Category Archives: FISA

Are You A Crab?


People are so easily confused.  Mathematically if a = b and b = c, then a = c, and we can say that a and c are the same.  In the real world though, being equal and being the same are not synonyms.  They are related, but that is all.

We should have settled that particular concept as a nation a long time ago, and yet, we still haven’t gotten it through our collective thick skull.  We got it wrong – very wrong – at first.  We had to have drawn out court battles in order to reach the Supreme Court and have it ruled, specifically, that “separate but equal” is not.

We see many people who want to refer to the Constitution as the authority of the land, and in many ways, that is good and true.  It should never be forgotten though that it is a horribly flawed document and subject to revision and improvement.  Even the “founding fathers” knew this and that is why they had a built in mechanism for that change.  The very first thing they did after ratifying the Constitution was to change it.  Not only was that necessary to satisfy treaty commitments (because remember that, at the time, that is precisely what the document was), but it also demonstrated clearly that the document could, and should be changed as and when necessary.

We started with a clearly defined right to own people as property and no suffrage right for women (not until August 18, 1920) or non-land owning men.  In fact, a careful reading of the US Constitution shows that we have no constitutional right to vote at all.  It is inferred, much like the right to privacy, but it is not explicitly stated.  What we do find are a series of requirements that must be met if one is to be allowed to vote, and another set of requirements on which it is impermissible to base disenfranchisement of a citizen.  No, really.  Check it for yourself.  Here is the entire constitution right here.  You will find that you are required to own land (a constitutional requirement that has never been revoked), that you must be at least 18, that you may not be prohibited from voting “on account of sex,” nor “on account of race, color, or previous condition of servitude”, but no where will you find that it specifically grants that you have the right to vote in the first place.

Understand that it is this very important distinction which allows states to do things like revoke the rights of felons to vote, and establish voting requirements such as length of residency.  In some states, the voting rights of convicted felons are automatically restored, and in some states they require an act of the governor, which requires a petition on the behalf of the convicted felon.  It is this which allowed the states to institute the Jim Crow laws that included ridiculous and impossible “literacy tests” like this one.  (Go ahead.  Try it.  You’ve got 10 minutes.  Remember, as it says in the article, if you miss 1 question then you don’t get to vote.)

-> As an aside, understand also that the lack of a right to privacy will also be used, in court, and may already have been used in the FISA court, to justify programs like PRISM as the security apparatus violates the 4th amendment to track your metadata.  It has already been encroached on to say that there is “no legitimate expectation of privacy” in a public place (thus allowing the wide spread use of surveillance cameras “for your safety”), nor even when owning a cell phone. <-

Which brings us back to where we started today.  The notion of equivalency versus sameness.  We absolutely should strive for equality in society and under the law.  However, that does not mean that we are all the same.  Nor does it mean that we are all experiencing the same things.

Men and women are not the same.  Biologically we are different.  Society drives us into different directions and cross purposes all too often.  It does not mean that individuals may not cross these gender boundaries, or that they shouldn’t feel completely free to do so, but we are different.  Regardless of those differences though, we are still equal.  Right?  We ought to be able to agree on that.  Yet, we still find many sexists, and we still have major inequalities in our society in terms of pay, for example, not to mention in protections of the law for violence.

The Zimmerman verdict last weekend has sparked much outrage this week, and rightfully so.  It was a situation and trial that has been mishandled from the very beginning and ended with a verdict which was tragic.  As I wrote last week though, we have to accept it, because that is the foundation of our justice system.  If we have an issue with the verdict, then we have to address the system, not this specific case.  We have to, as I have seen some do, call for changes to the laws, and then we have to act on those calls.

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Apathetic After Shock


There has been a lot of talk recently, of course, about Edward Snowden and traitors.  There has been a great deal of public gnashing of teeth and wailing by our elected leaders over his release of the snazzy Micro$oft PowerPoint slideshow that was not meant for public consumption.  There was a really well done piece explaining how, under the definitions given in the US Constitution, Snowden has not committed treason.  Not going to talk about that today.  Not directly.

Instead, what I find bothersome is just how much acceptance there is about this from the vast majority of people.  I really shouldn’t be surprised, and I suppose I’m not really.  Still, I am disappointed.  When it broke, I had hoped that perhaps this would be sufficient to bring about a ground swell of anger and activity.  There was certainly an initial outburst of shock.  And, yet, very quickly since then …

There has been some small amount of noise at the fringes.  Reddit has been one place where a little activity has taken place.  The Daily Kos, EFF, and a lot of other organizations have quietly come out in opposition.  Note the key word being quietly.  These organizations sent out emails to their members.  I know.  I got some of them.  I certainly didn’t get all of them.  I’m not on all of their mailing lists.  There was some activity on the right.  Again, I know.  I saw some of it.  I heard about other, and I went looking to see if there was any in other places.  At the fringes, yes.  In the heart, in the mainstream?  No.  Not really.

stopwatching.us was set up to collect signatures.  I want to share with you a screen shot taken from that site on the morning of June 16, 2013.  It is a compilation that shows their “Selected Signatories.”  I’ve compiled the 4 categories that they have on four separate tabs – Organizations, Individuals, Businesses, and Members of US Congress – together for you to take in all at once.

Combined Selected Signatories

As of this morning, they have collected 178,350 signatures.  Please read that again.  That’s a sad number.

No one cares.  The majority of the country is so used to the intrusions of the PATRIOT Act, warrantless searches, surrendering our civil liberties in the name of security, and the concept that “If you have nothing to hide, then you have nothing to fear,”  that this kind of “revelation” is blasé.  No worries, mate.

According to one poll (as reliable as that may be), 54% of Americans think that Snowden did the right thing in exposing PRISM, but 53% still think he should be prosecuted.  A vast majority of people say they’re following the story closely.  My theory as to why?  Because to most people this is just the next episode in the Bourne Chronicles.  Most people are likely watching to see which scenario happens next.  Will he be subjected to “extraordinary rendition”?  Will he be found dead “by his own hand”?  Will he be mundanely arrested and extradited back to the US?  Will he become an “asset” of the Chinese or some other foreign government that would like access to the information he may still have not released yet?

They are not paying attention because they are interested in or concerned about the actual issues.  I see in both left of center and right of center blogs, as well as the main stream media the over-whelming theme of “Who cares?” about the program itself.  I actually read the words, “I am not sure I care if the government is reading my email or listening in on my phone calls as long as it keeps me safe.”  The majority of the coverage of this case is about who is Edward Snowden?  (My Google search for the term, “Who is edward snowden” returned 1,180,000,000 results)  What is Booz Allen Hamilton?  (A firm most of us had never heard of before.)  Should we be privatizing “national security”?  (A question that probably should have been asked 40 years ago, but which was answered as an inevitable part of the supply-side, conservative domination of the government over that time period.  What did y’all really expect?)  And, so on.  Very little about the intrusiveness of this program which in all likelihood has accomplished nothing in terms of actual security, despite claims to the contrary.
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Surprised? No. Outraged? Yes!


Let me begin with a question.  It is a simple question.  We’ll come back to the context in a moment.  In all seriousness.

Why are you surprised?  Or, perhaps, better, why would anyone be surprised?

The Guardian newspaper this week, using leaked documents, “revealed” the existence of “PRISM” – a broad program to collect “so-called meta data on your telephone calls.”  The article goes further to claim that the NSA also has direct backdoor access to the servers of major tech companies (Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL, and Apple) which between them own the vast majority of all online communications between e-mail, video, and chat.

Again, why would anyone be surprised?  This is really not news.  The specifics of it might be new, but we have known about the existence of this program for years.  I don’t think the public knew the name of the program, or had seen that nifty logo.  The Foreign Intelligence Surveillance Act (FISA) court was set up in the mid-1970s.  The PATRIOT Act was approved by near unanimous consent (357 to 66 in the House and 98 to 1 in the Senate) and signed into law by George W Bush on 10/25/2001.  It was introduced on 10/23.  So, in less than 48 hours it went from concept to law.  It was then renewed in 2006, and again in 2011 by the current POTUS.  It is these two laws which provide the broad foundations for the program, however, there are many, many other laws which have been passed that have aided and abetted the development of these programs.

Again, why are you surprised?  In 1979, the Supreme Court upheld this kind of invasion of privacy.  They found in the Smith v Maryland case, that collecting, what was called at the time the “pen register” (that is the time equivalent of the meta data), was legal.  This is the modern, technologically equivalent program.  When it goes further into the courts, they will uphold it.

The NSA has been involved in this kind of snooping and has been caught at it before.  We know this.  It isn’t new.  In 2005, the EFF filed a lawsuit against AT&T for illegally cooperating with the NSA to facilitate these actions.  If you read this article, or remember from the time period, you will note that the defense from the administration is almost precisely the same.

In 2006, one of the sitting FISA judges quit the appointment and others urged congress to give the FISA court a direct role in overseeing the wiretapping program.

“The administration defends the eavesdropping program, saying it is only targeting communications to and from suspected terrorists, that government lawyers review the program every 45 days and that Congress authorized the president to track down 9/11 co-conspirators, thereby giving the president the ability to bypass wiretapping laws.”

In 2009, the director of the National Cybersecurity Center resigned, and blamed the NSA’s “pwer grab” as a threat to “our democratic process.

In 2001, William Binney resigned from the NSA  after more than 30 years, including time as director of the World Geopolitical and Military Analysis Reporting Group, and started blowing the whistle, warning about the size and scope of the NSA’s surveillance program.

This is not tin foil hat conspiracy theory territory.  This is you can only be surprised if you weren’t paying attention.  This is, “If you aren’t angry, you aren’t paying attention” territory.

For most of the last 60 years there has been talk of Project ECHELON.  Not just in tin foil hat, conspiracist circles where we can laugh at it, but also in the halls of government, with official investigations.  There have been actual investigations and acknowledgements of its existence with accompanying refusals to discuss its full expanse.  Sound familiar?

Many in our governments, around the world, took Orwell’s 1984 not as a warning, but as a guidebook, just as many right wingers took Ayn Rand’s work not as a poorly written morality play, but as the writings of a prophetess.

Now, as I said, there is no reason that anyone should be surprised.  However, that does not mean that we should not be outraged, nor does it suggest that we should accept it.  I hope that this will be the moment that people will awake and arise.  I do not expect it, but I do hope for it.  Perhaps we will remember and live up to the words of at least one of the “Founding Fatherstm

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