Wednesday 344

Privacy law

Filed under: Politics, Society — Tags: , , , — zundel @ pm

FISA op-eds from a parallel universe” by Julian Sanchez from “Law & Disorder” in Ars Technica 2008-12-09

The idea of privacy can help constrain governments. But never mistake the idea for a reality.

With increasingly easy surveillance, governments will conduct more surveillance. Violations of privacy have more tolerance than violations of security.

Governments have and always will violate privacy. The smooth functioning of law cannot depend on privacy. Privacy rarely remains intact. Law usually applies to actions at least one party wishes remained unobserved. Rather, law needs provisions to function despite breaches of privacy. We need increasingly sophisticated legal procedures and remedies to discover and deal with surveillance.

We should not abandon the old and inadequate FISA, but law and society cannot constrain new and expanding problems with old solutions.

Current practice requires some governments to get due authorization before conducting surveillance. Where inconvenient, governments may ignore the requirements for authorization. Current practice discourages improper surveillance mostly by making inadmissible any information gained that way. That fails as deterrent and remedy.

We should keep deterrents such as ‘due process’, but not make the mistake of thinking we can depend on them. Nor can we expand them sufficiently to depend on them.

Governments will increasingly conduct surveillance. Governments will expand authorizations for surveillance. Governments will expand surveillance allowed without authorization. Or governments will conduct surveillance without getting authorization.

With increased perception of threats needing surveillance and increased ability to spy, governments will respond with increased surveillance. Simplistic divisions into authorized and unauthorized surveillance will merely push governments into unregulated and unauthorized surveillance. Refining the categories of permissible and impermissible surveillance will not suffice. Broad, sophisticated, and expansive regulation that enfolds most possible surveillance by government will serve best to constrain.

How to get such sophisticated regulation in the face of oppositional attitudes that think they hold the line remains unclear. The unfortunate tradition of commingling law and government gets in the way of clear thinking about constraining surveillance. This becomes a negotiation, acknowledged or not, between the governed and the government for the purpose of constraining the very real possibility of abuse of government power. The governed lack sufficient power to create, police, or enforce a ban on surveillance. Power must get negotiated into constraint.

In the US theory of three branch government (practice differs considerably from theory) thinking any one branch the advocate or protector of the governed constitutes a grave mistake. (Besides, an official protector gets all the more easily subverted by a government.) The historical moment demonstrates the autocratic potential of the executive branch. But legislators and judges have potential and demonstrated autocracy. With increasing surveillance, proper legal conduct requires considerably more than depending on the goodwill or good conduct of any one branch of government. The governed can never adequately inspect surveillance. So the government must get negotiated into constraining itself by scrutinizing itself. And the governed must make do with influencing and keeping an eye on the process.

The new FISA compromise: it’s worse than you think” by Timothy B Lee in Ars Technica 2008-07-07

civil liberties groups emphasize that without judicial oversight, there is no way to know if the government is respecting any limits that Congress establishes.

Dependence on traditional oversight of one branch of government by another lacks sufficient robustness to constrain the increase in surveillance. Surveillance, a function of the executive, needs scrutiny from the executive, as well as investigation from the legislature, and oversight and trial from the judiciary.

We need discussion of appropriate procedures for discovery and remedy rather than relying on the tired and inadequate idea of ‘rights’ or the simplistic and insufficient method of checks-and-balances.

Abuses have occurred. The problem will not go away. As with FISA, different standards for different subjects of surveillance has led to and invites abuses. And leads to the false perception of protection.

Recent attempts at constraint have not worked.

The Journal vs the Fourth Amendment” by Timothy B Lee on Cato at Liberty blog 2008-12-08

Wiretapping’s true danger” by Julian Sanchez in the Los Angeles Times 2008-03-16


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