24 January 2006

Secrets on the Wind…

Subject: Secrets on the Wind…
From: Demosthenes2
Date: Jan 24 2006 12:26PM

If you reveal your secrets to the wind you should not blame the wind for revealing them to the trees.
—Kahlil Gibran

Google's decision to fight the Bush administration's subpoena insisting that the company turn over its database information comes at the same time that Rove and the administration have decided to go on the offensive with the domestic wire tapping controversy, under the debatable notion that domestic spying is a winner for the administration and something the nation will ultimately approve of. I'm not convinced.

In the Google case, the government is seeking to prove something that should be blatantly obvious to every person who even casually uses a computer—there's a lot of porn out there. No kidding. What this shares in common with the government's defense of domestic wire tapping is an overzealous belief that the government is entitled to know virtually everything about the activities of adults in full control of their reflecting faculties for whom there is no probable cause to suspect of wrong doing.

Probable cause is a slippery judicial construct generally based upon whether the enforcement officer had reasonable grounds to believe the law was being violated, and the facts should be laid out such that "a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant."

In the wire tapping case, the government seeks the ability to act as it wills without procuring the required FISA warrants while simultaneously maintaining that this is both necessary and legal despite the explicitly required FISA warrants.

What's troubling about this is the disconnect that is required for the government to maintain in the domestic wire tapping case that they are not using a "driftnet" approach, but rather are 'targeted and focused' while at the same time in their anti-pornography endeavors endorsing precisely the sort of driftnet approach that they disavow! There's more than a little cause for concern about how the government views essential privacy rights when they're willing to argue both sides of an opposing issue simultaneously on matters that directly impact every American.

I find the excuse that expediency requires this to be weak and implausible.
Hayden [www.washingtonpost.com] claims that the government, had it this authority prior to 9-11, could have used such information to unearth the terrorist plot. Indeed; they also could have paid attention to the FBI, CIA and NSA information about two of the hijackers or the meme titled "Bin Laden determined to strike in US", but they didn't.

The problem is not access of information—it's the focus on it. Recently in New York, as happens every few years, another scandalous failure of child protective services was exposed when a young girl was brutally murdered by her parents. The usual call for increased sentencing is the result, with no understanding or thought given to the fact that the real problem isn't the sentence (25 to life versus 25 to life without parole is hardly the moral calculus an abuser weighs) it's the stitching up of the gaping holes in the system designed to monitor against such abuses.

Just so, the gaping holes in the government's initiatives to know everything you do is misguided because the problem isn't a lack of information—we're drowning in raw data—it's the inability to correlate and process that data and understand its significance. In the interim we must realize that we resign our liberties to those who would know our secrets. The protections of the Fourth and Fifth amendments, even if you reject the concept of a penumbra of privacy, explicitly prohibit the kind of schizophrenic approach the government takes in both disavowing and then casting a driftnet in the hopes of either stumbling on something by chance or proving to us that which we already know (that the internet can be a dangerous or inappropriate place).

The danger here is specifically the abuse of prosecutorial powers in ways that are specifically to be narrowly constrained and require specific release and are reserved for law makers—not law enforcers.

Such an approach is ultimately arbitrary and has the corrosive effect of both fostering a lack of respect for the law and the government that upholds it and unnecessarily criminalizing those who would seek to protect their privacy rights. Worse yet, it creates incentives to thwart those initiatives that really do create a serious danger as such circumvention becomes widely available, spurred by government's efforts to close in on privacy rights.

When did the Republican Party become the party of busybodies? When did the party of minimalist government become the force that needed to know everything about you, even it means applying contradictory logic? It's as though we suddenly elected Mrs. Kravitz as commander in chief… only with a more annoying voice and less mentally observant.

The most difficult problem of these initiatives and their approaches, of course, is the inadvertent things turned up that ruin people's lives not on the basis of what is discovered, or the threat to public safety, but on the basis of the preconceptions, biases, and 'targeted and focused' scrutiny of those whom are simply suspect or distrusted for no other basis than because the enforcement officer is so inclined. Like the police officer who pulls over the longhaired pierced motorist or black man looking for probable cause and lets the yuppie meth dealer drive on by.

Rove thinks that's a winning issue for Republicans. I think secrets cast to the wind have a way of sticking in the trees… and that the precedent of driftnet fishing expeditions given some of the current corruption scandals on Capital Hill means that this may be a backfire for Rove—and that driftnets may smell fishy to the rest of the nation, especially when they're portrayed as 'targeted and focused.'

No one gossips about other people's secret virtues.
—Bertrand Russell


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