The Right to Record Police

Last year I touted the most important civil liberties event (so far) in the 21st Century, when top U.S. courts (Glik v. Cunniffe) ruled that citizens have an absolute right to record their interactions with police in public places, and the Obama Administration issued a declaration supporting this ruling as "settled law."  I went on to say that the matter would continue to be at issue, at the level of the streets, with many cameras and cell phones "accidentally" broken… until that phase of resistance ends the way it must, with more bystander-cams catching -- then deterring -- the breaking of cameras. And of course all of it was portrayed in both fiction and nonfiction 25 years ago.

Moreover, the mighty will keep coming up with chess moves, some motivated by nascent tyrannical impulses but also by the best of (blinkered) intentions. For example, what good will your recording do, if you cannot transmit it away from your current location, for safekeeping?  

Heed this: Police can now switch off iPhone cameras and wi-fi: "Apple has recently patented a piece of technology that would allow the authorities and police to block data transmission, including video and photos, whenever they like. All they need to do is decide that a public gathering or venue is deemed “sensitive” and needs to be protected from externalities…. Apple has patented the means to transmit an encoded signal to all wireless gadgets, commanding them to disable recording functions."

Before you react with unalloyed paranoia and loathing, do consider the rationalization. Understand that the Professional Protector Caste has very good reasons to fear what bad guys can do with cell phones during a crisis, triggering bombs, for instance, or reporting where first responders have clustered.  The ostensible reasons are real. But so are our reasons for finding this worrisome. And as usual, there are win-win solutions that no one mentions. Could you come up with some?  I sure can.

Only, now comes the next step.  We should not have to aggressively shove cameras in the faces of cops, to let them know an age of accountability is here. Moving a step closer to a more Transparent Society -- federal Judge Shira Scheindlin prescribed an important experiment, when she found the NYPD’s stop-and-frisk methods unconstitutional. “The City’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner,” the judge concluded. To rein in this practice, she ordered “a trial program requiring the use of body-worn cameras in one precinct per borough, a community-based joint remedial process to be conducted by a court-appointed facilitator, and the appointment of an independent monitor to ensure that the NYPD’s conduct of stops and frisks is carried out in accordance with the Constitution.”

For solid justification of this right to record: Take another look at the Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial duty…and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor…" I call this the Transparency Amendment -- for the real bulwark of freedoms the passive "right to remain silent" but the assertive right to "compel testimony" on our behalf, even from reluctant witnesses. The logical extension of this is a universal ability to record our interactions with authority. 

==Experiments in Transparency==

Watched Cops are Polite Cops: Reason Magazine ran a pretty good discussion of this experiment in transparency and accountability.  Implications are explored… though the author seems unaware of recent rulings giving citizens a universal right to look-and-record back.

And California governor Jerry Brown has just signed a bill requiring that companies inform consumers when their data has leaked or been hacked.  Social Security numbers, addresses, personal details and passwords have all been pried loose or spilled with regularity, and seldom have the hundreds of thousands of exposed people been told.  Now at least you must be... and we'll all see how incredibly often this happens.  And you are surprised?  And you expect that any system humans design will be totally reliable?  Or reliable at all?  Again, there are alternatives.  Transparency -- catching those who would use our information against us -- is a measure that will work with technological change.  This bill is a welcome step in that direction.

== Rewarding whistle-blowing henchmen? ==

Some great ideas need to gel a bit, before getting attention.  Take my 20-year old (and relentlessly-futilely pushed all that time) idea for a series of whistleblower incentives to help shine light on bad things. From my “Eye of the Needle” or EON list of great projects for billionaires. The "Henchman's Prize" is one of my personal favorites - a million dollars plus a new identity for whoever blows the whistle - with full evidence - on the 'worst' concealed plot or scheme that year!  How could this not shine light on something heinous every year? I suspect nothing could more cost-efficiently help poor nations curb corrupt kleptocracies, converting to diamond-shaped patterns... or help developed nations maintain their healthy accountability systems.  See: The Transparent Society.)

Now some attention is being paid to a simplistic version that would only apply to one  -- and not the most worrisome – variety of henchmen-turned-whistleblowers. “A series of prizes for government employees who risk their livelihoods to shed light on U.S. government abuse might be one way to provide an incentive for more whistleblowing. It needn’t just be one big prize. Think about a foundation that might give out multiple prizes, at all levels of government. Yes, it would need to be pretty well funded.”

Um…. Duh? There are dozens of other necessary traits that this proposal would need, that the article seems to have left out, like ways to liability-shelter the prize-givers, how to ensure the system contains no political or national biases and spreads the love around… and so on.

Above all, we need a set of sliding scales to work from, recognizing that not every henchman who betrays his bosses is an unalloyed hero.  For example, while some leaks have been moderately bracing and debate-stimulating (Edward Snowden), others have been hugely over-rated in importance/consequence (WikiLeaks), and only few of the recent spills (e.g. Swiss banking secrecy) have risen to the level that I would call true whistle-blowing of actual illegality.  Sorry not to be following the romantic rush to call every leaker a "hero"! But it just doesn't work that way, and a mature sliding scale really is needed.

Make no mistake!  We need to encourage a secular trend toward a more open world!  But let's keep a sense of proportion along the way, or the whole whistleblower approach will never gell into its true potential.

A final note on this: want a whistle blower who has made vastly more real difference than Julian Assange?  Swiss bank leaker Hervé Falciani says "he faces constant risk and worries about his safety. The French government has provided three bodyguards.

“I am weak and alone,” Mr. Falciani said, as three round-the-clock bodyguards provided by the French government looked on with hard stares. The protection was needed, he insisted, because he faces constant risk as the sole key to decipher the encrypted data — five CD-ROMs containing a list of nearly 130,000 account holders that may be the biggest leak ever in the secretive world of Swiss banking.  He is in high demand these days, having cast himself as a crusader against the murky world of Swiss banking and money laundering. Once dismissed by many European authorities, he and other whistle-blowers are now being courted as the region’s governments struggle to fill their coffers and to stem a populist uprising against tax evasion and corruption.”

Dig it. We need light sent in all directions. And the aim is not to so cripple government that it ceases to be our tool, capable of shining light at other, cryptic elites.

== The encryption mythology: busted again ==

When I first started writing The Transparent Society, attending EFF and Computers, Freedom and Privacy (CFP) and gatherings of hackers, I tried to understand the incredible transcendentalist faith that so many in the community were devoting to encryption, portraying it as a panacea for all privacy concerns and the sure route to protecting all freedom against would be oppressors.  I am technically trained and grasped all of their arguments... only then I asked:

"Have you studied Bakunin?  or any of the other anarchists or other rebels against tyrannical systems, across 6000 years?  Lenin? Machiavelli? Mao? The Gestapo's tactics in the ongoing cat-vs-mouse game that is played for keeps by rebels against secret police?  Can you list the two dozen or so general types of methods used by the Czar's forces, or the KGB?"  Not one of them had read even a scintilla of background on a subject that (they claimed) fascinated them!  Not one.

Nor could they show how strong encryption of their internet access, from email to IP addresses to physical location, would thwart more than four or five of the ancient methods.  Nor how they could ever be sure that the encryption was actually working, in a world where the powers that be can create false internet IDs as easily as you can and create personas that build cred as fast as you do.  Indeed, would you bet your house that even a majority of the personas on Anonymous aren't NSA fronts?  Really?

Now comes this word: "The National Security Agency is winning its long-running secret war on encryption, using supercomputers, technical trickery, court orders and behind-the-scenes persuasion to undermine the major tools protecting the privacy of everyday communications in the Internet age, according to newly disclosed documents."

Anyone shocked (shocked!) by this never read The Transparent Society.  Nor even a sliver of human history.  Cowering from power does not work! The only thing that has a chance to work - while we still have some political leverage - is light. Torrents of light, aggressively applied to ALL centers of power, and not just government. (Indeed, govt is one of our principal methods for shining light onto other power centers!)  Light that need not blind our civil servants, or even deny them short term tactical secrecy, to do their jobs.

But light of accountability, nonetheless, to remind the watch dog that it is a dog and not a wolf.

Postscript: Pro-publica offers an apologia that cogently discusses their reasons for revealing the NSA's decryption program.

==A step toward "Smart Mobs"?==

The Internet Response League seeks to call gamers to civic duty. IRL’s first project is to develop a plug-in for World of Warcraft that will notify gamers in the virtual world when real-world disasters break out and ask for help. Gamers would be asked to tag data and other simple but brain-labor-intensive tasks.  Dang, it's took long enough. See my story "The Smartest Mob" for where this might all lead.

Five myths about the NSA... by a guy who should know.  For example: " The Foreign Intelligence Surveillance Act forbids the NSA from targeting U.S. citizens or legal residents without an order issued by the Foreign Intelligence Surveillance Court." Ah, but the rub is the secret/potemkin nature of that FISA "court" which could be redesigned to contain adversarial processes by ombundsmen who are vetted, but chosen by us, to act on our behalf.  Oh… and fix the darned inspectors general!  There are dozens of measures that could help restore our confidence, without crippling the Protector Caste from doing their jobs.

Alas, instead, after the New York Times exposed the Bush administration's warrantless wiretapping program in 2005, Congress amended the law to weaken the court’s oversight. "Rather than individual warrants, the court can now approve vast, dragnet-style warrants, or orders, as they’re called. For example, the first document released by the Guardian was a top-secret order from the court requiring Verizon to hand over the daily telephone records of all its customers, including local calls."

What might be going on without supervision? Who can know?  One of the more lurid accusations going around is that the NSA and/or other agencies are already engaged in wholesale blackmail of public officials and/or aristocrats or other major figures... exactly as I warned both publicly and in fiction.  I am not yet ready to credit this rumor as anywhere near 50% likely... we still have too many sincere members of the Professional Protector Caste (PPC) who at least tell themselves they are working for democracy's good... and something like this could only be rationalized by terminally delusional or even evil men. Still, the temptation is there.  It is a failure mode that will flower into full stench, if not now then someday, so long as we fail to develop means of full accountability, while still letting the PPC do their main jobs.

But there are places where folks actually seem to get it!  The Right to Know Act of 2013: California wants companies to disclose everything they know about you.   (Someone report in on rumors that the big database Company Axcion is taking a bold move toward getting YOU involved in managing your own information.)

== More Transparency News ==

A new browser-widget called "Balancer" takes a corrective measure that I long ago predicted, in EARTH -- by offering the user a wide variety of perspectives on important issues, and not only those that the user happens to agree-with.  Balancer keeps track of the political leanings of your surfing history – and suggests ways to even out your habits. Alas, if you deem this a valuable service, you are already one of those who needs it least.

Ever heard of IPv6?  It is ready to go, allowing the Internet to address vastly, vastly more sites and devices.  Says Internet pioneer Vint Cerf: "My concern is that the (current) address space is 32-bits. It can only support 4.3bn terminations. We thought it would be enough in 1973, but as of 2011 the original internet space is exhausted." So why has the internet not migrated to IPv6 given that in 1998 the IETF adopted the 128-bit internet address space to expand from 4.3bn to 340 trillion trillion trillion devices? IPv6 is not pervasive, he says. While IPv6 software is installed on operating systems and routers Cerf says: "The ISPs have been reluctant to turn it on. This is a constant debate because IPv6 is the only way to expand the address space."

Vint goes on to discuss many of the challenges facing the Internet, on the 40th Anniversary of his invention -- with Robert Kahn -- of the TCP/IP packet-based network protocol.

In other news...Facebook will no longer allow you to opt out of their Facial Recognition Database -- as long as you have posted a profile picture.

And... this interesting article introduces (to me, at least) the term of elite panic, a state where regular citizens behave cooperatively while elites (government, business, religious leaders, et.al.) lose their collective cool to paranoia. It describes - alas - a great deal of our recent past.  Indeed, back when I decrypted the Tytler Calumny, I realized that the people often behave far more wisely that the elites who tell themselves how smart they are.

Nor is this the only step forward.  Take another harbinger of things to come. The Seattle Meshnet project creates a completely alternative “internet” with sparse but growing coverage thanks to radio links set up by local hackers. Meshnetters can talk to each other through a channel that they themselves control.  Each node in the mesh, consisting of a radio transceiver and a computer, relays messages from other parts of the network. If the data can't be passed by one route, the meshnet finds an alternative way through to its destination. Another meshnet in northeast Spain now has more than 21,000 wireless nodes, spanning much of Catalonia.

An alternative: Hyperboria is a virtual meshnet because it runs through the existing internet, but is purely peer-to-peer. This means people who use it exchange information with others directly over a completely encrypted connection, with nothing readable by any centralized servers.  Read up about this, but you are seeing only the tip of a big iceberg.

== And the miscellany corner ==

Accusing Google Glass users of being either "glassed-out" zombies or else deliberate "glassholes" -- take this fairly typical Atlantic-style grouchitudinism: "Rather than being ransacked by the undead set forth by vodou bokors, tomorrow's cities might be ravaged by the unabsent, set forth by the contemporary practitioners of dark and light magic -- companies like Google itself. Even so, whether undead or unabsent, the Infected or the Wearers, all zombies may share one thing in common: they build their armies by devouring human brains."  Wow. Somebody’s little luddite must have misplaced his binky.

Economist Robert Higgs has noted the existence of a “ratchet effect” related to the growth of state power: while a crisis may be invoked to justify the expansion of the state’s reach, curiously enough, there’s little or no contraction in state power after the crisis abates. People with power are loath to relinquish it. They can be expected to embrace any opportunity to acquire more power greedily, grasping it with both hands.

And finally, cop-blocking -- kind 'o inspiring... though be careful if you do this. Keep your sense of proportion and humor.

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