
Arguments Supporting Warrantless Surveillance Wither When Exposed to Sunlight - DiabloD3
https://www.eff.org/deeplinks/2016/03/once-again-arguments-supporting-warrantless-surveillance-shrivel-when-exposed
======
natch
Reading Tim Cook's full interview with Time
([https://news.ycombinator.com/item?id=11318905](https://news.ycombinator.com/item?id=11318905))
I wonder if anyone at the DOJ is even having an honest discussion about the
potential damage they would be doing to public safety if they won in court in
the San Bernardino case.

Which, granted, is a different case from what the EFF is talking about here
but the same question applies: Is the DOJ even considering all the
implications of what they do, and how they may be making us less safe by
things like requiring back doors and (separately) enabling man in the middle
scenarios?

~~~
rgbrenner
The DOJ/FBI does not care about the damage. If they win, they get the
benefits.. but all of the costs--weakened security, lost money, damage to
companies, etc--are ALL external.

Don't kid yourself, when all of these things happen, the FBI will not stand up
and criticize itself... it'll blame the company that made/maintained the
backdoor.

When your company (or the company you work for) is compromised because of the
backdoor the government mandated, it'll be your company's name on the notice
being sent to your customers saying you lost their data; your company in court
for the damage caused; your company that will foot the bill.

~~~
jessaustin
Not only will they receive the direct benefits, but FBI will actually benefit
from everyone else's suffering as well. Just like bored firefighters starting
fires (a real thing that has happened many times in many places), they're
eager to "help" those individuals and businesses who will lose lots of money
after they've destroyed security online.

~~~
rgbrenner
Yes, absolutely.

Also consider that criminal organizations that profit from stolen data will
become more active (more data lost > more data to sell > more profits > more
activity toward compromising data).. which means more organizations for the
FBI to investigate.

And there's the potential that victim companies could face prosecution also..
for example, if a company had a minor violation of HIPAA (et al) and was
compromised due to a backdoor.. instead of the damage being minor and the
company fixing the problem without any patient data being compromised..
instead it becomes a significant incident with real losses of patient data..
potentially opening the company up to prosecution for violation of HIPAA (or
other laws).

------
citizensixteen
>The government’s ponderous declassification process released this letter far
too late to have much more than historical impact. But, in the end, the
secrecy clouds parted, and the pattern is clear; we’re back in a place we’ve
been time and again. One-sided legal arguments lead to one-sided legal
interpretations. The government’s secret process let it get away with drafting
an entire 22-page letter that did not even cite let alone grapple with these
issues.

If there is one thing history teaches us, it is this pattern that repeats
itself over and over. For example look at the Stasi of East Germany. The Stasi
did everything it did to protect the state and the 'people'. When we look at
these totalitarian governments of past, we are shocked and can not believe
people allowed it to go on. It is much harder to see these patterns in the
present context of our own culture and even harder to do something when things
go wrong.

Next time you are in Berlin visit the old Stasi headquarters.

[http://www.stasimuseum.de/en/enindex.htm](http://www.stasimuseum.de/en/enindex.htm)

------
themartorana
Secrecy is key. In any conceivable circumstance, where one branch of
government operates in total secrecy from the other two, the spirit, at least,
if not (but most likely) the letter of the Constitution and its explicit power
checks have been violated. When one starts writing and interpreting its own
laws in secret from the other two, well... I don't see how it amounts to
anything less than a (non-violent?) coup, where one branch has gone completely
rogue.

But as time and again, no heads will roll, no one will go to prison for making
the Free World significantly less free. And I'm pretty sure domestic
surveillance now is significantly more advanced than it was back when this
letter was written.

Is there anything left to hold on to?

Edit: I should stop reading. I'm starting to believe that ignorance is indeed
bliss.

~~~
AnthonyMouse
These things have clear patterns. King George abuses his subjects so they kick
him out and adopt a constitution prohibiting the things he did. From time to
time, usually in response to some kind of hyped up threat, they crop back up.
Hoover's FBI, The House Un-American Activities Committee, Nixon and now the
response to 9/11\. They go too far and eventually get shut down, but often not
before a decade or more. Then we try to pass a law to prevent what they did
from happening again, hopefully _this time_ learning from our mistakes and
making the law against it airtight.

Our major mistake _last time_ seems to have been allowing the process to be
secret.

~~~
matt_wulfeck
> Then we try to pass a law to prevent what they did from happening again,
> hopefully this time learning from our mistakes and making the law against it
> airtight.

We have evidence in countries like North Korea that government can keep total
power and control against their population for a very long time.

I know you don't intend it to be, but your response seems kind of like a
"things will sort themselves out so let's not worry ourselves". It's this sort
of apathetic response to wrongdoing that is the precursor to many evils in
history.

~~~
kabdib
The oppression in NK is one of the things that the second amendment is for. As
it stands, the people of NK have no options.

Arms in the hands of citizens is not a guarantee against abject oppression,
but it's a deterrent. Banning general ownership of arms is a step that a
despot _must_ take.

Naturally, a lot of people think the insurance is not worth the risk. And at
the level of national politics it can be hard to separate the honestly
concerned, the secretly malicious, and the useful idiots.

\----

With crypto, it's pretty easy. The folks who want to ban crypto have an agenda
to spy and control, or they are co-opted. Well, there are also a few useful
idiots, too . . . .

------
jbapple
The author of the memo, John Yoo, was also famously pro-torture, including the
most shocking answer on the treatment of suspected terrorists that I've heard
from any part of the political establishment (so I'm excluding the large
numbers of Americans who think, for instance, that we should just make Islam
illegal):

    
    
        Q: If the President deems that he's got to torture somebody,
           including by crushing the testicles of the person's child, 
           there is no law that can stop him?
        
        A (John Yoo): No treaty.
        
        Q: Also no law by Congress—that is what you wrote in the August
           2002 memo
        
        A: I think it depends on why the President thinks he needs to do that.

~~~
joshka
I'm anti-torture personally, but I'm not sure that the quotes you've put here
portray a bias one way or another so much as a legal opinion (erroneous or
otherwise). What am I missing?

~~~
jbapple
> I'm not sure that the quotes you've put here portray a bias one way or
> another so much as a legal opinion (erroneous or otherwise)

John Yoo's legal opinions were used by the Bush administration to justify a
system of torture up to and including permanent injury, sexual assault, and
death. If he had issued these opinions in a vacuum, I would agree with you.
Instead, he sought opportunities to provide legal cover for systemic human
rights abuses.

The consequences of his actions seem predictable, and in my view that makes
him partially morally responsible for them and it is fair to call him an
advocate of them, in deed and word.

You can read about it in the CIA torture report and the DOD torture report:

[https://www.amnestyusa.org/pdfs/sscistudy1.pdf](https://www.amnestyusa.org/pdfs/sscistudy1.pdf)

[http://www.armed-
services.senate.gov/imo/media/doc/Detainee-...](http://www.armed-
services.senate.gov/imo/media/doc/Detainee-Report-Final_April-22-2009.pdf)

There are a multitude of US laws against torture, but Yoo and his intellectual
cohort seem to think that the "Unitary Executive" is not bound by most laws,
as long as that executive proclaims the actions are part of a war (which does
not need to be declared by Congress, under Unitary Executive theory that
rejects the War Powers Act).

Finally, I posted this snippet to point out that John Yoo has a history of
dismissing limits to executive power to an extreme degree. Even if his
theories are viewed outside of the moral consequences of his actions, I think
it's important to know that his view on surveillance goes WAY, WAY beyond just
warrantlessly listening to the phone calls of innocent people, all the way to,
according to him, crushing the testicles of innocent people. I think this
helps frame the discussion of the history of the Bush administration's abuse
of civil liberties, though you are welcome to disagree.

~~~
joshka
Thanks :)

------
rayiner
I kind of agree with the overall conclusion, but the EFF is overstating their
_Youngstown Steel_ argument. As a preliminary issue, it's important to note
that we're talking about spying that might be outside FISA but is inside the
4th amendment.

Spying is a routine military activity that is intrinsic to foreign relations,
an area where the Constitution gives the President unique powers. Seizing
steel mills, on the other hand, is a major intrusion into domestic activity
within Congress's usual domain. It's not so clear why Youngstown would direct
the conclusion here.

More generally, there are a _lot_ of people who believe that the framers
intended to give the President great powers when it came to foreign relations
and the exercise of military power, and didn't intend for Congress to be able
to check those powers. One of the motivating rationales of having a unitary
executive was so that the government could respond to internal and external
threats decisively without waiting for hundreds of senators and congressman to
get on board. It was set up that way to address the concerns of people who
thought that a democracy would be weak and indecisive in the face of foreign
threat.

~~~
Zigurd
> _there are a lot of people who believe that the framers intended to give the
> President great powers when it came to foreign relations and the exercise of
> military power, and didn 't intend for Congress to be able to check those
> powers_

Foreign relations, yes. The exercise of military power, no. Especially not
creating a permanent wartime condition, secret courts, etc. where military
power, including spying, is exercised within the US and against the people.

~~~
tptacek
Your comment is unresponsive to Rayiner's in two ways.

First, it has simply never been the case, since the time of the Presidencies
of the founders themselves, that espionage was limited to times of war, or for
that matter to countries with whom we had declared war. The President has
always been able to spy on other countries.

Second, Rayiner himself concedes the distinction between spying on US citizens
(an activity restricted by the Fourth Amendment) and spying on foreigners
abroad (an activity _not_ restricted by the Fourth Amendment).

