As a Cosmotarian, I’m aghast!
By Thoreau
It was brought to my attention in a H&R thread that Roger Pilon at Cato is endorsing immunity for telecoms that broke the law, and renouncing the very idea of requiring warrants to intercept communications:
Obviously, this is no way to conduct the serious business of foreign intelligence. The ever-changing rules — criminalizing transgressions — leave officials playing it safe in a world of risks.
The Senate bill would be an improvement, not least because it provides retroactive liability protection for telecom companies that allegedly assisted the government after 9/11. But the deeper problem is the very idea of congressional micromanagement
The Senate bill would require showing probable cause before targeting even U.S. persons abroad, dramatically increasing the role of the FISA court.
He writes as though judicial scrutiny and legal consequences for serious violations of the law are bad things.
I don’t know anything about Pilon, and I know that it shouldn’t necessarily be shocking that a self-described libertarian might be an apologist for a Republican administration and the corporations complicit in the crimes of the administration. Still, this is pretty sad stuff, especially in 2008. There’s been more than enough time to move past the lies and fear by now.
I’m not going to join with the “We hate all the KochtopusOrangeLineCosmoBeltwayReasonFakeLibertarians” crowd over this, because as a libertarian I’m not good at joining crowds, and that crowd is kind of scary too. Still, WTF?
Oh, and he repeats something I’ve heard from a few other hawks:
The technical impediments to legislating are even greater. We’re long past alligator clips on copper wires. Today, electronic communication is broken into discrete packets that travel along independent routes before being reassembled. As K.A. Taipale, executive director of the Center for Advanced Studies in Science and Technology Policy, has written, “even targeting a specific message from a known sender requires intercepting (i.e., scanning and filtering) the entire communication flow.”
I freely admit to knowing nothing about the technology and how messages are chopped up and sent. Still, I somehow doubt that you actually have to read the entire message. I would guess that the parts of messages have some sort of “header” or “address label” or, I dunno, something identifying them, so that the devices guiding them along can extract the destination info quickly without having to listen to every single part of the conversation or read every single part of the email. Am I right?
Also, while I’m no expert on privacy law, I’d think that there must be some sort of legal precedent for handling that, perhaps rooted in the way law enforcement gets warrants to search mail? I’d assume that if they have a warrant to inspect somebody’s mail they don’t open every letter in the Post Office, they probably look at the front of every envelope and identify the ones addressed to the target of the warrant. Am I right on this one too?
Comment by Mark —
January 29, 2008 @ 12:01 pm
A similar concept is that of the pen register, which allows law enforcement to see who called whom with a much lower standard than that required for a warrant. All that you get with a pen register is the equivalent of a phone bill, but no actual details of the conversation.
There is plenty of legal precedent on the issue of pen registers. I also vaguely remember from law school that there was/is an emerging precedent for law enforcement to only have the capability to look at To/From/Date/Subject Line info with respect to e-mails (in the absence of a full on warrant, of course). IIRC, this precedent was emerging out of the pen register laws and precedent. But I could very well be wrong about all that.
In any event what Pilon is advocating, would allow a full-on wiretap with less burden than required for a mere pen register.
Comment by neil —
January 29, 2008 @ 12:02 pm
The analogy to an envelope is not a perfect one, since an envelope is tamper-proof; it is possible to examine the address without examining the contents. Internet data packets are more like a postcard. It’s possible to pay attention to only the address, but not without also being able to see the payload.
Comment by Russell L. Carter —
January 29, 2008 @ 12:20 pm
Here’s your google strings:
“VoIP over VPN”
“SSH tunneling”
“TLS SSL email”
Any organization (or individual) that isn’t using these for encrypting sensitive communications is doing something similar to leaving all the doors open to the design labs and finance departments once everyone goes home for the weekend. Once you encrypt your streams the only thing left is traffic analysis, and for that there is Tor:
http://itnomad.wordpress.com/2006/09/28/tor-howto-using-tor-through-a-ssh-tunnel/
TOR == The Onion Router
There’s this complete disconnect between the current state of infowar and the moron land that is the 99% of people who don’t know this stuff exists.
Frankly I don’t know why the fascists have not tried to outlaw crypto but it seems like a law of nature that they should try.
Now your post seems to imply that there is some sort of assumption of security or privacy in the absence of NSA interest. There is not. Your packets run through a bunch of corporate networks with dynamic routing that you can’t control and at least some of those corporations are snooping the packet contents. Simple example is Comcast surreptitiously blocking bittorrent streams.
Comment by Happy Jack —
January 29, 2008 @ 12:32 pm
Here is an article that provides an overview of the issue. This issue is why I’ve never been convinced that secret warrants are an answer. Disclaimer: Pilon doesn’t provide the answer either.
Comment by mds —
January 29, 2008 @ 3:44 pm
Even Cato is not immune to the lying authoritarian shitbag in libertarian’s clothing effect, as evidenced by the existence of lying authoritarian shitbag Roger Pilon as their Vice President for Legal Affairs. As a minor corrective, Tim Lee of Cato has a gentle rebuttal. (It immediately follows a Cato-at-liberty post about last night’s SOTU that was typed while smooching President Bush’s ass, and immediately precedes another post touting yet more dumbfuckery about the Laffer curve, but I hear that Tim Lee and his janitor remain principled libertarians, so we’re apparently still supposed to take Cato seriously.)
A juicier libertarian smackdown, which calls Pilon out for being a mendacious anti-Constitutional fuckweasel, is provided by my man Sanchez.
Comment by Thoreau —
January 29, 2008 @ 4:19 pm
mds,
Before you get too harsh on Cato, IIRC Julian Sanchez is a Cato alum.
I don’t have any real loyalty to Cato, but my general impression is that they’ve been among the better libertarian organizations.
If this were, say, a health care analyst opining in favor of warrantless wiretaps I’d figure, well, the guy was hired for subject expertise, and it’s no surprise if he’s a big douchebag outside his area. But when a person hired for alleged Constitutional expertise starts arguing against warrants on the grounds that, well, he’s scared shitless, that’s disappointing.
Comment by Joshua Holmes —
January 29, 2008 @ 4:28 pm
A libertarian weeping about the constraints on executive power in 2008 is bizarre beyond belief. Where has this shithead been since, oh I dunno, the Nixon Administration?
Comment by Barry —
January 29, 2008 @ 8:35 pm
“Where has this shithead been since, oh I dunno, the Nixon Administration?”
That guy probably gets misty-eyed at
fascistFederalist Society meetings about how poor ol’ Richie Nixie was railroaded, and weeps into his drink about how presidents are prisoners of the law – and who’s going to liberate them – Huh! Tellmewho!! (slobbers and staggers to the door).Comment by Leonard —
January 29, 2008 @ 8:56 pm
Here’s the thing about libertarianism: you hold the line, and nobody cares or notices. Nobody cares about your screeds saying the Constitution means what it says, because there’s no political market for abolishing power. But if you depart from the libertarian reservation… if you sell out… if you happen to be 95% sane but 5% bedwetter… you get access to the Wall Street Feckin’ Journal. The echo chamber echos only for statist expressions. But when you do that, you poison the well for the rest of us, since your most salient sally in your life happens to be on that one topic where you just ain’t libertarian. Thanks, Roger.
That said, Cato is still by and large a great libertarian institute and a great libertarian resource. Even Pilon’s work is largely good. But damn, it’s hard out here for a libertarian pimp.
Comment by Steve —
January 29, 2008 @ 9:03 pm
Frankly I don’t know why the fascists have not tried to outlaw crypto but it seems like a law of nature that they should try.
You know Tor was incubated and hatched at the Naval Research Lab, right?
Comment by Jim Henley —
January 29, 2008 @ 10:17 pm
I didn’t play the Laffer Curve video. When I noticed that: 1) the axes had no units on them; and 2) the downward-sloping part of the curve was much longer than the upslope, I figured I didn’t need to.
Comment by Russell L. Carter —
January 30, 2008 @ 12:32 am
None of you followed the pointers. In the future you’re going to learn more about this.
Comment by Doctor Memory —
January 30, 2008 @ 2:57 am
Frankly I don’t know why the fascists have not tried to outlaw crypto but it seems like a law of nature that they should try.
They tried. Holy god did they try. Looking back, it’s stunning to me that they failed: I don’t think anyone on either side quite realized the stakes we were playing for.
If we survive this ugly little period and still have something recognizable as a republic at the end of it, you can nominate Phil Zimmerman for sainthood.