Entries Tagged "courts"

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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

Court Orders TSA to Answer EPIC

A year ago, EPIC sued the TSA over full body scanners (I was one of the plaintiffs), demanding that they follow their own rules and ask for public comment. The court agreed, and ordered the TSA to do that. In response, the TSA has done nothing. Now, a year later, the court has again ordered the TSA to answer EPIC’s position.

This is an excellent time to add your name to the petition the TSA to do what they’re supposed to do, and what the court ordered them to do: take public comments on full body scanners. The petition has almost 17,000 signatures. If we get 25,000 by August 9th, the government will respond. I doubt they’ll capitulate, but it will be a press event that will put even more pressure on the TSA. So please sign the petition. (Here is my first post about it.)

Posted on August 2, 2012 at 2:19 PM • View Comments

Petition the U.S. Government to Force the TSA to Follow the Law

This is important:

In July 2011, a federal appeals court ruled that the Transportation Security Administration had to conduct a notice-and-comment rulemaking on its policy of using “Advanced Imaging Technology” for primary screening at airports. TSA was supposed to publish the policy in the Federal Register, take comments from the public, and justify its policy based on public input. The court told TSA to do all this “promptly.” A year later, TSA has not even started that public process. Defying the court, the TSA has not satisfied public concerns about privacy, about costs and delays, security weaknesses, and the potential health effects of these machines. If the government is going to “body-scan” Americans at U.S. airports, President Obama should force the TSA to begin the public process the court ordered.

The petition needed 150 signatures to go “public” on Whitehouse.gov (currently at 296), and needs 25,000 to require a response from the administration. You have to register before you can sign, but it’s a painless procedure. Basically, they’re checking that you have a valid e-mail address.

Everyone should sign it.

Posted on July 11, 2012 at 12:39 PM • View Comments

Dance Moves As an Identifier

A burglar was identified by his dance moves, captured on security cameras:

“The 16-year-old juvenile suspect is known for his ‘swag,’ or signature dance move,” Heyse said, “and [he] does it in the hallways at school.” Presumably, although the report doesn’t make it clear, a classmate or teacher saw the video, recognized the distinctive swag and notified authorities.

But is swag admissible to identify a defendant? Assuming it really is unique or distinctive—and it looks that way from the clip, but I’m no swag expert—I’d say yes.

Posted on April 19, 2012 at 1:03 PM • View Comments

The Effects of Data Breach Litigation

“Empirical Analysis of Data Breach Litigation,” Sasha Romanosky, David Hoffman, and Alessandro Acquisti:

Abstract: In recent years, a large number of data breaches have resulted in lawsuits in which individuals seek redress for alleged harm resulting from an organization losing or compromising their personal information. Currently, however, very little is known about those lawsuits. Which types of breaches are litigated, which are not? Which lawsuits settle, or are dismissed? Using a unique database of manually-collected lawsuits from PACER, we analyze the court dockets of over 230 federal data breach lawsuits from 2000 to 2010. We use binary outcome regressions to investigate two research questions: Which data breaches are being litigated in federal court? Which data breach lawsuits are settling? Our results suggest that the odds of a firm being sued in federal court are 3.5 times greater when individuals suffer financial harm, but over 6 times lower when the firm provides free credit monitoring following the breach. We also find that defendants settle 30% more often when plaintiffs allege financial loss from a data breach, or when faced with a certified class action suit. While the compromise of financial information appears to lead to more federal litigation, it does not seem to increase a plaintiff’s chance of a settlement. Instead, compromise of medical information is more strongly correlated with settlement.

The full paper is available by using the one-click download button.

Posted on March 27, 2012 at 6:46 AM • View Comments

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Sidebar photo of Bruce Schneier by Joe MacInnis.