A Fundamentally Childish Argument

I don't even know where to start with this. The argument that says that "if you're not doing anything wrong, you don't have anything to worry about" is the one that will screw us all.

The essence of the chief argument against this – and rest assured, I’ve used it myself – is, “if you’re not doing anything wrong you don’t have anything to worry about.” The government, police or “the authorities” in general are looking for The Bad Guys. They aren’t looking for “us.” We are The Good Guys and have nothing to fear.

The problem with that argument is this--who's to say what is "wrong?" Is protesting the government "wrong" this week? Because we just got wind that the Governor of Maryland was using his State Police to spy on anti-war protesters. Not "terrorists." American citizens opposed to the war in Iraq. The ability of the Federal government to get out a pair of movable goalposts and change what they define as being "wrong" is what this argument is all about. The moment we gave up our rights in favor of being protected because we believe that the government is only interested in going after some loose affiliation of "bad guys" is the moment when we handed the government a blank check to decide who it can silence. Whistleblowers, protesters, activists, people who don't commit domestic or international terrorism--see where this leads to?

One common and immediate rebuttal to this is that the real Bad Guys are the ones who will find ways to get around these surveillance efforts. They will use “burner” style disposable phones and find ways to disable GPS devices in vehicles. They will disguise their visage in public, which most of us would never do, and most of them probably don’t use computers anyway. As in the case of gun bans, the Good Guys will give up their guns while the Bad Guys keep theirs. (They’re not terribly interested in obeying local statutes in the first place, you see.) In the end, the government will simply wind up spying on and imposing restrictions upon the Good Guys while the Bad Guys flaunt the law.

Already solved that problem--it's called data mining, and it allows US intelligence agencies to sift vast amounts of meta-data to catch exactly those tactics. It's effective, it protects privacy rights because the "hit" generated from a positive match leads into the oversight process if the person that the information is matched to is a US person. The FISA court kicks in and protects the rights of the US person being surveilled, and we should always have some body, some authority, providing oversight.

Disguising their visage? You mean, rubber mask makeup and paste-on moles and shit? The kind with fake hair sticking out of them? Yes, your average "Jihadi" probably did attend drama school and probably aced stage makeup and design.

The gun argument is another fallacy--what does gun control have to do with protecting the privacy rights of Americans? Gun control is a public policy issue for the jurisdiction that you live in--what works in Montana might not work in downtown Chicago for a policy. Yes, the bad guys will always have guns. No one is willing to do what it takes to ensure they are prevented from getting guns and no one is prepared to lock people up in vast numbers for twenty or thirty years at a stretch.

In the end, the privacy protections we enjoy through the Bill of Rights, Miranda and similar guarantees, were never intended to protect the guilty nor make it more challenging for CSI investigators to capture them in dramatic fashion. These assurances were granted to shield the innocent from false accusations and prosecution, be it through either malfeasance or incompetence on the part of the authorities. We didn’t design this system to ensure you can get off on a technicality if you are guilty. We built it to make sure the right person winds up behind bars. This is the final intent of FISA – not to spy on you as long as you remain one of the Good Guys, but to make sure the Bad Guys don’t show up at your door with a palm frond.

Okay, that will leave your head spinning. Last time I checked, "CSI" was a fucking TV show. And that's a fundamental misunderstanding of the rule of law. Our system will sometimes let the guilty go--and that's because the guilty and the innocent have to be afforded the right to a vigorous defense. It's not perfect, but it beats every other system out there. You know, like the one where the government decides what is and what is not "wrong" based on their own whim.

If you're willing to give up your rights to be a little safe, you'll give up all your rights to be completely safe. The problem with that childish thinking is, with all of your rights gone, you have guaranteed yourself a peril that is much worse than anything a terrorist could do to you.

Cell Phone Trafficking

Stories like this could be used to defend warrantless wiretaps or even granting retroactive immunity to Telecom providers. This is very misleading--we allow data mining in order to catch people who use "throwaway" phones, and rightly so. What we forget is that the activities of our intelligence agencies should ALWAYS be under scrutiny and that the rights of Americans should never be thrown away.

For less than $15, you can buy a cell phone loaded with minutes. You can buy more as you go whenever those minutes run out. Best of all, you aren't locked into a long-term contract. But in South Florida, New York, California, Georgia, Texas and elsewhere, traffickers have figured out they can make big profits by purchasing thousands of these low-cost phones and tweaking the software so that calls can be made on any cell network. The altered phones are then sold all over the world - costing the phone companies tens of millions of dollars.

Some traffickers employ dozens of people full-time as "runners" to buy the phones at retail stores so they can later be hacked into and resold. The problem for the phone companies is that they often sell the phones at a loss, instead making their money when customers have to buy additional minutes from them - a guaranteed profit once the phone is sold. But the phone companies have no guarantee that customers will buy minutes from them after the phones are hacked or shipped to a far-off country.

This is probably the part that concerns intelligence agencies throughout the world, not just our own. There is always going to be a belief that "...if we could just listen to what they're saying!" is the end-all, be-all of intelligence gathering. This is true in the case of that rare undisciplined, chatty, gossipy terrorist. What you get from listening to conversations between people who practice good operational security (OPSEC) is next to nothing, except for cover terms and a few tics here and there. It would be of value to correlate what they say with what you know they have done or intend to do--that would help you crack their cover terms, if you were patient enough to try. Sometimes the most important aspect of collecting what they say is not what they say--but who they say it to and then who that person goes out and calls after the conversation is over.

That's why data mining is important. I will defend the right of our intelligence agencies to comb through the vast amounts of data in order to find associations and links to other pieces of data, but I will only do so if there is rigorous oversight to prevent abuse. I will only do so if there is a requirement that a FISA court will provide oversight if the actual conversations are intercepted AFTER the data mining reveals a legitimate reason for doing so. As it currently stands, we've forgotten to emphasize the oversight and compliance in the rush to save us from an unspecified calamity.

This article goes on to talk about what's going on in the unlocked cell phone world--a world long since past the moment when we should have shut it down. A deadlocked Congress and an administration that can't be bothered to put competent people in charge of agencies like the Department of Homeland Security and the Federal Communications Commission are to blame for allowing these egregious loopholes to remain open:

It's technically not illegal to unlock the software on your personal cell phone - but the companies are hoping to put a stop to traffickers that they say are siphoning away profits. Led by Miami-based TracFone Wireless Inc., makers of the low-cost prepaid cell phones are suing traffickers in federal courts around the country. One such lawsuit resulted in a criminal conviction in Houston when a man disobeyed a court order by refusing to stop selling the phones.

"There is a lot of profit in it," said James Baldinger, a West Palm Beach attorney with the Carlton Fields firm who represents TracFone. "Even as we continue to shut people down, we do find there are people still engaged in it. TracFone is going to keep going after them."

These phones are typically sold by traffickers for between $40 and $60 above the discounted TracFone price - and they are frequently marketed in lots of 10,000 or more. Web sites catering to these dealers boast about having huge numbers of unlocked cell phones.

You can't have tens or hundreds of thousands of unlocked cell phones floating around--it takes money to sustain cellular telephone networks and the added burden of all of that traffic puts strain on a system that should be used by the people who pay for the service. Beyond being an issue for intelligence gathering, simple criminal activity flourishes with calls that are not tracked or billed.

The US has been quite successful in keeping out high powered cordless phones--devices which look and behave like cellular telephones but use base stations and powerful signals that give the user the ability to have a personal phone or a closed network of handsets for communication. In many countries, users of these phones have 15 miles or more of range and can use them just like a cell phone or call dozens of other people with the same handset tied to the same base station. If we can stop this technology, why can't we stop the unlocking of throwaway cell phones?

For some reason, the telecom providers lobbied hard for immunity rather than regulations that would shut down the throwaway cell phone market. I guess they fear lawsuits more than having their networks used by thieves.