Entries Tagged "courts"

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Counterterrorism Mission Creep

One of the assurances I keep hearing about the U.S. government’s spying on American citizens is that it’s only used in cases of terrorism. Terrorism is, of course, an extraordinary crime, and its horrific nature is supposed to justify permitting all sorts of excesses to prevent it. But there’s a problem with this line of reasoning: mission creep. The definitions of “terrorism” and “weapon of mass destruction” are broadening, and these extraordinary powers are being used, and will continue to be used, for crimes other than terrorism.

Back in 2002, the Patriot Act greatly broadened the definition of terrorism to include all sorts of “normal” violent acts as well as non-violent protests. The term “terrorist” is surprisingly broad; since the terrorist attacks of 9/11, it has been applied to people you wouldn’t normally consider terrorists.

The most egregious example of this are the three anti-nuclear pacifists, including an 82-year-old nun, who cut through a chain-link fence at the Oak Ridge nuclear-weapons-production facility in 2012. While they were originally arrested on a misdemeanor trespassing charge, the government kept increasing their charges as the facility’s security lapses became more embarrassing. Now the protestors have been convicted of violent crimes of terrorism—and remain in jail.

Meanwhile, a Tennessee government official claimed that complaining about water quality could be considered an act of terrorism. To the government’s credit, he was subsequently demoted for those remarks.

The notion of making a terrorist threat is older than the current spate of anti-terrorism craziness. It basically means threatening people in order to terrorize them, and can include things like pointing a fake gun at someone, threatening to set off a bomb, and so on. A Texas high-school student recently spent five months in jail for writing the following on Facebook: “I think I’ma shoot up a kindergarten. And watch the blood of the innocent rain down. And eat the beating heart of one of them.” Last year, two Irish tourists were denied entry at the Los Angeles Airport because of some misunderstood tweets.

Another term that’s expanded in meaning is “weapon of mass destruction.” The law is surprisingly broad, and includes anything that explodes, leading political scientist and terrorism-fear skeptic John Mueller to comment:

As I understand it, not only is a grenade a weapon of mass destruction, but so is a maliciously-designed child’s rocket even if it doesn’t have a warhead. On the other hand, although a missile-propelled firecracker would be considered a weapon of mass destruction if its designers had wanted to think of it as a weapon, it would not be so considered if it had previously been designed for use as a weapon and then redesigned for pyrotechnic use or if it was surplus and had been sold, loaned, or given to you (under certain circumstances) by the secretary of the army ….

All artillery, and virtually every muzzle-loading military long arm for that matter, legally qualifies as a WMD. It does make the bombardment of Ft. Sumter all the more sinister. To say nothing of the revelation that The Star Spangled Banner is in fact an account of a WMD attack on American shores.

After the Boston Marathon bombings, one commentator described our use of the term this way: “What the United States means by terrorist violence is, in large part, ‘public violence some weirdo had the gall to carry out using a weapon other than a gun.’ … Mass murderers who strike with guns (and who don’t happen to be Muslim) are typically read as psychopaths disconnected from the larger political sphere.” Sadly, there’s a lot of truth to that.

Even as the definition of terrorism broadens, we have to ask how far we will extend that arbitrary line. Already, we’re using these surveillance systems in other areas. A raft of secret court rulings has recently expanded the NSA’s eavesdropping powers to include “people possibly involved in nuclear proliferation, espionage and cyberattacks.” A “little-noticed provision” in a 2008 law expanded the definition of “foreign intelligence” to include “weapons of mass destruction,” which, as we’ve just seen, is surprisingly broad.

A recent Atlantic essay asks, somewhat facetiously, “If PRISM is so good, why stop with terrorism?” The author’s point was to discuss the value of the Fourth Amendment, even if it makes the police less efficient. But it’s actually a very good question. Once the NSA’s ubiquitous surveillance of all Americans is complete—once it has the ability to collect and process all of our emails, phone calls, text messages, Facebook posts, location data, physical mail, financial transactions, and who knows what else—why limit its use to cases of terrorism? I can easily imagine a public groundswell of support to use to help solve some other heinous crime, like a kidnapping. Or maybe a child-pornography case. From there, it’s an easy step to enlist NSA surveillance in the continuing war on drugs; that’s certainly important enough to warrant regular access to the NSA’s databases. Or maybe to identify illegal immigrants. After all, we’ve already invested in this system, we might as well get as much out of it as we possibly can. Then it’s a short jump to the trivial examples suggested in the Atlantic essay: speeding and illegal downloading. This “slippery slope” argument is largely speculative, but we’ve already started down that incline.

Criminal defendants are starting to demand access to the NSA data that they believe will exonerate themselves. How can a moral government refuse this request?

More humorously, the NSA might have created the best backup system ever.

Technology changes slowly, but political intentions can change very quickly. In 2000, I wrote in my book Secrets and Lies about police surveillance technologies: “Once the technology is in place, there will always be the temptation to use it. And it is poor civic hygiene to install technologies that could someday facilitate a police state.” Today we’re installing technologies of ubiquitous surveillance, and the temptation to use them will be overwhelming.

This essay originally appeared in TheAtlantic.com.

EDITED TO ADD (8/4): Other agencies are already asking to use the NSA data:

Agencies working to curb drug trafficking, cyberattacks, money laundering, counterfeiting and even copyright infringement complain that their attempts to exploit the security agency’s vast resources have often been turned down because their own investigations are not considered a high enough priority, current and former government officials say.

Posted on July 19, 2013 at 9:40 AM • View Comments

The Value of Breaking the Law

Interesting essay on the impossibility of being entirely lawful all the time, the balance that results from the difficulty of law enforcement, and the societal value of being able to break the law.

What’s often overlooked, however, is that these legal victories would probably not have been possible without the ability to break the law.

The state of Minnesota, for instance, legalized same-sex marriage this year, but sodomy laws had effectively made homosexuality itself completely illegal in that state until 2001. Likewise, before the recent changes making marijuana legal for personal use in WA and CO, it was obviously not legal for personal use.

Imagine if there were an alternate dystopian reality where law enforcement was 100% effective, such that any potential law offenders knew they would be immediately identified, apprehended, and jailed. If perfect law enforcement had been a reality in MN, CO, and WA since their founding in the 1850s, it seems quite unlikely that these recent changes would have ever come to pass. How could people have decided that marijuana should be legal, if nobody had ever used it? How could states decide that same sex marriage should be permitted, if nobody had ever seen or participated in a same sex relationship?

This is very much like my notion of “outliers” in my book Liars and Outliers.

Posted on July 16, 2013 at 12:35 PM • View Comments

The Office of the Director of National Intelligence Defends NSA Surveillance Programs

Here’s a transcript of a panel discussion about NSA surveillance. There’s a lot worth reading here, but I want to quote Bob Litt’s opening remarks. He’s the General Counsel for ODNI, and he has a lot to say about the programs revealed so far in the Snowden documents.

I’m reminded a little bit of a quote that, like many quotes, is attributed to Mark Twain but in fact is not Mark Twain’s, which is that a lie can get halfway around the world before the truth gets its boots on. And unfortunately, there’s been a lot of misinformation that’s come out about these programs. And what I would like to do in the next couple of minutes is actually go through and explain what the programs are and what they aren’t.

I particularly want to emphasize that I hope you come away from this with the understanding that neither of the programs that have been leaked to the press recently are indiscriminate sweeping up of information without regard to privacy or constitutional rights or any kind of controls. In fact, from my boss, the director of national intelligence, on down through the entire intelligence community, we are in fact sensitive to privacy and constitutional rights. After all, we are citizens of the United States. These are our rights too.

So as I said, we’re talking about two types of intelligence collection programs. I want to start discussing them by making the point that in order to target the emails or the phone calls or the communications of a United States citizen or a lawful permanent resident of the United States, wherever that person is located, or of any person within the United States, we need to go to court, and we need to get an individual order based on probable cause, the equivalent of an electronic surveillance warrant.

That does not mean and nobody has ever said that that means we never acquire the contents of an email or telephone call to which a United States person is a party. Whenever you’re doing any collection of information, you’re going to—you can’t avoid some incidental acquisition of information about nontargeted persons. Think of a wiretap in a criminal case. You’re wiretapping somebody, and you intercept conversations that are innocent as well as conversations that are inculpatory. If we seize somebody’s computer, there’s going to be information about innocent people on that. This is just a necessary incident.

What we do is we impose controls on the use of that information. But what we cannot do—and I’m repeating this—is go out and target the communications of Americans for collection without an individual court order.

So the first of the programs that I want to talk about that was leaked to the press is what’s been called Section 215, or business record collection. It’s called Section 215 because that was the section of the Patriot Act that put the current version of that statute into place. And under that ­ this statute, we collect telephone metadata, using a court order which is authorized by the Foreign Intelligence Surveillance Act, under a provision which allows a government to obtain business records for intelligence and counterterrorism purposes. Now, by metadata, in this context, I mean data that describes the phone calls, such as the telephone number making the call, the telephone number dialed, the data and time the call was made and the length of the call. These are business records of the telephone companies in question, which is why they can be collected under this provision.

Despite what you may have read about this program, we do not collect the content of any communications under this program. We do not collect the identity of any participant to any communication under this program. And while there seems to have been some confusion about this as recently as today, I want to make perfectly clear we do not collect cellphone location information under this program, either GPS information or cell site tower information. I’m not sure why it’s been so hard to get people to understand that because it’s been said repeatedly.

When the court approves collection under this statute, it issues two orders. One order, which is the one that was leaked, is an order to providers directing them to turn the relevant information over to the government. The other order, which was not leaked, is the order that spells out the limitations on what we can do with the information after it’s been collected, who has access, what purposes they can access it for and how long it can be retained.

Some people have expressed concern, which is quite a valid concern in the abstract, that if you collect large quantities of metadata about telephone calls, you could subject it to sophisticated analysis, and using those kind of analytical tools, you can derive a lot of information about people that would otherwise not be discoverable.

The fact is, we are specifically not allowed to do that kind of analysis of this data, and we don’t do it. The metadata that is acquired and kept under this program can only be queried when there is reasonable suspicion, based on specific, articulable facts, that a particular telephone number is associated with specified foreign terrorist organizations. And the only purpose for which we can make that query is to identify contacts. All that we get under this program, all that we collect, is metadata. So all that we get back from one of these queries is metadata.

Each determination of a reasonable suspicion under this program must be documented and approved, and only a small portion of the data that is collected is ever actually reviewed, because the vast majority of that data is never going to be responsive to one of these terrorism-related queries.

In 2012 fewer than 300 identifiers were approved for searching this data. Nevertheless, we collect all the data because if you want to find a needle in the haystack, you need to have the haystack, especially in the case of a terrorism-related emergency, which is—and remember that this database is only used for terrorism-related purposes.

And if we want to pursue any further investigation as a result of a number that pops up as a result of one of these queries, we have to do, pursuant to other authorities and in particular if we want to conduct electronic surveillance of any number within the United States, as I said before, we have to go to court, we have to get an individual order based on probable cause.

That’s one of the two programs.

The other program is very different. This is a program that’s sometimes referred to as PRISM, which is a misnomer. PRISM is actually the name of a database. The program is collection under Section 702 of the Foreign Intelligence Surveillance Act, which is a public statute that is widely known to everybody. There’s really no secret about this kind of collection.

This permits the government to target a non-U.S. person, somebody who’s not a citizen or a permanent resident alien, located outside of the United States, for foreign intelligence purposes without obtaining a specific warrant for each target, under the programmatic supervision of the FISA Court.

And it’s important here to step back and note that historically and at the time FISA was originally passed in 1978, this particular kind of collection, targeting non-U.S. persons outside of the United States for foreign intelligence purposes, was not intended to be covered by FISA as ­ at all. It was totally outside of the supervision of the FISA Court and totally within the prerogative of the executive branch. So in that respect, Section 702 is properly viewed as an expansion of FISA Court authority, rather than a contraction of that authority.

So Section 702, as I—as I said, it’s—is limited to targeting foreigners outside the United States to acquire foreign intelligence information. And there is a specific provision in this statute that prohibits us from making an end run about this, about—on this requirement, because we are expressly prohibited from targeting somebody outside of the United States in order to obtain some information about somebody inside the United States. That is to say, if we know that somebody outside of the United States is communicating with Spike Bowman, and we really want to get Spike Bowman’s communications, we’ve got to get an electronic surveillance order on Spike Bowman. We cannot target the out ­ the person outside of the United States to collect on Spike.

In order to use Section 702, the government has to obtain approval from the FISA Court for the plan it intends to use to conduct the collection. This plan includes, first of all, identification of the foreign intelligence purposes of the collection; second, the plan and the procedures for ensuring that the individuals targeted for collection are in fact non-U.S. persons who are located outside of the United States. These are referred to as targeting procedures. And in addition, we have to get approval of the government’s procedures for what it will do with information about a U.S. person or someone inside the United States if we get that information through this collection. These procedures, which are called minimization procedures, determine what we can keep and what we can disseminate to other government agencies and impose limitations on that. And in particular, dissemination of information about U.S. persons is expressly prohibited unless that information is necessary to understand foreign intelligence or to assess its importance or is evidence of a crime or indicates a—an imminent threat of death or serious bodily harm.

And again, these procedures, the targeting and minimization procedures, have to be approved by the FISA court as consistent with the statute and consistent with the Fourth Amendment. And that’s what the Section 702 collection is.

The last thing I want to talk about a little bit is the myth that this is sort of unchecked authority, because we have extensive oversight and control over the collection, which involves all three branches of government. First, NSA has extensive technological processes, including segregated databases, limited access and audit trails, and they have extensive internal oversight, including their own compliance officer, who oversees compliance with the rules.

Second, the Department of Justice and my office, the Office of the Director of National Intelligence, are specifically charged with overseeing NSA’s activities to make sure that there are no compliance problems. And we report to the Congress twice a year on the use of these collection authorities and compliance problems. And if we find a problem, we correct it. Inspectors general, independent inspectors general, who, as you all know, also have an independent reporting responsibility to Congress, also are charged with undertaking a review of how these surveillance programs are carried out.

Any time that information is collected in violation of the rules, it’s reported immediately to the FISA court and is also reported to the relevant congressional oversight committees. It doesn’t matter how small the—or technical the violation is. And information that’s collected in violation of the rules has to be purged, with very limited exceptions.

Both the FISA court and the congressional oversight committees, which are Intelligence and Judiciary, take a very active role in overseeing this program and ensuring that we adhere to the requirements of the statutes and the court orders. And let me just stop and say that the suggestion that the FISA court is a rubber stamp is a complete canard, as anybody who’s ever had the privilege of appearing before Judge Bates or Judge Walton can attest.

Now, this is a complex system, and like any complex system, it’s not error free. But as I said before, every time we have found a mistake, we’ve fixed it. And the mistakes are self-reported. We find them ourselves in the exercise of our oversight. No one has ever found that there has ever been—and by no one, I mean the people at NSA, the people at the Department of Justice, the people at the Office of the Director of National Intelligence, the inspectors general, the FISA court and the congressional oversight committees, all of whom have visibility into this—nobody has ever found that there has ever been any intentional effort to violate the law or any intentional misuse of these tools.

As always, the fundamental issue is trust. If you believe Litt, this is all very comforting. If you don’t, it’s more lies and misdirection. Taken at face value, it explains why so many tech executives were able to say they had never heard of PRISM: it’s the internal NSA name for the database, and not the name of the program. I also note that Litt uses the word “collect” to mean what it actually means, and not the way his boss, Director of National Intelligence James Clapper, Jr., used it to deliberately lie to Congress.

Posted on July 4, 2013 at 7:07 AM • View Comments

Privacy Protests

Interesting law journal article: “Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion,” by Elizabeth E. Joh.

Abstract: The police tend to think that those who evade surveillance are criminals. Yet the evasion may only be a protest against the surveillance itself. Faced with the growing surveillance capacities of the government, some people object. They buy “burners” (prepaid phones) or “freedom phones” from Asia that have had all tracking devices removed, or they hide their smartphones in ad hoc Faraday cages that block their signals. They use to surf the internet. They identify tracking devices with GPS detectors. They avoid credit cards and choose cash, prepaid debit cards, or bitcoins. They burn their garbage. At the extreme end, some “live off the grid” and cut off all contact with the modern world.

These are all examples of what I call privacy protests: actions individuals take to block or to thwart government surveillance for reasons that are unrelated to criminal wrongdoing. Those engaged in privacy protests do so primarily because they object to the presence of perceived or potential government surveillance in their lives. How do we tell the difference between privacy protests and criminal evasions, and why does it matter? Surprisingly scant attention has been given to these questions, in part because Fourth Amendment law makes little distinction between ordinary criminal evasions and privacy protests. This article discusses the importance of these ordinary acts of resistance, their place in constitutional criminal procedure, and their potential social value in the struggle over the meaning of privacy.

Read this while thinking about the lack of any legal notion of civil disobedience in cyberspace.

Posted on July 3, 2013 at 12:30 PM • View Comments

How the NSA Eavesdrops on Americans

Two weeks ago, the Guardian published two new Snowden documents. These outline how the NSA’s data-collection procedures allow it to collect lots of data on Americans, and how the FISA court fails to provide oversight over these procedures.

The documents are complicated, but I strongly recommend that people read both the Guardian analysis and the EFF analysis—and possibly the USA Today story.

Frustratingly, this has not become a major news story. It isn’t being widely reported in the media, and most people don’t know about it. At this point, the only aspect of the Snowden story that is in the news is the personal story. The press seems to have had its fill of the far more important policy issues.

I don’t know what there is that can be done about this, but it’s how we all lose.

Posted on July 1, 2013 at 12:16 PM • View Comments

Petition the NSA to Subject its Surveillance Program to Public Comment

I have signed a petition calling on the NSA to “suspend its domestic surveillance program pending public comment.” This is what’s going on:

In a request today to National Security Agency director Keith Alexander and Defense Secretary Chuck Hagel, the group argues that the NSA’s recently revealed domestic surveillance program is “unlawful” because the agency neglected to request public comments first. A federal appeals court previously ruled that was necessary in a lawsuit involving airport body scanners.

“In simple terms, a line has been crossed,” Marc Rotenberg, executive director of the Electronic Privacy Information Center, told CNET. “The agency’s function has been transformed, and we think the public should have an opportunity to say something about that.”

It’s an ambitious—and untested—legal argument. No court appears to have ever ruled that the Administrative Procedure Act, which can require agencies to solicit public comment, has applied to the supersecret intelligence community. The APA explicitly excludes from judicial review, for instance, “military authority exercised in the field in time of war.”

EPIC is relying on a July 2011 decision (PDF) it obtained from the U.S. Court of Appeals for the D.C. Circuit dealing with installing controversial full-body scanners at airports. The Transportation Security Agency, the court said, was required to obtain comment on a rule that “substantively affects the public.”

This isn’t an empty exercise. While it’s unlikely that a judge will order the NSA to suspend the program pending public approval, the process will put pressure on Washington to subject the NSA to more oversight, and pressure the NSA into more transparency. We’ve used these tactics before. Two decades ago, EPIC launched a similar petition against the Clipper Chip, a process that eventually led to the Clinton administration and the FBI abandoning the effort. And EPIC’s more recent action against TSA full-body scanners is one of the reasons we have privacy safeguards on the millimeter wave scanners they are still using.

The more people who sign this petition, this, the clearer the message it sends to Washington: a message that people care about the privacy of their telephone records, Internet transactions, and online communications. Secret judges should not be allowed to use secret interpretations of secret laws to authorize the NSA to engage in domestic surveillance. Sooner or later, a court is going to recognize that. Until then, the more noise the better.

Add your voice here. It just might work.

Posted on June 19, 2013 at 2:18 PM • View Comments

Prosecuting Snowden

Edward Snowden broke the law by releasing classified information. This isn’t under debate; it’s something everyone with a security clearance knows. It’s written in plain English on the documents you have to sign when you get a security clearance, and it’s part of the culture. The law is there for a good reason, and secrecy has an important role in military defense.

But before the Justice Department prosecutes Snowden, there are some other investigations that ought to happen.

We need to determine whether these National Security Agency programs are themselves legal. The administration has successfully barred anyone from bringing a lawsuit challenging these laws, on the grounds of national secrecy. Now that we know those arguments are without merit, it’s time for those court challenges.

It’s clear that some of the NSA programs exposed by Snowden violate the Constitution and others violate existing laws. Other people have an opposite view. The courts need to decide.

We need to determine whether classifying these programs is legal. Keeping things secret from the people is a very dangerous practice in a democracy, and the government is permitted to do so only under very specific circumstances. Reading the documents leaked so far, I don’t see anything that needs to be kept secret. The argument that exposing these documents helps the terrorists doesn’t even pass the laugh test; there’s nothing here that changes anything any potential terrorist would do or not do. But in any case, now that the documents are public, the courts need to rule on the legality of their secrecy.

And we need to determine how we treat whistle-blowers in this country. We have whistle-blower protection laws that apply in some cases, particularly when exposing fraud, and other illegal behavior. NSA officials have repeatedly lied about the existence, and details, of these programs to Congress.

Only after all of these legal issues have been resolved should any prosecution of Snowden move forward. Because only then will we know the full extent of what he did, and how much of it is justified.

I believe that history will hail Snowden as a hero—his whistle-blowing exposed a surveillance state and a secrecy machine run amok. I’m less optimistic of how the present day will treat him, and hope that the debate right now is less about the man and more about the government he exposed.

This essay was originally published on the New York Times Room for Debate blog, as part of a series of essays on the topic.

EDITED TO ADD (6/13): There’s a big discussion of this on Reddit.

Posted on June 12, 2013 at 6:16 AM • View Comments

Why We Lie

This, by Judge Kozinski, is from a Federal court ruling about false statements and First Amendment protection

Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner“); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”)….

An important aspect of personal autonomy is the right to shape one’s public and private persona by choosing when to tell the truth about oneself, when to conceal, and when to deceive. Of course, lies are often disbelieved or discovered, and that, too, is part of the push and pull of social intercourse. But it’s critical to leave such interactions in private hands, so that we can make choices about who we are. How can you develop a reputation as a straight shooter if lying is not an option?

Two books on the evolutionary psychology of lying are related: David Livingstone Smith’s Why We Lie, and Dan Ariely’s The Honest Truth about Dishonesty.

Posted on May 30, 2013 at 6:31 AM • View Comments

The Court of Public Opinion

Recently, Elon Musk and the New York Times took to Twitter and the Internet to argue the data—and their grievances—over a failed road test and car review. Meanwhile, an Applebee’s server is part of a Change.org petition to get her job back after posting a pastor’s no-tip receipt comment online. And when he wasn’t paid quickly enough, a local Fitness SF web developer rewrote the company’s webpage to air his complaint.

All of these “cases” are seeking their judgments in the court of public opinion. The court of public opinion has a full docket; even brick-and-mortar establishments aren’t immune.

More and more individuals—and companies—are augmenting, even bypassing entirely, traditional legal process hoping to get a more favorable hearing in public.

Every day we have to interact with thousands of strangers, from people we pass on the street to people who touch our food to people we enter short-term business relationships with. Even though most of us don’t have the ability to protect our interests with physical force, we can all be confident when dealing with these strangers because—at least in part—we trust that the legal system will intervene on our behalf in case of a problem. Sometimes that problem involves people who break the rules of society, and the criminal courts deal with them; when the problem is a disagreement between two parties, the civil courts will. Courts are an ancient system of justice, and modern society cannot function without them.

What matters in this system are the facts and the laws. Courts are intended to be impartial and fair in doling out their justice, and societies flourish based on the extent to which we approach this ideal. When courts are unfair—when judges can be bribed, when the powerful are treated better, when more expensive lawyers produce more favorable outcomes—society is harmed. We become more fearful and less able to trust each other. We are less willing to enter into agreement with strangers, and we spend more effort protecting our own because we don’t believe the system is there to back us up.

The court of public opinion is an alternative system of justice. It’s very different from the traditional court system: This court is based on reputation, revenge, public shaming, and the whims of the crowd. Having a good story is more important than having the law on your side. Being a sympathetic underdog is more important than being fair. Facts matter, but there are no standards of accuracy. The speed of the Internet exacerbates this; a good story spreads faster than a bunch of facts.

This court delivers reputational justice. Arguments are measured in relation to reputation. If one party makes a claim against another that seems plausible, based on both of their reputations, then that claim is likely to be received favorably. If someone makes a claim that clashes with the reputations of the parties, then it’s likely to be disbelieved. Reputation is, of course, a commodity, and loss of reputation is the penalty this court imposes. In that respect, it less often recompenses the injured party and more often exacts revenge or retribution. And while those losses may be brutal, the effects are usually short-lived.

The court of public opinion has significant limitations. It works better for revenge and justice than for dispute resolution. It can punish a company for unfairly firing one of its employees or lying in an automobile test drive, but it’s less effective at unraveling a complicated patent litigation or navigating a bankruptcy proceeding.

In many ways, this is a return to a medieval notion of “fama,” or reputation. In other ways, it’s like mob justice: sometimes benign and beneficial, sometimes terrible (think French Revolution). Trial by public opinion isn’t new; remember Rodney King and O.J. Simpson?

Mass media has enabled this system for centuries. But the Internet, and social media in particular, has changed how it’s being used.

Now it’s being used more deliberately, more often, by more and more powerful entities as a redress mechanism. Perhaps because it’s perceived to be more efficient or perhaps because one of the parties feels they can get a more favorable hearing in this new court, but it’s being used instead of lawsuits. Instead of a sideshow to actual legal proceedings, it is turning into an alternate system of dispute resolution and justice.

Part of this trend is because the Internet makes taking a case in front of the court of public opinion so much easier. It used to be that the injured party had to convince a traditional media outlet to make his case public; now he can take his case directly to the people. And while it’s still a surprise when some cases go viral while others languish in obscurity, it’s simply more effective to present your case on Facebook or Twitter.

Another reason is that the traditional court system is increasingly viewed as unfair. Today, money can buy justice: not by directly bribing judges, but by hiring better lawyers and forcing the other side to spend more money than they are able to. We know that the courts treat the rich and the poor differently, that corporations can get away with crimes individuals cannot, and that the powerful can lobby to get the specific laws and regulations they want—irrespective of any notions of fairness.

Smart companies have already prepared for battles in the court of public opinion. They’ve hired policy experts. They’ve hired firms to monitor Facebook, Twitter, and other Internet venues where these battles originate. They have response strategies and communications plans in place. They’ve recognized that while this court is very different from the traditional legal system, money and power does count and that there are ways to tip the outcomes in their favor: For example, fake grassroots movements can be just as effective on the Internet as they can in the offline world.

It’s time we recognize the court of public opinion for what it is—an alternative crowd-enabled system of justice. We need to start discussing its merits and flaws; we need to understand when it results in justice, and how it can be manipulated by the powerful. We also need to have a frank conversation about the failings of the traditional justice scheme, and why people are motivated to take their grievances to the public. Despite 24-hour PR firms and incident-response plans, this is a court where corporations and governments are at an inherent disadvantage. And because the weak will continue to run ahead of the powerful, those in power will prefer to use the more traditional mechanisms of government: police, courts, and laws.

Social-media researcher danah boyd had it right when she wrote in Wired: “In a networked society, who among us gets to decide where the moral boundaries lie? This isn’t an easy question and it’s at the root of how we, as a society, conceptualize justice.” It’s not an easy question, but it’s the key question. The moral and ethical issues surrounding the court of public opinion are the real ones, and ones that society will have to tackle in the decades to come.

This essay originally appeared on Wired.com.

Posted on February 28, 2013 at 2:40 PM • View Comments

Becoming a Police Informant in Exchange for a Lighter Sentence

Fascinating article.

Snitching has become so commonplace that in the past five years at least 48,895 federal convicts—one of every eight—had their prison sentences reduced in exchange for helping government investigators, a USA TODAY examination of hundreds of thousands of court cases found. The deals can chop a decade or more off of their sentences.

How often informants pay to acquire information from brokers such as Watkins is impossible to know, in part because judges routinely seal court records that could identify them. It almost certainly represents an extreme result of a system that puts strong pressure on defendants to cooperate. Still, Watkins’ case is at least the fourth such scheme to be uncovered in Atlanta alone over the past 20 years.

Those schemes are generally illegal because the people who buy information usually lie to federal agents about where they got it. They also show how staggeringly valuable good information has become—­ prices ran into tens of thousands of dollars, or up to $250,000 in one case, court records show.

There are all sorts of complexities and unintended consequences in this system. This is just a small part of it:

The risks are obvious. If the government rewards paid-for information, wealthy defendants could potentially buy early freedom. Because such a system further muddies the question of how informants—already widely viewed as untrustworthy ­—know what they claim to know, “individual cases can be undermined and the system itself is compromised,” U.S. Justice Department lawyers said in a 2010 court filing.

Plea bargaining is illegal in many countries precisely because of the perverse incentives it sets up. I talk about this more in Liars and Outliers.

Posted on December 28, 2012 at 6:37 AM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.