[Politech] John Gilmore on NYT and wiretapping innocent people on the Internet [priv]


Dan Solove's note on NYT article:
http://www.politechbot.com/2005/10/24/making-universities-pay/
Details on new lawsuit:
http://www.politechbot.com/2005/10/24/wiretapping-rules-face/
-Declan

-------- Original Message --------
Subject: Re: [Politech] Wiretapping innocent people on the Internet
Date: Tue, 25 Oct 2005 10:20:16 -0700
From: John Gilmore <gnu@toad.com>
To: Declan McCullagh <declan@well.com>, gnu@toad.com

The NYT covered this story, on the front page, too. But somehow it
was all about "Colleges Protest Call to Upgrade Online Systems". It
wasn't about the government automating the bugging of every student,
professor, and staff person by typing a few commands from the basement
of the FBI building. The nasty word "wiretap" didn't appear til the
eighth paragraph, "below the fold", and when it did appear, it was
buried in mid-sentence, right next to "criminals, terrorists and
spies". (They never wiretap "citizens", "innocent bystanders", or
"suspects", and everyone wiretapped is of course guilty-as-charged,
though they haven't been charged with any crime yet.)

There's no shortage of bias in the New York Times, but this is a
particularly blatant example. Now why is it in the interest of
the Times to build wiretapping into the hardware of the Internet?

The story also claimed that "Because the government would have to win
court orders before undertaking surveillance, the universities are not
raising civil liberties issues." I think there's a civil liberties
issue when the US Government wants to wire the country like the Stasi
wired East Germany for indiscriminate bugging. And there's no
"winning" of these court orders; they happen in secret, without the
participation or knowledge of the target of the wiretap. The
university cannot appear in court to argue about whether the order
should be issued (and very few challenge them after issuance). In
most cases the judge is *required* to issue the secret wiretap order
every time the Feds merely say "we need the info". To get 99% of such
orders, they don't need a warrant, nor probable cause to believe that
a crime has been committed.

What used to be tough wiretap standards have been whittled away inch
by inch by decades of aggressive pushing on the part of the FBI, DEA,
CIA, NSA, and DoJ. In August, one judge woke up and published a
decision that said, despite his previously regular issuance of secret
orders to track the location of peoples' cellphones in real time,
without probable cause or any suspicion of criminal activity, he was
concerned about whether this routine secret practice was actually
legal. (See http://www.eff.org/news/archives/2005_09.php#004002).
Bravo for that one judge who found his conscience. The government
argues that under the same conditions (no warrant, no reason to
suspect you in particular), they can monitor about 40% of the bits you
send over the Internet, in real time, including where you are, who
you're talking with, what protocols you're using, and every URL, email
address, IM name, or other "addressing and signaling information".
(I argue that they don't have this authority, but I never get to show
up in court at these discussions with the judge.)

Not only is this information supposedly legal for the government to
get about every citizen, it's perfect for automated software tracking
of who's-talking-to-who, all the time. The NSA term for it is
"traffic analysis", and most of it works even if your communications
are encrypted.

I understand why the authoritarian brass would want routine wiretaps
of the innocent; as Orson Welles said, "Only in a police state is the
job of a policeman easy." They've lost sight of their goal (keeping
people safe and free), yet redoubled their efforts. Why this would be
in the interest of the citizens (or the FCC, or the NY Times) is the
puzzle.

John Gilmore (speaking for myself)
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