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Sunday, September 27, 2015

How the State is Breaking the Social Contract

This is a brief epistemology arguing the U.S. government is in violation of the Lockean "social contract" and is likely to remain in a state of violation. I am not arguing for the overthrow of the government, but for individuals to seek tools to protect their own privacy. If this argument holds, it would also mean that it is immoral for governments to interfere with the self-defense of privacy online (via encryption, etc.)

Claim: The U.S Government no longer respects the right to privacy and is thus in violation of the social contract.

1. Privacy is a Natural Right.
  • State control of information much easier and less invasive today. Contextual right based on expectation of privacy (see Katz v. United States, 1967) is unenforceable, since the “expectation of privacy” has been eroded away by nearly limitless spying capabilities (see Xkeyscore).
  • If privacy is to be considered a right at all, it must be defended as a natural right, since it is impossible to defend oneself against arbitrary power if the state can intercept your most sensitive communications at will. 

2. The U.S. Government is strongly incentivized to abuse individual privacy.
  • Voters don't care about privacy, and generally don't understand complex issues involved.
  • Congress faces little pressure from an ignorant public so poor oversight of executive power will likely remain routine.
  • Courts have little choice but to rule “no standing” on secret authority, so justice is unlikely through normal channels.

3. The U.S. Government is centralizing authority within the executive.
  • Bush and the Unitary Executive: The pressures of the War on Terror force the centralization of power in a "strong man" executive.
  • Abuse of PATRIOT Act powers were rampant within the NSA, but unknown publicly until Snowden's whistleblowing. 
  • The centralizing of executive power means that legislative authority is playing a diminishing role in governance, and is less to reign in threats to privacy rights.

4. The diminution of technical barriers to absolute power is detrimental to privacy.
  • Xkeyscore: NSA can query massive database and look at content of messages without warrants.
  • The Five Eyes Alliance proves that states get around legal and technical barriers to domestic spying by sharing information among each other. 
  • Since these capabilities grew in secret until a very risky lawbreaking occurred (the Snowden leaks), and such monumental leaks are very rare, it is reasonable to assume the legal barriers to government spying are likely to remain behind technical capabilities.

5. Since its abuses of privacy are rampant and likely to remain unchecked by other branches, the Executive is in violation of the social contract.
  •  This means that individuals must seek alternatives to enforce their own privacy rights, since government interests are opposed.

Saturday, September 19, 2015

Government Spies See Opportunity in Terrorist Attack

As if they weren’t Machiavellian enough, spy agencies are evidently waiting for the next terrorist attack to change public opinion on the need for encryption backdoors, reports The Washington Post.

The intelligence community’s top lawyer, Robert S. Litt, lamented in a leaked email that “the legislative environment is very hostile today … [but] it could turn in the event of a terrorist attack or criminal event where strong encryption can be shown to have hindered law enforcement.” According to the Post, Litt suggested there may be value in “keeping our options open for such a situation.”

A second senior intelligence official added: “People are still not persuaded this is a problem. People think we have not made the case. We do not have the perfect example where you have the dead child or a terrorist act to point to, and that’s what people seem to claim you have to have.”

The intelligence community has been frustrated by resistance to its attempts to weaken encryption through legislation. Congress does not have any legislation on deck that would require companies to hack their own customers if the government can produce a warrant. A “dead child” would undoubtedly help their cause with the public. But their “we need a terrorist attack to prove that people should be worried about terrorist attacks” theory is troubling, to put it mildly.

The leaked email obtained by the Post is another disturbing glimpse into the mindset of intelligence officials. The pursuit of spying capabilities is given paramount importance, despite their widely acknowledged ineffectiveness in fighting terrorism and the damage they do to the security of the internet.

I recently argued the U.S. government’s hunger for information could remain largely unrestrained by traditional constitutional protections due to ongoing information warfare with authoritarian states. While he may not have discussed the merits of warrants, Litt made it known internally that he views domestic spying as a competition the U.S. has with foreign adversaries: “Does anyone seriously believe that if the U.S. says we won’t seek access, the Chinese and Russians will say, ‘OK, you are right. We’ll give up?’ I don’t think so,” he snorted in the leaked email.

The tendency of public officials to exploit tragedy for political gain is of course not new. It is particularly troubling when it is utilized purely for the expansion of power by the security apparatus and echoes the period after the September 11 terrorist attacks when the security establishment had the USA PATRIOT Act ready to roll out, stocked full of new powers that had been cut from Clinton’s 1996 counter-terrorism legislation to make it acceptable to Congress.

The leak underscores the problems associated with secret laws, secret courts, secret spying programs and the failure of the democratic process to secure privacy rights. The competitive nature of domestic spying programs could compel states to further erode privacy rights within their own borders in the pursuit of “national security.” What sort of security that leaves us with remains to be seen.

[Published at C4SS Sep. 18, 2015]

Sunday, September 13, 2015

The Natural Right of Flawless Encryption

Amid claims by U.S. officials that a “golden key” to all forms of encryption software is necessary to fight terrorism, a UN Report released in May asserts that securely encrypted communications among private citizens aren’t just permissible, but a human right. The report’s author, UC Irvine professor David Kaye, notes the problem of creating a weakness in all encryption systems for the U.S. government due to the high probability that any “golden key” access will likely end up in the hands of foreign governments and hackers, making the encryption useless.

Kaye’s pragmatic argument is valid, and popular among cryptographers and privacy advocates. But this argument doesn’t go far enough. Denying governments the right to crack encryption isn’t just defensible on pragmatic grounds. Encryption is a vital tool to prevent abuses of power since even the most benevolent governments have proven untrustworthy and unlikely to ensure the protection of rights when their interests fail to align with those of the governed.

State actors tend to subordinate the right of privacy to the expansion of their own information gathering. Regardless of states’ procedures designed to ensure individual rights are protected, the unchecked expansion of invasive capabilities that they naturally pursue indicate that there may be fundamental flaws in the democratic model. Air-tight encryption may be the only reliable antidote.

Privacy is a Natural Right

As libertarian scholar Michael Rozeff notes:

The origin of privacy is social necessity. Social cooperation and interaction, freely given, depend on it. Speech depends on it. Not being fearful depends on it. Operating as an autonomous person depends on it. No one can operate at all well without feeling that he can take a walk or a drive or say something in privacy, unmonitored by a State agency. To be monitored in all forms of private activities is a form of imprisonment! One may roam, but one is constantly under guard and subject to State intrusions.

As Rozeff indicates, a society that lacks the ability to communicate privately does not have free-thinking, autonomous individuals. It is populated by something more akin to inmates who have surrendered their sovereignty to the state and live in a tightly controlled environment where freedoms only exist at the discretion of administrators. A life where every action is taken looking over one’s shoulder doesn’t lend itself to building trust, social progress,  or otherwise growing a free society. The technical limitations imposed on states are among the least celebrated guarantors of human liberty; imperfect control of information forces states to build consensus and leaves them less able to establish totalitarian systems.

Privacy is an essential component of human liberty, but the United States Supreme Court has taken a half-hearted approach to protecting it. Constitutional law considers privacy highly contextual, and allow for tradeoffs between personal privacy and “public interests.” Currently, the standard set in 1967 by Katz v. United States establishes that a privacy right exists in a certain situation if it can be reasonably expected, and if society agrees that this expectation is reasonable. Subsequent rulings have affirmed this standard up through this year.

This is problematic in our densely interconnected world, since there isn’t broad agreement on what type of communication qualifies, nor a broad understanding of how technology works. The end result has been a Byzantine mess of case law leaving a trail of injustice in its wake, and a global surveillance apparatus that takes advantage of the confusion by growing its power in secret.

Elevating the right of privacy to that of a natural right protects the act of communication itself and ensures it is not dependent on ever-shifting context, according to NYU legal scholar Richard Epstein. Epstein notes that “a natural right is defined as an independent right not contingent on any situational or environmental factors. If privacy is a natural right, that right would apply to both the real and online worlds, equally to employees, students, library users, browsers, and consumers.” The contextual approach approved by the Supreme Court means “an individual’s right to privacy waxes and wanes based on what one is doing.”

The Snowden leaks in June 2013 revealed that the U.S. and its allies are disinterested in restraining themselves with warrants and Constitutional principles. This makes the “contextual” standard even more complicated, since individuals can now expect that they may well have no privacy rights at all. To prevent the right to privacy’s diminution into some curious historical artifact, a broad-based natural rights standard clearly makes more sense.

Constitutional law can only provide so many answers, and only within a framework of specific precedents. But if we consider that a person has a natural, rather than a contextual right to protect their communication or other information, it follows that a person has the right to defend their privacy with whatever tools are available, regardless of the needs of the state. Only air-tight encryption takes the burden of enforcement away from the state and enables the individual to defend his or her own natural right to privacy.

Governments Obey Incentives, Not Laws

The Snowden leaks proved that individuals must take responsibility for their own privacy by revealing an inherent problem at the heart of constitutional government. By revealing the inner workings of the surveillance state, the leaks showed us governments don’t obey constitutions or laws, per se. Like the rest of us mere mortals, state actors obey incentives. The FISA Act shows that Congress defers heavily to state power and seems mostly unconcerned with privacy rights. This helped to create a culture of apathy for privacy protection within the secretive administration of spying programs as well. One former FISA judge even said the FISA Court “has turned into something like an administrative agency,” rather than a proper court.

Given public ignorance, there seems to have been little incentive for legislators to keep a close eye on the NSA or develop a thorough understanding of the technology it employed. Where incentives are weak, government agents are unlikely to restrain their own behavior. And incentives for government actors to self-restrain are especially absent in the cloak-and-dagger world of “national security.” With incentives lacking, “going dark” and denying the state access to encrypted data seems the only reasonable protection.

Even if some democratic governments make a sincere attempt to follow their own laws, they will likely find themselves at a tactical disadvantage against more oppressive governments. As The Atlantic recently noted, “this new world is significantly imbalanced in favor of non-democratic nations — not because authoritarian states are more technologically sophisticated than their democratic counterparts, but because they are more institutionally flexible, opaque, unaccountable, and often corrupt.” The asymmetric nature of cyberwarfare means that even less oppressive states are likely to internally rationalize that violating privacy rights is necessary to battling spies, hackers, terrorists and other offenders.

In this context, it is clear that a golden key is a nuclear weapon against privacy; it ensures the state has the ability to violate privacy broadly and indiscriminately, without separating the innocent from the guilty. A key that opens every safe means that no safe can ever be secure from illegal search and seizure, given the impossibility of ensuring that governments will obey their own laws when acting under the veil of “national security” secrecy. This has already been shown in a number of instances, such as the secret infection of PCs all over the world with spyware. Any government that restrained its own use of the golden key would be at a tactical disadvantage, and would thus find itself in an unsustainable position.

Encryption is Power

Encryption is, at its core, a form of counter-power. It is a sword that can be wielded against an oppressor to expose its most nefarious activities, and a shield against injustice, able to protect a defendant against a meatgrinder justice system. Encryption protects information and buys the owner of that information options, time, leverage and influence. Encryption has become an essential tool of individual sovereignty, much like the printing press was for previous generations.

We have all heard the adage “knowledge is power.” In previous centuries, access to knowledge was tightly controlled by the clergy and state officials. In the Information Age, the ability to control access to knowledge ensures the empowerment of the individual even when the interests of the state are opposed. This is changing the relationship between the state and the individual in remarkable ways. In the past, the government could access virtually any information that you didn’t destroy or hide effectively. They could get a warrant and break into your home within a few minutes; if you had an extra-sturdy safe, they could smash their way in within a few hours or days. Governments around the world knew that escalation of force will get them what they want, sooner or later.

But that era ends with perfect encryption. AES-256 cannot currently be breached without the keys, no matter how much processing power a government agency commands. For perhaps the first time ever, an individual may, at will, keep any government in the world out of his private business with the ease and simplicity of logging into an email account. If the state knows information it wants is inaccessible, it must change course and negotiate, putting the owner in a new-found position of power.

The state would have you believe governance is merely the imposition of authority: You commit a crime, there is an penalty on the books that will be carried out that you have little control over. If you fail to claim certain income on your taxes, you owe a certain penalty. But it may be more accurate to say governance is a negotiation process by which government and governed come to an agreement according to their relative power positions. The state has imperfect knowledge and limited resources. It is sclerotic and bureaucratic. Given its limitations, it must under some conditions negotiate with those who break its rules — criminals, lawyers, whistleblowers, journalists, hackers, foreign states– in order to maintain legitimacy. As Wall Street bankers know, having leverage against the state can keep you out of prison. That leverage can also keep activists safe from abuses of power.

Once it’s written, encryption doesn’t respond to poorly written laws, corrupt judges, mad dictators, overzealous prosecutors, or racist cops. It is unconcerned with human failings and follows only mathematical laws. This might mean that terrible people will have the same protection, just as criminals and terrorists all use telephones, cars and other available technologies. But encryption programming is a language that can be learned by anyone. Even if every encryption standard in the world were banned or back-doored, any reasonably sophisticated criminal or terrorist organization would write their own.

Encryption is the Future of Freedom

Twenty years in, The Digital Age has personal autonomy perched on a razor’s edge. The way we treat privacy today will have repercussions in the future. An oppressive surveillance society is one possibility. But if we fully realize the potential in the tools we have to overcome centralized power, we can create a world where the vision of individual sovereignty philosophers have been developing since the days of Aristotle comes closer to reality than they had ever dreamed.

Evolving technology forces a real philosophical debate about rights, and should lead us to properly re-evaluate its role in our lives. The NSA has voiced fears about large swaths of the web “going dark” due to uncrackable encryption, providing safe haven to terrorists. Their concern is reasonable. But the alternative is a world where governments expand their power with near-impunity. Most state surveillance agencies would likely consider themselves virtually unstoppable, and the near-total reach of the global surveillance apparatus could change the relationship between man and state in horrifying ways. A well-funded, technologically proficient, opaque security state can do far more damage to liberty than any terrorist.

Governments do not have a right to see every communication on the web. They are endowed with police powers by individuals, who are the only holders of rights, in order to provide for the common good, at least in theory. Natural rights, by definition, exist whether governments recognize them or not, and in some cases must be defended in ways that contradict government interests. Even if the battle against terrorism, drug cartels, hackers, spies or other criminals becomes more difficult, “going dark” remains the right of all human beings.

[Published at the Center for a Stateless Society, Sep. 12, 2015]

Friday, September 11, 2015

Quick political tutorial for college freshmen

1. Your opponents are going to give a pass on hypocrisy from people on their side that they won't give to people on your side. That's because they don't want to blunt their own sword.

2. Not every political action is motivated by money, greed or capitalism. People derive plenty of motivation from hubris, ego, and nationalism as well.

3. Government hasn't failed to address your concerns simply because of "special interests." Democratic government is consensus-based, and is very tough to get sweeping changes through.

4. It's not shocking that people care more about things happening in their own lives than all the numerous tragedies going on in the world. If they did everyone would be a quivering little ball of misery.

5. If you care deeply about issue x and want to advocate for it, you're going to spend most of your life convincing people who are completely apathetic or oblivious that they should find your thing more important than the thousands of other issues out there. You will fail 99.9% of the time. Enjoy!

I swear if you can internalize this, the world will make more sense.

Thursday, September 10, 2015

Great Moments in White Privilege

Was driving through Pennsylvania on the way back from hiking a small part of the Appalachian trail in New Jersey a few days ago when I blew past a cop doing 83 in a 65. Pulled over for the first time in 10 years.

The entire interaction with the cop could be classified as a Great Moment in White Privilege, something I've been more acutely aware of after three or four years of watching mostly African Americans get beaten and murdered by overzealous police on Youtube. The officer was stern but polite and nearly apologetic in her tone, despite the fact that my license address was not current or even for my state of residence. After the obligatory search period she returned with my ID and told me "I tried to cut you a break. I listed the infraction as a 'failure to obey speed limit' rather than a specific speed." I understood this to keep the fine down. It was only $150, so I figured I got off ok. Upon departing she noted "Just be careful. It's a holiday weekend, there's a lot of us out here."

All in all, not bad for a traffic stop. It was remarkable in its unremarkableness. I was acutely aware of my privilege and how it contrasted to the cold sweat that comes over so many African Americans when they see the lights flashing in their rear view.

This naturally made me think of the "white privilege" narrative getting traction around the web for the last few years. Without a doubt, white people are treated differently from black people on balance, even if white people are often grossly mistreated by police as well.

This does not mean, however, that the white privilege narrative is this generation's satyagraha. Every movement for change needs a narrative, because people adapt so well to easily-digestible stories. Every black man murdered by police becomes an accidental martyr for the movement. But as much as I'd like to see the "Black Lives Matter" movement succeed in getting regular, fair treatment from the police, the fact remains that change requires legislation. African Americans just don't have the votes to get major changes through, whether we're talking about at the national or state level, even if they got every single black person to vote. Most Americans just don't care about race-related issues. They need allies among other races, including Caucasians. But the "white privilege" narrative is blunting their momentum every time they use it.

I get it, we're a cynical generation. The "peace and love" narrative of the mid-20th century has taken a back seat to a more egocentric populism along several fronts. After the 2008 crash exposed the rot within the system, the Occupy Wall Street movement demanded more money. The Tea Party arose in response to the election of president Obama and demanded lower taxes. Now Bernie Sanders and Donald Trump have seized on the widespread discontent in both parties. The optimistic socialist platitudes of the 60's are gone. Instead, the prevailing narratives have morphed into something strongly confrontational, us versus them, the rich versus the poor, the government versus the governed. Dualities dominate.

Black Lives Matter exists in this environment. And many of its leaders have made the mistake of creating a "black versus white" narrative. The new political mythos doesn't explicitly blame white people for the problems of African Americans for the most part. But it presents Caucasians as the beneficiaries of a system that is set up to cater to their habits, interests and norms that leaves African Americans out in the cold. There is a lot of truth to it, of course, as there is to many narratives. The problem lies in the effectiveness of the narrative to facilitate political goals.

Black militant movements existed in the early 20th century and grew into formidable organizations like the Black Panthers and the Nation of Islam. Their rhetoric, like that of similar Marxist movements rooted in exploitation theory, was frustrated and hostile to groups perceived as lording power over the powerless. All such movements ended in violence and burned out without having achieved larger goals.

"White Privilege", as a corollary of critical race theory, isn't exactly the militant separatism of the 60's, but something more academic in nature. What remains is the confrontational racial attitude. "White privilege" theorists posit racial differences as categorical and immutable in nature, even as they abhor being lumped into racial categories. As with most political storytelling, consistency is tossed aside; anything that sharpens the knife dominates the narrative.

The theory's own dynamics indicate it's strategic flaws. If people only act in their own categorical racial or class interest and will fight to preserve their privilege, why would bludgeoning them with their own privilege ever change their minds? The fact that at one count 59% of whites recognize their own privilege, but problems are still endemic suggests that merely forcing Caucasians to recognize the advantages their political and social norms have created for them won't accomplish much.

Yes, even Martin Luther King acknowledged a number of facts respecting white privilege, such as the lack of government resources set aside for blacks. This is all history. But that isn't the same thing as punishing allies and potential allies with their own success. "I have a dream" didn't include stuff like "the real problem with America is the straight, cis-gendered white male patriarchy." The movement would have been over quick and no one would have remembered that speech.

I don't know. I could be wrong. Activists may indeed convince white folk that their privilege means they should vote for changes that are allegedly against their racial interests. I think its more likely that change will occur incidentally over many decades. But the fact remains that significant political changes require mass-empathy. How a confrontational attitude is supposed to engender mass empathy is beyond me. When activists are more concerned with being effective than being right, they may see real progress.