposedly protect the privacy of innocent people are weak and riddled with exceptions. Surveillance conducted under this statute is unconstitutional, and the fruits of this surveillance must be suppressed."

Sunday, January 26, 2014

Why the hyper-rich turn into crybabies when "one percent" is invoked

The Brittle Grip Part 2

By Josh Marshall
Jan 25, 201

Let me state the phenomenon as clearly as possible: The extremely wealthy are objectively far wealthier, far more politically powerful and find a far more indulgent political class than at any time in almost a century - at least. And yet at the same time they palpably feel more isolated, abused and powerless than at any time over the same period and sense some genuine peril to the whole mix of privileges, power and wealth they hold.

There is a disconnect there that is so massive and glaring that it demands some sociocultural explanation. I've written about this before (Part 1). But I confess not terribly well because I've found it a difficult issue to get my arms fully around and to reorient my focus on day to day events to the longer horizon. But I do think it's one of the core political and economic issues of our time and deserves real explanation.

I first started noticing this when I saw several years ago that many of the wealthiest people in the country, especially people in financial services, not only didn't support Obama (not terribly surprising) but had a real and palpable sense that he was out to get them. This was hard to reconcile with the fact that Obama, along with President Bush, had pushed through a series of very unpopular laws and programs and fixes that had not only stabilized global capitalism, saved Wall Street but saved the personal fortunes (and perhaps even the personal liberty) of the people who were turning so acidly against him. 

Indeed, through the critical years of 2009, 10 and 11 he was serving as what amounted to Wall Street's personal heat shield, absorbing as political damage the public revulsion at the bailout policies that had kept Wall Street whole.

Let's start by stipulating that no one expects the extremely wealthy to react happily to mounting discussion of wealth and income inequality or left-wing diatribes about "the 1%." But again, the reaction is extreme and excessive and frequently runs into less comical versions of Perkins' screed, with weird fears of persecution and threat from the folks who quite truly rule the roost.

Here's an exchange I had more recently with one of the wealthiest persons in the United States on the issue of perceptions of Obama among the very wealthiest Americans. 
Let me start by saying that I am not a fan of rich people complaining they're being mistreated... That said, all the rich people I know think that Obama is trying to whip up anti-1% sentiment. The irony is that Obama's policies have been fine for rich people -- taxes have stayed low, almost nobody got prosecuted coming out of the financial meltdown, etc. But the feeling is real.

So what is it about?

I see three basic roots, though I don't think my list is exhaustive.

One is the simple but massive run up in the concentration of wealth itself over the past two generations. There's a slice of the population, whether it's the top 1% or .01% or whatever, that doesn't just have more stuff and money. The sheer scale of the difference means they live what is simply a qualitatively different kind of existence. That gulf creates estrangement and alienation, and one of a particular sort in a democracy where such a minuscule sliver of the population can't hope to protect itself alone at the ballot box.

Let's call this socioeconomic acrophobia.

A second is tied specifically to the 2008 financial crisis. The last 35 years or so have seen a period in which the celebration of wealth and the wealthy has been near the extreme end of the pendulum swing that has moved back and forth over the course of American history. Let's not distract ourselves, for the moment, with whether this view is right or wrong. It's a pendulum swing as old as America. In this view, the super rich, the founders and most successful entrepreneurs, not only wow us by their genius and success but are also seen as the people driving forward the society and economy and prosperity for everyone. That's a nice climate to be wealthy in.

That all changed very abruptly at the end of 2008.

Suddenly, there was vast public animus at "Wall Street" and the Big Banks, exacerbated massively by the politics of the bailout. And not just from the left but from the right too, though in a different form. Pretty deserved on many levels: the financial sector, the figurative "Wall Street", had come close to crashing the global economic system by a mix of irresponsible risk taking and gaming the political system to permit this high-risk, wealth-juicing leverage. But if we're to understand the psychology of the individuals involved we must appreciate the whipsaw nature of that experience.

Quite simply, these were and are folks who just weren't used to public criticism. 

The whole "masters of the universe" mythology was basically, sure we're massively wealthy. But we're also the ones keeping the globe we all live on from spinning off its axis. So let us enjoy our Hamptons estates and our private jets in peace and we'll do our jobs and you do yours. The crossfire hurricane that ripped apart that social contract stung a lot.

And then there's the other really important variable in the equation. We know now that Wall Street came out of the financial crisis pretty nicely. But that was far from clear in the fall of 2008. The titans, under-titans and sub-titans saw the entire financial system spin on the edge of un-self-regulating collapse, something the reining ideology of recent decades said shouldn't have been possible along with the real prospect of whole personal fortunes evaporating in an instant. 

That kind of scare is not easy to forget. Mix it with the need to run to the political class hat in hand and that ocean of animus from the public at large and you get the makings of a political and psychological toxicity that breeds Perkinsonian nonsense at the extreme end and more pervasively the sense of embattlement and threat verging on persecution complex that I described above.

It is that mix of insecurity, a sense of the brittleness of one's hold on wealth, power, privileges, combined with the reality of great wealth and power, that breeds a mix of aggressiveness and perceived embattlement.

Third there is the simple fact of Obama himself. By various criteria you could argue that before Obama, America hadn't had a progressive president in decades. Popular perceptions aside, Carter was actually part of the privatizing trend of the late 70s. And Clinton, while genuinely a progressive in many ways, served most of his presidency during a period when basically everyone was either getting rich or making at least some progress. And when everybody is getting at least some taste of the good times, these sorts of antagonisms find a way of getting overlooked or passed over. 

President Obama is far from being a Franklin Roosevelt or Harry Truman. But he is a progressive and sees the economy and the larger society's claims on the very wealthy differently than a Bush or a Reagan. And again, that was just not something any of these folks had experienced before.

But again, the answer is the confluence of these events, no one of them. It's worth remembering that Bill Clinton pushed through a reasonably substantial tax hike on upper income earners in 1993. President Obama meanwhile largely maintained the tax policies of George W. Bush, the guy who had in essence repealed Clinton's tax increase. These are all facts that are hard to ignore.

Put it all together and you get the climate in which someone like Perkins writes something as ridiculous as he did. As I said up top, his Holocaust analogy is so hyperbolic and ridiculous that he's getting dumped on by almost everyone. But we miss the point if we see this in isolation or just the rant of one out-of-touch douchebag. It is pervasive. The disconnect between perception and reality, among such a powerful segment of the population, is in itself dangerous. And it's led to what I would call a significant radicalization of the politics of extreme wealth. My evidence for this is only anecdotal. But it's come up in conversations I've had with many business reporters who cover these folks on a daily basis.

We take it more or less rightly as a given that people in finance will have generally right-leaning politics - low taxes, tight money, lax regulatory regimes. Basically traditional money Republicanism. But over the last few years (since 2008), I think there's been a pretty dramatic growth in what we'd call Tea Party politics in that set - extreme conservatism that goes beyond hands off fiscal and regulatory policy, the kind of feverish mindset in which you could write with a straight face that progressives might be building toward some sort of mass wealth confiscation or internment or even extermination for the likes of Tom Perkins.

It's a problem. And Perkins is just getting our attention because his self-censor and/or editor failed him so miserably.


Saturday, January 25, 2014

Live Q&A with Edward Snowden: Thursday 23rd January

Snowden: laws aren't enough to stop spying, we need technology that keeps our secrets 

Cory Doctorow
Boing Boing
Jan 24, 2014

Summary of Twitter Interview
In a live Q&A conducted on Twitter yesterday, Edward Snowden answered questions about the state of security and freedom in the world. While the whole interview in interesting, I was most struck by his answer to a question on how states should react to the news of widespread snooping:
We need to work together to agree on a reasonable international norm for the limitations on spying. Nobody should be hacking critical-to-life infrastructure like hospitals and power stations, and it’s fair to say that can be recognized in international law.
Additionally, we need to recognize that national laws are not going to solve the problem of indiscriminate surveillance. A prohibition in Burundi isn’t going to stop the spies in Greenland. We need a global forum, and global funding, committed to the development of security standards that enforce our right to privacy not through law, but through science and technology. The easiest way to ensure a country’s communications are secure is to secure them world-wide, and that means better standards, better crypto, and better research.
I agree that technology is a very important -- crucial and necessary -- part of the answer, but I think it's incomplete on its own. The right way to think about this is Lessig's idea that regulation is accomplished by norms, laws, technology and markets. It's important that we have technology that is as good as it can be in order to keep people secure -- that's why it's so disastrous that the W3C has paved the way for DRM in all browsers, because it's illegal to report defects in DRM, and that means that browsers (which are in every pocket and on every desktop, and are thus very valuable to attackers) will have long-lived vulnerabilities that can be exploited by snoops and crooks.
But as we see from the DRM example, there's also a legal question: if it's illegal to make technology secure, then technology will be less secure. And there's a normative question: if people believe that it's reasonable and proportionate to design computers that treat their owners as untrusted hostiles, then we'll get that kind of computer. If there's widespread consensus that problems shouldn't be solved by designing computers to attack their owners, then we'll get less of that.
Finally, there's markets: if there's normative consensus that privacy is worth doing something about, and no laws preventing pro-privacy technology, and technology that can supply good privacy, then companies will manufacture and sell those technologies, in states that default to privacy.
All four of these mechanisms -- markets, norms, tech and law -- strengthen one another. No one is sufficient on its own, but each one makes it easier to attain the rest.
Live Q&A with Edward Snowden: Thursday 23rd January, 8pm GMT, 3pm EST (via Internet Evolution)

"The people you need to watch out for are the unaccountable senior officials authorizing these unconstitutional programs, and unreliable mechanisms like the secret FISA court, a rubber-stamp authority that approves 99.97% of government requests (which denied only 11 requests out of 33,900 in 33 years). They’re the ones that get us into trouble with the Constitution by letting us go too far."
Entire Twitter Interview Here

Monday, January 20, 2014

The contamination’s reveal comes just one week after it was revealed that the Alberta government would hand over regulatory responsibility for the province’s tar sands industry to a corporation that’s funded entirely by Canada’s oil, coal and gas industry.

Scientists Find 7,300-Mile Mercury Contamination ‘Bullseye’ Around Canadian Tar Sands 

By Emily Atkin 
Dec. 30, 201

Just one week after Al Jazeera discovered that regulatory responsibility for Alberta, Canada’s controversial tar sands would be handed over to a fossil-fuel funded corporation, federal scientists have found that the area’s viscous petroleum deposits are surrounded by a nearly 7,500-square-mile ring of mercury.
Canadian government scientists have found that levels of mercury — a potent neurotoxin which has been found to cause severe birth defects and brain damage — around the region’s vast tar sand operations are up to 16 times higher than regular levels for the region. The findings, presented by Environment Canada researcher Jane Kirk at an international toxicology conference, showed that the 7,500 miles contaminated are “currently impacted by airborne Hg (mercury) emissions originating from oilsands developments.”
The Canadian government touts Alberta’s oil sands as the third-largest proven crude oil reserve in the world, next to Saudi Arabia and Venezuela. The region’s heavy crude oil is mixed with clay, bitumen, and a good deal of sand — hence the name “oil sands.” This makes for a unique and energy-intensive extraction process that some scientists say produces three times the greenhouse gas emissions of conventionally produced oil. Environment Canadahas said it expects production emissions from tar sands to hit 104 million tonnes of CO2 by 2020 under current expansion plans.
Giant oil companies across the United States are currently investing in Canada’s tar sands as part of their role in the Keystone XL pipeline, which would carry tar sands oil from Alberta all the way to Texas. The pipeline would double imports of tar sands oil into the United States and transport it to refineries on the Gulf Coast and ports for international export. The oil sands industry itself is undergoing a major expansion, powered by $19 billion a year in investments, according to Bloomberg News.
Mercury pollution is just the latest contamination-related environmental woe to hit the tar sands. In May of this year, leaks of the oil started popping up in Alberta, and haven’t yet stopped. In September, the company responsible for the leaks was ordered to drain a lake so that contamination on the lake’s bottom could be cleaned up. By September 11, the leaks had spilled more than 403,900 gallons — or about 9,617 barrels — of oily bitumen into the surrounding boreal forest and muskeg, the acidic, marshy soil found in the forest.
Environment Canada’s research on the mercury pollution reportedly suggested that tar sands development has created a “bullseye” of contamination, with the highest levels of mercury found in the middle. The research also included indications that the toxin was building up in some of the area’s wildlife, with elevated levels being found in some birds’ eggs. Mercury pollution is particularly disconcerting because of its ability to bioaccumulate, meaning it tends to become more concentrated as it moves up the food chain.
The contamination’s reveal comes just one week after it was revealed that the Alberta government would hand over regulatory responsibility for the province’s tar sands industry to a corporation that’s funded entirely by Canada’s oil, coal and gas industry. The Alberta Energy Regulator (AER) said it would take over the duties of the now defunct Energy Resources Conservation Board (ERCB) — which was funded in part by taxpayers — and Alberta Environment and Sustainable Resource Development.
The shift to the AER as the main environmental regulator in Alberta is part of the provincial government’s plan to streamline the approval process for oil companies. It’s drawn concern from environmentalists in Alberta, who are worried that the AER’s financial backing from the fossil fuel industry makes the group too close to the industry it’s supposed to regulate.

Friday, January 03, 2014

The question of who is allowed access to what data is a defining one of our age – and Edward Snowden has taught us to be wary

David Cameron's internet porn filter is the start of censorship creep 

By Laurie Penny 
The Guardian 
January 2, 2014
[Emphasis added]

Picture the scene. You're pottering about on the internet, perhaps idly looking up cake recipes, or videos of puppies learning to howl. Then the phone rings. It's your internet service provider. Actually, it's a nice lady in a telesales warehouse somewhere, employed on behalf of your service provider; let's call her Linda. Linda is calling because, thanks to David Cameron's "porn filter", you now have an "unavoidable choice", as one of 20 million British households with a broadband connection, over whether to opt in to view certain content. Linda wants to know – do you want to be able to see hardcore pornography?
How about information on illegal drugs? Or gay sex, or abortion? Your call may be recorded for training and monitoring purposes. How about obscene and tasteless material? Would you like to see that? Speak up, Linda can't hear you.
The government's filter, which comes into full effect this month after a year of lobbying, will block far more than dirty pictures. That was always the intention, and in recent weeks it has become clear that the mission creep of internet censorship is even creepier than campaigners had feared. 
In the name of protecting children from a rotten tide of raunchy videos, a terrifying precedent is being set for state control of the digital commons. Pious arguments about protecting innocence are invariably marshalled in the service of public ignorance. 
When the first opt-in filtering began, it was discovered that non-pornographic "gay and lesbian" sites and "sex education" content would be blocked by BT. After an outcry, the company quickly changed the wording on its website, but it is not clear that more than the wording has been changed. The internet is a lifeline for young LGBT people looking for information and support – and parents are now able to stop them finding that support at the click of a mouse.
Sexual control and social control are usually co-occurring. 
Sites that were found to be inaccessible when the new filtering system was launched last year included in some cases helplines like Childline and the NSPCC, domestic violence and suicide prevention services – and the thought of what an unscrupulous parent or abusive spouse could do with the ability to block such sites is chilling. The head of TalkTalk, one of Britain's biggest internet providers, claimed that the internet has no "social or moral framework". Well, neither does a library. Nobody would dream of insisting a local book exchange deployed morality robots to protect children from discovering something their parents might not want them to see.  
Online, that's just what's happening, except that in this case, every person who uses the internet is being treated like a child.
Every argument we have heard from politicians in favour of this internet filter has been about pornography, and its harmful effect on young people, evidence of which, despite years of public pearl-clutching, remains scant. 
It is curious, then, that so many categories included in BT's list of blocked content appear to be neither pornographic nor directly related to young children.
The category of "obscene content", for instance, which is blocked even on the lowest setting of BT's opt-in filtering system, covers "sites with information about illegal manipulation of electronic devices [and] distribution of software" – in other words, filesharing and music downloads, debate over which has been going on in parliament for years. It looks as if that debate has just been bypassed entirely, by way of scare stories about five-year-olds and fisting videos.  
Whatever your opinion on downloading music and cartoons for free, doing so is neither obscene nor pornographic. Cameron's porn filter looks less like an attempt to protect kids than a convenient way to block a lot of content the British government doesn't want its citizens to see, with no public consultation whatsoever.
The worst thing about the porn filter, though, is not that it accidentally blocks a lot of useful information but that it blocks information at all.  
With minimal argument, a Conservative-led government has given private firms permission to decide what websites we may and may not access. This sets a precedent for state censorship on an enormous scale – all outsourced to the private sector, of course, so that the coalition does not have to hold up its hands to direct responsibility for shutting down freedom of speech.
More worrying still is the inclusion of material relating to "extremism", however the state and its proxies are choosing to define that term. Bearing in mind that simple protest groups like tax justice organisation UK Uncut have been labelled extremist by some, there is every chance that the categories for what constitutes "inappropriate" online content will be conveniently broad – and there's always room to extend them. 
The public gets no say over what political content will now be blocked, just as we had no say over whether we wanted such content blocked at all. Records of opt-in software will, furthermore, make it simpler for national and international surveillance programmes to track who is looking at what sort of website. 
Just because they can doesn't mean they will, of course, but seven months of revelations about the extent of data capturing by GCHQ and the NSA – including the collection of information on the porn habits of political actors in order to discredit them – does make for reasonable suspicion. 
Do you still feel comfortable about ticking that box that says you want to see "obscene and tasteless content"? Are you sure?
The question of who should be allowed to access what information has become a defining cultural debate of the age. Following the Edward Snowden revelations, that question will be asked of all of us in 2014, and we must understand attempts by any state to place blocks and filters on online content in that context.
Policies designed for controlling adults have long been implemented in the name of protecting children, but if we really want to give children their best chance, we can start by denying private companies and conservative politicians the power to determine the minutiae of what they may and may not know. 
Instant access to centuries of information and learning is a provision without peer in the history of human civilisation. For the sake of the generations to come, we must protect it.