Maybe I'm an idealist, but I believe freedom also comes with responsibility and accountability.
The NSA Act protects those working on the shadow from every being held accountable for potentially illegal acts, therefore the whole nation is slowly losing its freedom.
But how do you hold them accountable? The traditional remedies in Anglo-American courts, before qualified immunity and similar doctrines metastasized into impenetrable shields protecting government officers, come from tort law. But torts require a showing of damages. What are your damages from the NSA collecting all your metadata, or even from recording a conversation? Most people in the U.S. consent to letting companies like Microsoft or Google not only track all their online contacts, but literally analyze their e-mail for tracking and targeting purposes, and do it in returns for services that have an effective market value (to the user) of nearly $0.
IIRC, Scalia once said that he would ditch the fruit of the poison tree doctrine to return to old Common Law tort remedies. At Common Law the remedy for an illegal search was typically a claim of trespass, for which the remedy was often a token sum, such as $1, imposed on the officer, not much of an incentive to abstain from illegal searches, but right in line with the effective economic losses of property trespass or invasion of your digital privacy.
So when people talk about "accountability" in the realm of privacy law they seem to be referring to something beyond simple compensation for immediate harms; they seem to want to impose some sort of penalty. But what kind of penalty is appropriate to impose on some government bureaucrat just "doing his job"; and when entire departments of bureaucrats might need to be penalized en masse? Maybe we should penalize the supervisors, but at some point those supervisors are political appointees doing the bidding of elected politicians, who are supposed to be accountable through elections.
We already have doctrines like fruit of the poison tree that are crafted to disincentive illegal government prosecutions. An illegitimate guilty verdict is at least a quantifiable loss of liberty. But if there are no economic damages, no reputational damages, no illegitimate prosecutions, nor similar quantifiable consequences, I'm not sure exactly what we should be doing except electing into office politicians who will ensure our existing laws are honestly applied, and who will rid the statute books of unnecessary exceptions to the letter of the law.
> But what kind of penalty is appropriate to impose on some government bureaucrat just "doing his job"
Public money, public code. We need to generate more Commons (like Free Open Source Software). Stop using government funds to give to private corporations for black-box solutions.
The same type of penalty that would be appropriate to impose upon anyone else just "doing their job".
- A security worker being told to throw someone of color out of the store because management thinks "those people" cause problems.
- A mob enforcer breaking someone's kneecap because they didn't pay their "bill".
Somewhat on end of extreme, but... if your job has you doing things that are wrong, then you are doing wrong. The fact that someone else said to do it, or said that it's ok, doesn't make it ok.
> At Common Law the remedy for an illegal search was typically a claim of trespass, for which the remedy was often a token sum, such as $1, imposed on the officer, not much of a disincentive to avoid illegal searches
Presumably there was some sort of punishment for ordinary citizens trespassing, and it was much higher than one dollar. So this seems more like a common law way of formalizing state corruption rather than an actual equitable outcome.
Damages aren't limited to purely financial. That's a modern myth to disempower individuals in favor of commercial entities. Take for example, insurance compensation where if you simply pay a company to make something right, they'll come up with copious line items to justify customary costs. But if you DIY to have control over the end result, you'll end up getting screwed with your time being considered "free" rather than compensated at your hourly rate.
Loss of privacy is itself a damage, in the same way loss of limb is with no commensurate loss in earnings. You have a good point that someone who willingly hands over their information to Surveillance Valley has much less of a claim of harm. But surely if I take costly steps to preserve my privacy (eg spending several hours to setup a microg phone), then those steps demonstrate that privacy has value to me. That's to say nothing of the long tail of damages from surveillance databases being leaked to the wider public, or resulting in wrongful arrest or prosecution (both also not generally compensated these days, or per common law).
To me, accountability should look like criminal sanctions for government employees. Just as it's illegal for me to steal from a store, it's illegal for the government to violate my rights - the two should be similarly criminalized. There's leeway for actions carried out with a good faith belief of legality, but that defense vanishes the moment they form conspiracies to insulate themselves with secrecy rather than remaining open and directly accountable to the People.
Being surveilled is uncomfortable but making a formal legal argument against it in the US context is tricky. The US does too much social change through court decisions, anyway; this would be far better as an explicitly political argument.
>What are your damages from the NSA collecting all your metadata, or even from recording a conversation?
Well, here we have the argument of the 'little man'.
If I am wahern, the answer to your question is: probably not much.
If I am Elon Musk, the answer may surprise you. The damages from retaliation by members of the elite NSA club, and their military-industrial cronies, could be HUGE.
Are we willing to live in that sort of society?
This is not a good basis of support for State Secrecy - which has, incidentally, ALWAYS been a corrupting influence in every single society which makes it a keystone policy of conduct.
Secrets are corruption. States, which do not exist unless they are continually perpetuated as open truths, become utterly corrupt the moment they start keeping secrets - while becoming resolute and strong when secrecy is dissuaded.
>qualified immunity and similar doctrines
If what you are doing requires qualified immunity or similar, it is a reactive, failing doctrine, not a productive one. The problem is obviously further upstream, perhaps in the cause for secrecy in the first place.
In the absolute best case scenario, the NSA has been created to ensure US hegemony, also known as destroy the freedoms of anyoune outside America. In reality, it was probably created to ensure the current hegemony is largely unchanged, meaning it will trample on the freedom of US citizens too.
The entire organization needs to go. The article written by an intelligence agency insider just wants to try and ensure only foreign rights are violated, but that should not be acceptable either.
Federal Goverment (National goverment)
+ Taxation
+ Welfare
+ Police that enforce laws and "rules" by the state
Yet to see a single nations goverment held accountable for the corruption, illegal activity and going against the interest of the ethnic native citizens of any nation on the planet
Police + arm forces have a choice
Stand for FREEDOM and Rights of citizens
or defend the state system
Recently a local data center provider in Central Texas was found to be a major nexus for Child Sexual Abuse (CSA) material. Data Foundry, formerly known as Texas.net.
It also now appears to have been a major collection node, codenamed WAXTITAN, for the NSA's BOUNDLESS INFORMANT program.
They had been accused back as far as 2013 by a former sysadmin for hosting CSA, and as recently as last year the OAG in New Mexico repeatedly asked them to do something about the content [1].
This data center provider was recently outted as part of the #BlueLeaks breach, because all 78 DHS Fusion Center sites were hosted there.
Several engineers in Austin, Texas, including myself, have been interviewed by the FBI. It is clear it was not a covert entrapment program or anything like that.
This all brings us to the question of, if the NSA can work with groups and on servers distributing enormous amounts of videos of child sex, they really can do anything they want can't they?
> This data center provider was recently outted as part of the #BlueLeaks breach, because all 78 DHS Fusion Center sites were hosted there.
What's that?
I'm a little lost. Could you spell it out for someone who has no familiarity with any of these operations? (I.e., What exactly was the NSA doing, and what was its relationship to Data Foundry?)
> Recently a local data center provider in Central Texas was found to be a major nexus for Child Sexual Abuse (CSA) material. Data Foundry, formerly known as Texas.net.
There’s CP on usenet? shocking
> It also now appears to have been a major collection node, codenamed WAXTITAN, for the NSA's BOUNDLESS INFORMANT program
You have no idea if this is true, you’re just speculating based on the appearance of a single Data Foundry IP address in a leaked NSA slide which you don’t understand.
You're arguing the NSA is aiding Child Sex Abuse because they had a machine colocated in the same datacenter as a usenet provider?
I must have misunderstood something. I'm not a fan of the NSA but that sounds ridiculous. Even if it were true (which is likely) it has nothing to do with them
It tells you something when FBI and NSA spied on a presidential campaign, the guy they spied on _won_, and absolutely nobody was charged with anything, let alone convicted. This is some Watergate++ grade shit, and there are no repercussions at all. Imagine what they could do to you and I.
The FBI instantiated investigations against several individuals in the Trump campaign in 2016-2017 due to suspected ties between them and the Russian government. [0] Of those investigated, all but one were convicted - not of collusion, but for lying to investigators and obstruction among other things.
However I think insinuating a lack of oversight or ulterior political motives is wrong. A counter-investigation by Trump's DoJ found that the initial motives for the investigation were solid, but did note a number of errors made in the process. In fact, one FBI lawyer who lied during the investigation has been charged. [1]
It kinda does, though. The "Trump's DOJ" investigation into these matters is not over. In fact it's barely entering its active phase, with declassifications etc. Charges won't be pressed until after election at this point, but there certainly will be charges. Yet if you only watch CNN, you could be misled into believing that the Obama FBI was beyond reproach and it's all over by now.
> and absolutely nobody was charged with anything, let alone convicted
Actually a lot has happened with this story since 2016, it looks like 34 different people and 3 companies were charged and either plead guilty or were convicted.
I am curious though, what is the news source that lead you to believe otherwise?
I think you misunderstood what I said. That spying was ordered based on fake "intelligence" fabricated by foreign actors (and then further distorted by deep state actors such as Strzok) and paid for by the Clinton campaign. My argument is that everyone involved in that should be in prison. Strzok, Page, and Brennan at a minimum.
Explicitly authorising law enforcement and spy agencies to break the law, and limiting redress against them. It appears to be their response to various ongoing accusations of illegality, such as the "Soldier F" case from 1972 that (incredibly) is still unresolved.
This was, in effect, always the case in Northern Ireland. The overlap between the UVF, the RUC, Special Branch, and the armed forces. https://en.wikipedia.org/wiki/Miami_Showband_killings and Pat Finucane, for example.
At the end of the war in the late 90s the Blair government issued effectively blanket pardons for a lot of crime from both sides.
The ability of "rule of law" to constrain the arbitrary actions of state security has always been a problem, in every country, and is fatally compromised in the UK by colonialism (use of military as police in Northern Ireland, and before that various crimes of Empire that we're not supposed to know about) and racism (fundamentally a large section of the public wants it to be possible to arbitrarily deport immigrants without due process of law, and is prepared to burn down as much rule of law as necessary to achieve that)
I might be reading between the lines, but presumably there was a payment of some sort from the external contractor developing TRAILBLAZER to Hayden? Otherwise why was he so keen to spend so much on so little?
Isn't this the sort of thing that the GAO deals with directly? It appears to be a clear-cut case of fraud, so why isn't this being dealt with through the usual channels for that?
I don't think it was that clear-cut. Having had experience with low quality home-grown software, Hayden was a proponent of buying rather than building. Rather than struggle to hire good developers on government salaries, he took advantage of contracting to bring in well paid people to do the job well. Only, guess what...sometimes you don't manage to get what you pay for.
I’ve seen it my self in IT. The older in-house team tries to recreate every feature 1:1 based on the old system. The end result is a newish UI in front of all the crap from the old system.
“The very word “secrecy” is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings”
Diverting discussion of criminal activity into nebulous torts is a very convenient direction for those who would have been indicted. The remedy for violations would of course fall on the taxpayers, not the perpetrators.
We need an independent prosecutor, cleared for access to secrets, and free to pursue indictments wherever the evidence leads.
If the law does not prescribe a penalty, that leaves the prosecutor and judge a free hand to determine one.
40 comments
[ 5.2 ms ] story [ 248 ms ] threadThe NSA Act protects those working on the shadow from every being held accountable for potentially illegal acts, therefore the whole nation is slowly losing its freedom.
...to be abused by the Corporatocracy
As they sing in the Expanse's asteroid Belt:
IIRC, Scalia once said that he would ditch the fruit of the poison tree doctrine to return to old Common Law tort remedies. At Common Law the remedy for an illegal search was typically a claim of trespass, for which the remedy was often a token sum, such as $1, imposed on the officer, not much of an incentive to abstain from illegal searches, but right in line with the effective economic losses of property trespass or invasion of your digital privacy.
So when people talk about "accountability" in the realm of privacy law they seem to be referring to something beyond simple compensation for immediate harms; they seem to want to impose some sort of penalty. But what kind of penalty is appropriate to impose on some government bureaucrat just "doing his job"; and when entire departments of bureaucrats might need to be penalized en masse? Maybe we should penalize the supervisors, but at some point those supervisors are political appointees doing the bidding of elected politicians, who are supposed to be accountable through elections.
We already have doctrines like fruit of the poison tree that are crafted to disincentive illegal government prosecutions. An illegitimate guilty verdict is at least a quantifiable loss of liberty. But if there are no economic damages, no reputational damages, no illegitimate prosecutions, nor similar quantifiable consequences, I'm not sure exactly what we should be doing except electing into office politicians who will ensure our existing laws are honestly applied, and who will rid the statute books of unnecessary exceptions to the letter of the law.
Public money, public code. We need to generate more Commons (like Free Open Source Software). Stop using government funds to give to private corporations for black-box solutions.
- A security worker being told to throw someone of color out of the store because management thinks "those people" cause problems.
- A mob enforcer breaking someone's kneecap because they didn't pay their "bill".
Somewhat on end of extreme, but... if your job has you doing things that are wrong, then you are doing wrong. The fact that someone else said to do it, or said that it's ok, doesn't make it ok.
Presumably there was some sort of punishment for ordinary citizens trespassing, and it was much higher than one dollar. So this seems more like a common law way of formalizing state corruption rather than an actual equitable outcome.
Damages aren't limited to purely financial. That's a modern myth to disempower individuals in favor of commercial entities. Take for example, insurance compensation where if you simply pay a company to make something right, they'll come up with copious line items to justify customary costs. But if you DIY to have control over the end result, you'll end up getting screwed with your time being considered "free" rather than compensated at your hourly rate.
Loss of privacy is itself a damage, in the same way loss of limb is with no commensurate loss in earnings. You have a good point that someone who willingly hands over their information to Surveillance Valley has much less of a claim of harm. But surely if I take costly steps to preserve my privacy (eg spending several hours to setup a microg phone), then those steps demonstrate that privacy has value to me. That's to say nothing of the long tail of damages from surveillance databases being leaked to the wider public, or resulting in wrongful arrest or prosecution (both also not generally compensated these days, or per common law).
To me, accountability should look like criminal sanctions for government employees. Just as it's illegal for me to steal from a store, it's illegal for the government to violate my rights - the two should be similarly criminalized. There's leeway for actions carried out with a good faith belief of legality, but that defense vanishes the moment they form conspiracies to insulate themselves with secrecy rather than remaining open and directly accountable to the People.
Not really, tort law is very old, and the idea of "actual damages" is pretty well formed. "Reputational damages" exists in libel.
Privacy in English and Scottish common law is .. developing. e.g. https://www.pinsentmasons.com/out-law/news/common-law-right-... / https://www.supremecourt.uk/docs/speech_100825.pdf (the huge transformative effect of the human rights act, which does explicitly contain a right to privacy)
Being surveilled is uncomfortable but making a formal legal argument against it in the US context is tricky. The US does too much social change through court decisions, anyway; this would be far better as an explicitly political argument.
Well, here we have the argument of the 'little man'.
If I am wahern, the answer to your question is: probably not much.
If I am Elon Musk, the answer may surprise you. The damages from retaliation by members of the elite NSA club, and their military-industrial cronies, could be HUGE.
Are we willing to live in that sort of society?
This is not a good basis of support for State Secrecy - which has, incidentally, ALWAYS been a corrupting influence in every single society which makes it a keystone policy of conduct.
Secrets are corruption. States, which do not exist unless they are continually perpetuated as open truths, become utterly corrupt the moment they start keeping secrets - while becoming resolute and strong when secrecy is dissuaded.
>qualified immunity and similar doctrines
If what you are doing requires qualified immunity or similar, it is a reactive, failing doctrine, not a productive one. The problem is obviously further upstream, perhaps in the cause for secrecy in the first place.
NSA need to keep secrets, why? Fix that why.
The entire organization needs to go. The article written by an intelligence agency insider just wants to try and ensure only foreign rights are violated, but that should not be acceptable either.
> it will trample on the freedom of US citizens too.
Abolish the (secret) police.
Federal Goverment (National goverment) + Taxation + Welfare + Police that enforce laws and "rules" by the state
Yet to see a single nations goverment held accountable for the corruption, illegal activity and going against the interest of the ethnic native citizens of any nation on the planet
Police + arm forces have a choice
Stand for FREEDOM and Rights of citizens or defend the state system
It also now appears to have been a major collection node, codenamed WAXTITAN, for the NSA's BOUNDLESS INFORMANT program.
They had been accused back as far as 2013 by a former sysadmin for hosting CSA, and as recently as last year the OAG in New Mexico repeatedly asked them to do something about the content [1].
This data center provider was recently outted as part of the #BlueLeaks breach, because all 78 DHS Fusion Center sites were hosted there.
Several engineers in Austin, Texas, including myself, have been interviewed by the FBI. It is clear it was not a covert entrapment program or anything like that.
This all brings us to the question of, if the NSA can work with groups and on servers distributing enormous amounts of videos of child sex, they really can do anything they want can't they?
[1] - https://www.abolishapd.org/post/apd-nmoag-nsa
What's that?
I'm a little lost. Could you spell it out for someone who has no familiarity with any of these operations? (I.e., What exactly was the NSA doing, and what was its relationship to Data Foundry?)
Being familiar with the original #BlueLeaks story is also helpful to understand [2].
[1] - https://cryptome.org/2020/09/dhs-fusion-center.htm
[2] - https://krebsonsecurity.com/2020/06/blueleaks-exposes-files-...
There’s CP on usenet? shocking
> It also now appears to have been a major collection node, codenamed WAXTITAN, for the NSA's BOUNDLESS INFORMANT program
You have no idea if this is true, you’re just speculating based on the appearance of a single Data Foundry IP address in a leaked NSA slide which you don’t understand.
I must have misunderstood something. I'm not a fan of the NSA but that sounds ridiculous. Even if it were true (which is likely) it has nothing to do with them
However I think insinuating a lack of oversight or ulterior political motives is wrong. A counter-investigation by Trump's DoJ found that the initial motives for the investigation were solid, but did note a number of errors made in the process. In fact, one FBI lawyer who lied during the investigation has been charged. [1]
[0] https://en.wikipedia.org/wiki/Crossfire_Hurricane_(FBI_inves...
[1] https://www.cnn.com/2019/12/18/politics/horowitz-hearing-rus...
Actually a lot has happened with this story since 2016, it looks like 34 different people and 3 companies were charged and either plead guilty or were convicted.
I am curious though, what is the news source that lead you to believe otherwise?
The reason why you don't know about any of this is because it doesn't get covered in left-wing media: https://web.ground.news/article/b9a0e58b-3c08-4623-9b93-4786.... At all.
Explicitly authorising law enforcement and spy agencies to break the law, and limiting redress against them. It appears to be their response to various ongoing accusations of illegality, such as the "Soldier F" case from 1972 that (incredibly) is still unresolved.
At the end of the war in the late 90s the Blair government issued effectively blanket pardons for a lot of crime from both sides.
That's effectively ending the rule of law in the United Kingdom. There's not even any pretense anymore.
It's interesting but - given recent events - not surprising, that the country which invented the term "rule of law" would now turn their back on it.
Isn't this the sort of thing that the GAO deals with directly? It appears to be a clear-cut case of fraud, so why isn't this being dealt with through the usual channels for that?
Some truths are timeless.
We need an independent prosecutor, cleared for access to secrets, and free to pursue indictments wherever the evidence leads.
If the law does not prescribe a penalty, that leaves the prosecutor and judge a free hand to determine one.