Schneier on Security

Skeptical • April 22, 2014 9:33 AM

@DB: You’re ludicrous. You blindly, steadfastly refuse to see any increase in authoritarian and corrupt State over here, no matter what.

I’m able to keep a sense of perspective, DB. In Russia “homosexual propaganda” was recently made illegal; in the US, gay marriage continues its accelerating pace towards nationwide legalization. In Russia, the government dictates most of what the media reports, and satire directed at Putin is a dangerous thing; in the US, criticizing government is standard in the media, and satire directed at Obama is strongly protected by law.

It’s worth talking about whether a given policy in the US is good or bad on the merits, and to question those policies that increase government intrusion into private communications, but it’s utter delusion to pretend that the US is “authoritarian” or to take seriously any comparisons of the NSA to internal Russian security services.

Skeptical • April 23, 2014 6:31 AM

@DB: It’s utter delusion to refuse to see the steady march toward “authoritarian rule” in the USA. Is it as bad as Russia domestically yet? Obviously not. But it’s going in that direction! Every decade more and more of the US Constitution is effectively null and void, the way the law and law enforcement ignores it.

I’m sorry, but nothing you’ve said in that paragraph is true.

On the one hand, since 9/11, Congress has increased the surveillance powers of federal agencies, though this has been within the zone of discretion in which Congress may increase or decrease such powers by passage of ordinary law (and where it was not, the courts rejected it; this is why the NSL provision had to be modified by Congress).

On the other hand, in recent decades certain provisions of the Constitution have been interpreted to provide more robust protection to certain forms of private autonomy, e.g. gay and lesbian civil rights. In Lawrence v. Texas, for example, the Court applied the following language, from an earlier case involving abortion, to the question of whether the state could ban sex between same-sex adults: At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

And indeed this past summer the federal Defense of Marriage Act was struck down by the Supreme Court.

To give another example:

On the one hand, there was an attempt by the Bush Administration to hold certain detainees in an area which they hoped would be beyond the reach of the US courts.

On the other hand, the US courts rejected the attempt. The Supreme Court has heard several cases on the matter, and has explicitly stated that detainees are entitled to reasonable due process; it has also forced modifications of the military commissions designed to hold trials. This was an expansion of rule of law, not a contraction.

So there is no “steady march” towards authoritarianism, nor have increasing amounts of the Constitution become “null and void.”

That is not to say that all policies and laws are just fine, or that improved policies and new laws are not desirable. But it is to say that grand narratives that attempt to portray the US as steadily marching towards authoritarianism, such as Naomi Wolf’s rather silly book that predicted fascism in the US, are simplistic and wrong.

@vas: sometimes blind patriots are similar to the sick person who did not recognize(in denial) symptoms when problem could be treated with recovery option. But that is my own opinion. By the way, Mark Twain said “Americans have many freedoms, but they have wisdom not to use them”.

Blind patriotism is not good.

@Clive: Thus swearing alegance to a flag is an out moded mentality which no state should ask of you, there is no “My Country right or wrong”, no “No man is an island”, it is you the individual hero or villain, standing or falling at the whim of fourtune, responsable for each and every action you take.

This is an instance of the fallacy of false dichotomy. The choices are not simply “my country right or wrong” and “you stand alone, without allegiance.” There are many choices between those two.

And indeed, one of the key documents in US history, the Declaration of Independence, consists of essentially a long argument that blind allegiance is NOT owed to one’s country, irrespective of circumstances.

Separately, do you really think that nation-states are outmoded and irrelevant? Given various current events, this seems like a strange view.

Skeptical • April 23, 2014 8:57 PM

@Autolykos: I don’t think improvements in gay rights are a good indicator of how authoritarian a society/government is. That depends on the motives behind those changes.

I should have emphasized the Court’s rationale more than I did. The Court struck down DOMA because it violated the principle of equal protection of the law. The expansion of equality under the law, enhancing the protections of persons or groups that might be the target of laws aimed at oppressing them, is a sign of a strong liberal state protective of individual liberty.

If you look at pure civil rights issues (free speech/assembly, free press, surveillance, etc) it’s hard to deny there is a clear trend over the last one or two decades.

I don’t see any decline in freedom of speech or assembly or press. Those are as strong as ever.

I’ve already noted that after 9/11, Congress did increase the surveillance power of the federal government.

I agree of course that there has been an increase in electronic surveillance, but that’s at best a mixed indicator of authoritarian direction. The real question is how is the surveillance conducted, who is regulating it, and how is the surveillance used?

A democratic regime protective of human rights will have one answer.
An authoritarian regime will have a very different answer.

Against that, we must weigh the advances in civil liberties in the area of gay and lesbian rights, which is no small thing. Indeed, quite frankly it is much more important than the adjustments to surveillance power made in the PATRIOT Act.

Against this complex backdrop, it’s simply in error to conclude that there is a clear direction towards authoritarianism. It can be done only if your sole focus is surveillance power.

Skeptical • April 24, 2014 9:51 AM

@Autolykos: National Security Letters? “Free Speech Zones”? OWS activists getting harassed in any legal (and probably a few illegal) ways for organizing or participating in protests? Police brutality against peaceful demonstrations (see: “Pepper Spraying Cop”)?

Police brutality is just as illegal today as it was 10 years ago. We’re better able to capture it on video when it occurs, which is a good thing.

NSLs are the equivalent of grand jury subpoenas, and have no more impact than the latter on freedom of speech, press, and assembly. They only way they’ve been found to impact free speech is via their confidentiality clause, which requires the recipient to keep silent about receiving a NSL. This does not prevent a recipient from challenging a NSL in court, and the confidentiality clause is not unlimited.

No doubt some OWS activists were harassed by some local police. The “pepper spraying cop” in California is certainly an example. It’s just as wrong today when police step over the line as it was 10 years ago. And just like 10 years ago, in confrontations some percentage of police do so. I’m glad we have more video footage today to better hold police who do so accountable, and to better protect police from false accusations when they’re levied as well.

Overall though OWS activists were protected, and their right of assembly and speech was not violated. They were eventually evicted from the public spaces they had occupied, but the right to protest doesn’t confer a right to indefinitely occupy public parks and prevent others from using them. There are now, as there were 10 years and long before that, time, place, and manner restrictions on how one can protest which are legitimate and constitutional.

I must admit that I didn’t read the Surpreme Court decision – but it doesn’t matter that much what they wrote. Courts can not strike down laws for political reasons, only for formal reasons. So they have to find one.

At that level of constitutional law, the Supreme Court is choosing among different principled interpretations of concepts like equal protection, and so their decisions are not formally determined in advance. However, the Court is nonetheless choosing a principle, and in this case they’ve expanded the scope of equal protection of the law.

And if you don’t read the decisions, then you don’t understand what they chose, or how that choice will impact the law, or how that choice makes the “authoritarian direction” thesis less tenable.

Skeptical • April 26, 2014 11:26 AM

@DB: I’m very much aware that I will not likely ever convince Skeptical of anything. But I will never “just give up.” It’s not about the destination, it’s about the journey we take through life.

I always try to stay open to other viewpoints. Two of the questions I pose to myself when I take any position on a subject are “what evidence could persuade you differently?” and “if you had begun with different background information or assumptions, would the available evidence lead you to conclude differently?”

If he is the embodiment of our government’s psychological warfare against us, then our only proper response is to stand up, and loudly and obviously let them know back that we are not being fooled by any of it, and it is not phasing us.

No, I’m not. And I can’t begin to describe how ridiculous it is for anyone to think so.

I’m aware this seems to be the view of the courts right now, but it’s a stupid way of looking at it. So if Congress were to ever a make law that says “The Constitution is hereby disbanded, the President is now proclaimed King” we should look at it like “well, we can’t prove the President has ever EXERCISED his new powers as King yet, so therefore it’s not technically an unconstitutional law”? That’s retarded. And this is exactly why I keep claiming the courts are “in on it” with Congress and the Executive to strip us of our basic civil liberties.

I suspect you’re thinking of “facial” challenges vs. “as applied” challenges. The issue is complicated, see e.g. Facial and As Applied Challenges Under the Roberts Court, but, to put it very roughly, courts will attempt to adopt an interpretation of a law that keeps the law within constitutional bounds (even if they find a particular application of the law to be unconstitutional). If they can’t do so, if the law is unconstitutional under any reasonable interpretation, then they’ll strike down the law entirely.

I actually hope that it becomes a negative self-fulfilling prophecy… that is, my claiming it’s happening actually slightly helps to stop it from happening, thereby proving me “wrong” technically. I’d like nothing more than to be wrong about something terrible or bad or evil. Unfortunately I just don’t see it yet.

Well, we may differ in our views of the present, but we both have the same hopes for the future.