Wednesday, December 18, 2013

One Court Decision Against the NSA -- Will anything result?

NSA-UnconstsitutionalThe lash-back against the NSA's Snowden-revealed practice -- the "vacuuming" of vast amounts of meta-data about hundreds of millions of people (e.g. phone call traffic analysis) -- has begun.  "U.S. District Judge Richard Leon, in Washington D.C., called the NSA program “almost-Orwellian,” and ordered the NSA to stop collecting or analyzing the metadata of the two men who sued. But "citing national security, Leon stayed his order pending resolution in the appellate courts."  This well-written summary explains the rationale, but leaves many things unsaid:
1. It seems unlikely that such rulings, or even restricting legislation, will provide the slightest confidence that such vastly encompassing endeavors in Big Data will actually stop.  Indeed, given Moore's Law and the number of elite centers of power that want to look at it all, the only plausible outcome of limits imposed on NSA will be to drive the banned practices underground… exactly as happened ten years ago when the scandal over John Poindexter's "Total Information Awareness"(TIA) program got it banished… only to re-appear at NSA. If your sole solution is to shout and get things 'banned' -- driving them to re-appear elsewhere in a game of Whack-a-Mole -- then you will accomplish much-sanctimony and nothing practical in defense of liberty.
Already, the NSA and other agencies are culling out the charmingly-naive array of hundreds of thousands of slightly supervised contract workers -- Edward Snowden was one -- in favor of much more tightly controlled in-house teams. In other words, the pre-revelation situation was far more likely to reveal any truly serious threats to liberty, than the new, Post-Snowden systems will be. In other words, things are not always as they seem.  Stand ready for ironies.
sousveillance-transparency2.  Indeed… ironically… the one thing that would change all this and make such bans enforceable, is the one thing that would make such bans redundant and unnecessary -- transparency-supervision or "sousveillance," shining citizen light upon the mighty.  If we were to focus on that -- say by inserting newly aggressive Inspectors Generals, augmented by trustworthy, grand-jury style oversight panels - levied from the population, at-random - with utter freedom to observe, plus making the FISA court truly adversarial -- then court orders and legislative restrictions might even stand a chance of being effective. 

 But, under those conditions, restrictions on the NSA would then not even be necessary! It would be possible to get the positive-sum outcome of a Protector Caste that sees enough to do its job of detecting bad things, while being under tight reins over any conceivable actions it might take. Because, properly supervised, our watchmen would be constantly reminded they are watchdogs and not wolves.  We would control what they can DO to us, and shrug over what they can see.
Know-more3. Righteous efforts to blind (as opposed to supervise) the mighty are doomed for another reason. Because it is insane to base your freedom on restricting what other people know.  You can never verify what anyone else does or does not know -- it's not even logical!  In stark contrast though, you can verify what you know. 

So, base your safety and freedom -- and the safety/freedom of your fellow citizens -- upon all of you knowing more, not some dark entities (unverifiably) "knowing less."
And if you did not fully grasp the preceding two paragraphs, please, it truly is worthwhile for you to understand them, completely, even if you wind up disagreeing. It's important.  Better yet, see: The Transparent Society: Will Technology Make Us Choose Between Privacy and Freedom?
cameras-smaller4. Anyway, even if you do manage to restrict what the government sees, that will only be temporary. Time and technology are changing rapidly. Take Brin's Corollary to Moore's Law: that cameras get cheaper, smaller, better, more mobile and more numerous -- each year -- at a rate that is much faster than Moore's Law.  

Legislate against this rising tide?  In a few years they will be too small to detect -- concealed in that woman's earring.  That fellow's shirt button, then on the corner of of every pair of sunglasses sold.  Make it illegal and cops and the rich and criminals will still have and use them. Ban the face recognition databases? Then cops and the rich and criminals and techies and bureaucrats will see everyone around them equipped with name tags and captions…. but you won't, because you voted for a law that will only hamper you and average folks like you.
5. And then… there is the killer point. What happens when the next 9/11 shock drives us back into panic mode?  As chillingly predicted on page 206 of The Transparent Society -- (see below) -- citizens will fall all over themselves handing back to our protectors the powers to see and surveil and predict and protect.  That ratchet effect is what we must avoid.  It is the thing that brought us the present situation!  And it will happen again, if we do not stop and think.
Glass-housesMy purpose is not to undermine efforts to gain control over state power. I want to ensure perpetual sovereignty for citizens over public servants, in an open and free society!  What I find frustrating is the reflex that is 99% pervasive, to assume that these perils will be solved by endless hand-wringing jeremiads, whining and moaning about Big Brother, along with calls to ban the mighty from looking at us. To wag a chiding finger and assume some new law or court ruling will stop the mighty from seeing. 

That approach is utterly doomed, it has zero examples of success from human history and it is not how we achieved the freedom that we already have.
I have nothing but contempt for sanctimonious whining. We need to be militant, all right! But in realistic ways that pay attention to human nature and to what has, historically, worked.  Not trying to blind the mighty, but stripping them naked so that we can look back and supervise what they do.
Alas, it is the one thing that our righteous public Jeremiahs almost never demand.
== a pertinent excerpt ==
TransparentSocietyHere is that passage from page 206 of The Transparent Society (1997):
"As a mental experiment, let’s go along with FBI director Freeh and try to envisage what might happen if bombers actually succeeded in toppling both towers of New York’s World Trade Center, killing tens of thousands.  Or imagine that nuclear, or bio-plague terrorists someday devastate a city.  Now picture the public reaction if the FBI ever managed to show real (or exaggerated) evidence that they were impeded in preventing the disaster by an inability to tap coded transmissions sent by the conspirators. They would follow this proof with a petition for new powers, to prevent the same thing from happening again.
"Such requests might be refused nine times in a row, before finally being granted the tenth.  The important point is that, once the bureaucracy gets a new prerogative of surveillance, it is unlikely ever after to give it up again.  The effect is like a ratchet that will creep relentlessly toward one kind of transparency -- the kind that is unidirectional. A one-way mirror, under which we are all watched by officials, from on high. The place that we called “City Number One” in the first chapter of this book."
… cue Twilight Zone music… The passage goes on to almost precisely predict what later would be the Patriot Act. And how I wish that forecast had not been so accurate.



27 comments:

Alex Tolley said...

If we were to focus on that -- say by inserting newly aggressive Inspectors Generals, augmented by trustworthy, grand-jury style oversight panels - levied from the population, at-random - with utter freedom to observe, plus making the FISA court truly adversarial -- then court orders and legislative restrictions might even stand a chance of being effective.

Our own senators cannot even get access to what the NSA knows, even the ones with security clearance. How is that going to be any different with your proposed solution?

One alternative would be to enforce accountability. Jail time for directors and staff that exceeded their legal limitations. We've seen the same problem with financial institutions. We have supervision, but it is corrupted. We have sousveillance in excellent reporting about what has gone on. We have had whistle blowers explain what was going on. We have penalties on the books, but no executive is charged and brought to trial. To break the game of cat and mouse, those responsible for breaking the law must have real skin in the game and suffer consequences. Sousveillance without real teeth is not going to be effective, especially in the cozy corridors of power.

David Brin said...

Senators don't go on-site, stand behind people as they work and pull them aside for confidential tattles.

thenightistartedtodrinkmycoffeeblack said...

What if all this information was, simply, public? What if the internet was Known as a public open forum... keeping private where it always was, behind closed (physical) doors? Then what if this Big Data was made available to everyone?

David Brin said...

thenight… I believe we'd all be much better off… and we'd be forced to decide to be a lot more tolerant of one another. But I might be wrong and I hope that we'll find a way to make do with 90% transparency.

Tim H. said...

It would be a daunting task for an ordinary citizen to sift through all that data. Entities wishing to hide might provide extra minutiae to obscure pertinent facts.

Anonymous said...

Hello Dr. Brin and others. You have stated your concerns about shadowy elites but you also mentioned the possibility of bio-plague terrorists causing devastation. This seems to me to be a much greater threat than cabals of affluent people, if only because modern medicine is not up to the task of stopping man made viruses. In addition, the difficulty threshold for creating viruses is likely to lower as technology advances. Eventually, even tiny enclaves of mad people with only moderate expertise and funding will have the ability to eradicate our species. Can transparency (or anything) really stop this from happening?

sociotard said...

Not exactly transparency, but I do believe that increasing the capacity of the public to look for stuff would help prevent or contain such problems. Consider the option to turn our cell phones into nuclear-chemical-biological-explosive detectors.

But then, even Dr. Brin has speculated on the possibility that yes, the destructive power of teens with deathplague fabbers might outstrip the ability of society to control. Link

Well, I cannot guarantee that there aren't runaway, nonconvergent series answers to the "Ratio of Sanity" solution to existential risk.

The "Ratio of Sanity" suggests that, as technology advances, more and more destructive power will become available to insane individuals, but so long as there are ten thousand sane and skilled geneticists (say) for every lunatic/skilled one, then solutions will cancel out the damage quickly, or deter the loons in the first place.

This ratio must converge, always, or we're screwed. If antimatter-from wall-current becomes common, it may explain the absence of extraterrestrials, all right.

Alex Tolley said...

Senators don't go on-site, stand behind people as they work and pull them aside for confidential tattles.

And in the other corner, J Pournelle loathes inspectors as unnecessary and supporting his "iron law" of institutional expansion.

While I disagree with most of his opinions, he does have a point that institutions (and businesses) do try to perpetuate themselves, and the natural inclination is to expand. We've seen that with the TSA and probably the NSA. Control can get difficult once politics is involved.

Which is one reason why I think your premise is correct, but not the prescription. Institutions will snoop because they can. But corruption is also in human nature, so assuming an incorruptible elite as part of the solution doesn't work for me.

David Brin said...

Alex, corruption can be prevented or at least stymied and captured-usless institutions can be retired. Ever hear of the ICC? The CAB?

Corruption fades when people feel empowered to adversarially confront it… and then tools empower the victims of corruption to record it and nail it.

India just passed its first major anti-corruption measure. One can hope for them.

Robert said...

This one should amuse Dr. Brin: Anonymity has just suffered a near-lethal blow as the sounds of a computer... or even monitoring the electrical usage of it... can be used to decipher its encryption keys.

Rob H.

Howard Brazee said...

I will give up my privacy - if that is the only way to get the state to give up its privacy. (I will accept that some things need to be secret - for a limited time not greater than a year). The state should be working for the people, and if we are the bosses, we need to know what the state is doing.

Tony Fisk said...

Somewhat off-topic (although what *are* the implications of transparency to immortals? )

Scientists reverse ageing process in mice

I know there are caveats about how this would transfer to humans, but they're talking of starting human trials in a year (not the usual 'scam-flag' 5 or so). Worth watching.

(Capcha seems to have reverted to word again: eseprogr echini = 'civet' anti-ageing coffee, only with echidnas)

Alex Tolley said...

Corruption fades when people feel empowered to adversarially confront it… and then tools empower the victims of corruption to record it and nail it.

I think that is more an article of faith than reality.

Are you familiar with Robert Axelrod's work in this area? he showed that that "social bad apples" can rot the whole barrel at some critical level in the population. This was just game theory modeling, and people are more complex than these models, but it is instructive. If correct, it means that corruption becomes endemic simply due to the rewards granted the corrupted.

As Bud Fox tells his lawyer friend in Wall Street: "Everybody's doing it [insider trading]. But if you don't know it...."

jnuk said...

@Alex Tlley

"One alternative would be to enforce accountability. Jail time for directors and staff that exceeded their legal limitations. " -

This is exactly what Stalin did in the USSR. Your factory failed its plan - go to jail. Your rocket didn't fly well - go to a camp. Accountability was the paramount.

What was the main reason the Soviet Union failed? Perhaps they got too soft at the end.

sociotard said...

On reason I am nonplussed when I hear that a notably corrupt country passes anti-corruption legislation is that corrupt countries love anti-corruption legislation. If everybody is corrupt, it becomes difficult to get into a position of any influence without being at least a little dirty. Then if anyone starts rocking boats or blowing whistles, the powers what is can throw the book at that corrupt official.

David Brin said...

ALex, there are threshold effects. Corruption takes a downward spiral when the average person thinks: "if I offer this cop a bribe there's a better than 10% chance that he will arrest me for attempted bribery, especially since the cop will wonder if there's a 10% chance I am trying to entrap him." This is precisely how most people have thought in most parts of the US for most of an entire generation or more. And it will be reinforced by the tsunami of cameras.

Indeed, look into WITNESS which has provided cameras in developing nations for decades, with just this purpose.

But yes you need a tipping point.

Darrell E said...

How much more likely is it that the state will competently and in good faith enforce and abide by new restrictive regulations / laws RE the NSA compared to how likely it is that the state will competently and in good faith create an effective IG department and actually give it the authority over the NSA you describe?

I like your ideas RE an IG and transprarency, but I think there may be a more basic underlying issues to be dealt with before something like an IG could be any more effective than what we have had to date. If an IG were created in the climate that obtains right now I think it would quickly end up as yet another non productive, department used primarily for political theater.

Alex Tolley said...

@jnuk - What was the main reason the Soviet Union failed?

You know the reason. Hint: it wasn't penalizing, however harshly, the factory owner.

Alex Tolley said...

@DB "if I offer this cop a bribe there's a better than 10% chance that he will arrest me for attempted bribery, (...)

Which demonstrates that you don't know the correct way to do this (or perhaps it is an art that has been lost). It is harder for the bribed to determine, a priori, possible entrapment, but if the rewards are attractive, the costs can be reduced by subterfuge.

Then there is the issue of what constitutes a bribe and what is socially acceptable behavior. Networking, paying for lunches, is all acceptable behavior in the US, even though it often comes with expectations of "service". No-one calls this bribery. What looks like bribery to us, is just a way of life, "greasing the wheels" or paying a "tip" in other cultures. Lobbying accompanied by generous "gifts" is legal in the US. In the case of cops accepting bribes, if this was illegal, then it might change to acceptable "tipping".
As you've said before, human inguity is boundless.




locumranch said...

At the heart of David's sousveillance argument lies the assumption that human beings are inherently 'good,' 'trustworthy' and uncompromising. Unfortunately, he appears to be wrong on all counts because none of those things are inarguably true, as if casting 'light' upon natural human behaviors is enough to scatter or destroy them in vampiric fashion.

We would have never invented a capriciously beneficent god if humans were innately 'godly' or 'good'; we would have no need for any form of divine reward, punishment or contractual enforcement if we were inherently moral or 'trustworthy'; and our very 'rationality' springs from our ability to compromise about all things natural, good and moral.

This belief, the idea that human tendencies towards deceitfulness, corruption & violence are somehow 'aberrant' and 'unnatural', is delusional in and of itself. That humans are inherently deceitful, corrupt, violent and 'common' is undeniable and it is this very behavioral 'commonality' that makes these behaviours 'normal' rather than 'aberrant'. To paraphrase Hannah Arendt, human behaviours are not made 'evil' by virtue of being 'not good', human behaviours are made 'evil' by virtue of their banality.

The NSA will continue to collect their data, the liberals will compromise & give up their liberties in a piecemeal fashion, the oligarchs will consolidate their wealth & authority, the poor will suffer and the ruling class will continue to rule until they are physically prevented from doing so BECAUSE this is the 'normal' state of things.



Best.

Darrell E said...

locumranch said:

"At the heart of David's sousveillance argument lies the assumption that human beings are inherently 'good,' 'trustworthy' and uncompromising."

I am not sure how much of David's writings on this and related topics you have read. Your characterization here is mistaken. A foundational theme of David's is that we need to build our society's institutions, legal, economic, political, etc. in such a way as to maximize utility and fairness by specifically including an honest assessment of our penchants for lying, cheating & stealing when trying to determine how best to structure and regulate them.

locumranch said:

"That humans are inherently deceitful, corrupt, violent and 'common' is undeniable and it is this very behavioral 'commonality' that makes these behaviours 'normal' rather than 'aberrant'."

From what David has written on this and similar subjects, for years, I can't believe he would disagree with this claim.

For myself I would add that while your claim here is most defintely true, it is also true that caring, kindness and many other positive traits, including various types of altruism, are also most definitely real aspects of human nature. Denying that is blinkering yourself just the same as denying our less savory characteristics.

The trick is to arrange things so that the undesirable affects of our bad characteristics are minimized, while (or by) leveraging our good characteristics. In short, pragmatism applied to an honest and complete assessment of our best, verified, understandings of the way things are.

Keith Halperin said...

An open question:
Do you feel that these and other political/social/psychological questions are inherently irresolvable, or may in fact be answered to some meaningful degree through the continuing development of fields like behavioral economics, cognitive science, and perhaps something like an "applied sociology" aka, "psycho-history"?

Alex Tolley said...

@locumranch
"That humans are inherently deceitful, corrupt, violent and 'common' is undeniable and it is this very behavioral 'commonality' that makes these behaviours 'normal' rather than 'aberrant'."

I think that this is 180 degrees backwards. Humans are generally "good". Indeed atheists are good without a punitive God surveilling them. Behavioral experiments show that people will even sustain losses to deny rewards for those exhibiting bad behavior.

Social systems are stable when cheaters are constrained to low fractions. When cheaters are not constrained, and are seen to be rewarded by cheating, this infects the population and the system becomes dominated by cheating.

One recent tangential example is the problem of massive grade creep at Harvard and the rampant cheating that still goes one, despite exposure. The simple fact is that cheats in this system are not punished, which has made "cheating" in all its forms, if not acceptable, at least a requirement to compete.

One small bit of evidence that supports David's suggestion that some sort of sousveillance will work, is the experiment that showed that just putting paper "eyes" above a honor snack stand reduced freeloading. Whether this supports the idea that most people are bad, or that only a minority are, is up for interpretation.

David Brin said...

"At the heart of David's sousveillance argument lies the assumption that human beings are inherently 'good,' 'trustworthy' and uncompromising. At the heart of David's sousveillance argument lies the assumption that human beings are inherently 'good,' 'trustworthy' and uncompromising. "

I have seldom seen a single human being spend two years in a place (this site) and come away so often with not only cockeyed, diametrically opposite conclusions… but hilariously hysterical ones!

EVERY position that I take concerns the inherent flaw in human nature of our delusional propensity for cheating and how only one solution has ever been found… reciprocal accountability.

It lies at the root of my declarations about Adam Smith. About "accountability arenas" and so on.

For a bright young feller, this boy can be a real dunce.


===

never mind… onward.

Valkyrie Ice said...

Hi David.

You know my general views, but for those who don't I'd like to point out an article which kind of simply shows why I believe Sousvellance is pretty much inevitable regardless of any effort to prevent it.

http://www.acceler8or.com/2011/07/vr-integration-requires-total-transparency/

Pretty much sums it all up.

Valkyrie Ice said...

Oh, and Locumranch?


http://www.acceler8or.com/2011/10/how-transparency-will-end-tyranny/

Sorry a mere link, but it would take far too much verbiage to explain all over again.

David Brin said...

Valkyrie Ice… very interesting stuff…

and onward to next post...