Australia Requires Back Door to Encrypted Communications

Let's say that you and a close friend or intimate created an impenetrable way of communicating with each other. No one else could understand it. Or perhaps you purchased a reinforced armored steel door for your home that can't be breached by anything short of a tank if the would be breacher lacks the key. Or imagine that you're a whistleblower journalist working on a stunning piece of work that will make the Pentagon Papers look like high school gossip. When you publish you will change American politics and history for ever. If anyone knew you had this information you or yours would have some "accidents" and/or the data would disappear. 

I think that most people would agree that the government shouldn't be able to demand that you provide them a codebook for your private conversations, a key to your door, transparent windows for your home and copies of your notes and contact information for your sources. Or at least the government shouldn't be able to do that unless and until you've been tried and convicted of some crime other than not letting the government know what you're talking about, writing about or doing in the privacy of your own home.

We hear a lot about how China continues to perfect the surveillance state. As it turns out although China is setting ugly new records in that regard, other countries are often doing their best to catch up.

SYDNEY, Australia — A new law in Australia gives law enforcement authorities the power to compel tech-industry giants like Apple to create tools that would circumvent the encryption built into their products.

NSA bulk metadata collection found unlawful

The 2nd Circuit Court of Appeals just ruled that the NSA bulk collection of phone records or metadata was unlawful. It is not authorized by Section 215 of the Patriot Act. You can read the entire 77 page decision for yourself here if you are really into such things. I'm no legal expert but I am quite happy to see that at least somewhere in some part of our government there are some people who still take seriously the idea that the government doesn't automatically have the right to know EVERYTHING about you. Many people have cursed Edward Snowden and called him out of his name but this metadata tracking warrantless program was one of the things he revealed. This is why I think Snowden is and remains a hero and a whistleblower. Now that the legality of warrantless metadata collection has been found wanting, I hope that both the legislators who will be tinkering with the relevant sections of the Patriot Act and the citizens whom they purportedly represent will take some time to cogitate on what kind of world we want to build. Laws that are written in haste and panic as the Patriot Act was can often have some unforeseen and unpleasant consequences. But if we truly believe that a citizen has, absent individualized suspicion of wrong doing, a right to be left alone then we should applaud this ruling. This decision could start to ever so slightly hinder the government's "eye in the sky" as it were from rifling through our every communication and digital thought.  

I don't want the NSA performing the equivalent of "stop-and-frisk" in cyberspace. On the other hand, if we really want the Bill of Rights to be altered or suspended (or at least weakened for certain people or groups) then let's have that debate openly and honestly. But for now, although the court didn't specifically address all of the Constitutional issues inherent in these questions it's good enough for me that the court found that the NSA exceeded statutory limitations. As we've discussed before I remain amazed and a more than a bit peeved that people have been accepting of governmental misconduct and expansion of powers under the Bush and Obama Administrations that would have caused outrage and possibly impeachment under earlier Administrations. As a nation, we've become too trusting of the executive branch and too eager to give it more power and authority. I understand the desire to be safe and keep others safe. But there is no perfect way to do that. And grabbing everyone's email and phone metadata just because isn't allowed. I don't see this as a right-left issue but an issue of civil liberty and privacy. 

The US court of appeals has ruled that the bulk collection of telephone metadata is unlawful, in a landmark decision that clears the way for a full legal challenge against the National Security Agency.
A panel of three federal judges for the second circuit overturned an earlier rulingthat the controversial surveillance practice first revealed to the US public by NSA whistleblower Edward Snowden in 2013 could not be subject to judicial review.

But the judges also waded into the charged and ongoing debate over the reauthorization of a key Patriot Act provision currently before US legislators. That provision, which the appeals court ruled the NSA program surpassed, will expire on 1 June amid gridlock in Washington on what to do about it.
The judges opted not to end the domestic bulk collection while Congress decides its fate, calling judicial inaction “a lesser intrusion” on privacy than at the time the case was initially argued.

“In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape,” the judges ruled.
But they also sent a tacit warning to Senator Mitch McConnell, the Republican leader who is pushing to re-authorize the provision, known as Section 215, without modification: “There will be time then to address appellants’ constitutional issues.”

“We hold that the text of section 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program,” concluded their judgement.

"The orders at issue here contain no such limits. The metadata concerning every telephone call made or received in the United States using the services of the recipient service provider are demanded, for an indefinite period extending into the future.  The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects – they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created.  The government can point to no grand jury subpoena that is remotely comparable to the real‐time data collection undertaken under this program."

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Why we need Government: North Carolina and Duke Energy Ash Spill

I'm not a huge fan of overly expansive government. I think that, especially on matters of conscience, privacy and police powers, the federal and state governments have over the course of the last fifty or sixty years, become far too intrusive, too powerful, and dangerously unresponsive to the individual citizens they purport to represent. I still believe that. However government does have some fundamental core duties. One of these is broadly what I'll call public safety. Public safety is often thought to comprise the cop on the street or a military member guarding the nation. That's correct but public safety goes beyond that. Public safety also encompasses the ability to enjoy clean air and water. It involves the ability to eat food anywhere in this country without worrying that you have an excellent chance of consuming deadly molds, bacteria, viruses, fecal material, or other items unfit for human consumption. It means you can purchase goods and services and get what you pay for without always having to bring along your violent ex-con cousin to guarantee that the seller doesn't pull a fast one.

So far so good right? However there is a conservative and occasionally libertarian streak in politics which is fundamentally opposed to the very idea of government interfering with individuals business. When such people actually gain control over the government the results are often no different than if the drug dealer paid off the chief of police. The people on the streets suffer. This truism was recently affirmed in North Carolina, home to my maternal kin. Read the article excerpted below:

RALEIGH, N.C. — Last June, state employees in charge of stopping water pollution were given updated marching orders on behalf of North Carolina’s new Republican governor and conservative lawmakers.

“The General Assembly doesn’t like you,” an official in the Department of Environment and Natural Resources told supervisors called to a drab meeting room here. “They cut your budget, but you didn’t get the message. And they cut your budget again, and you still didn’t get the message.” From now on, regulators were told, they must focus on customer service, meaning issuing environmental permits for businesses as quickly as possible.  Big changes are coming, the official said, according to three people in the meeting, two of whom took notes. “If you don’t like change, you’ll be gone.”

But when the nation’s largest utility, Duke Energy, spilled 39,000 tons of coal ash into the Dan River in early February, those big changes were suddenly playing out in a different light.  Federal prosecutors have begun a criminal investigation into the spill and the relations between Duke and regulators at the environmental agency. The spill, which coated the river bottom 70 miles downstream and threatened drinking water and aquatic life, drew attention to a deal that the environmental department’s new leadership reached with Duke last year over pollution from coal ash ponds. It included a minimal fine but no order that Duke remove the ash — the waste from burning coal to generate electricity — from its leaky, unlined ponds. 

Environmental groups said the arrangement protected a powerful utility rather than the environment or the public. Critics say the accident, the third-largest coal ash spill on record, is inextricably linked to the state’s new environmental politics and reflects an enforcement agency led by a secretary who suggested that oil was a renewable resource and an assistant secretary who, as a state lawmaker, drew a bull’s-eye on a window in his office framing the environmental agency’s headquarters. 
“They’re terrified,” said John Dorney, a retired supervisor who keeps in touch with many current employees. “Now these people have to take a deep breath and say, ‘I know what the rules require, but what does the political process want me to do?’ ”

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This is what happens when government is captured by private actors. Government's beneficial roles are diminished, limited or as Grover Norquist approvingly said ,"made small enough to drown in a bathtub". I like "small government" when we're talking about nosy NSA operatives or SWAT teams in Iowa that invade people's homes for non-violent crimes or bossy child protective services mandarins that seize children first and ask questions later. But when you're talking about things like clean air and water I'm not so sure that small government is the answer.

Or to put it another way smaller government may still be a good thing but not if it's one that is subservient to big business. I see government as similar to a referee in some instances. As the saying goes, the best referees do their jobs and are barely noticed. A really bad referee insists on enforcing every last single rule violation, no matter how petty. A worse referee may even make up violations that don't exist, hand out technicals and expulsions like free candy and have both teams so on edge that the game itself suffers. A different but equally bad referee may be so incompetent that they don't know the rulebook and/ or may not care about the game enough to enforce it even if they did. He may sit back in blissful apathy and say "let the teams work it out". And then finally there are those referees that actively prefer one team over the other and so only call violations on one side while ignoring those of the other. If you were a coach and found out that your game referee was the brother-in-law of the rival coach, his poker buddy or a member of his church you'd probably want a different referee. But if you were the corrupt referee who had already worked for a super rich coach and knew you were going to make millions more after fixing the game for him you'd probably have a really stupid grin on your face and be very happy with life.

None of those types are any good for the larger game society. What we need is, prosaically enough, a balance. Now it's true that for me, as opposed to some other writers here that balance would be slightly more tilted to government staying out of people's business but even I wouldn't argue that government has no role to play. The North Carolina incident is the result of business control over government. We should never forget that by definition, if something is an externality to a business, as pollution certainly is, under our free-market system the business has no immediate economic interest in trying to reduce that externality. The free market is largely unable to influence the business on externalities, hence the name. What keeps the business in line is accurate information about the externality shared with an intelligent informed citizenry, the fear of being hauled into civil or criminal court, and the ability of referees regulators to throw the flag via fines and prevent the business from producing that externality or at least make the business capture the true cost of its process. 

Too many conservatives and libertarians have converted to the almost religious belief system that state and federal government never ever ever have any positive role to play in any business regulation and that we should let the free market sort everything out. This is not only wrong but very dangerous to humans and other living creatures.
Duke Energy’s coal ash pond in Eden, N.C., which dumped 39,000 tons of poisonous sludge and slurry into the Dan River on Feb. 2 — the third-largest such spill in U.S. history — has refocused national attention on the environmental damage these holding ponds can render. But the damage isn’t just confined to when the sludge leaks into busted storm-water drainage pipes that never should have been running under the ponds to begin with, like the situation in Eden. It’s quite possible the damage from coal ash ponds is ongoing even in the absence of accidental spills. 
“These coal ash ponds are unlined, and people don’t realize that,” said Dean Naujoks, the Yadkin Riverkeeper who has been monitoring the Dan River spill. “They are continuously leaching arsenic, chromium, cadmium, mercury, all kinds of toxic heavy metals, into the ground and eventually into groundwater. Duke Energy has 32 of these ponds on 14 sites around the state, and every one of them is unlined. Every one of them is a threat to groundwater.”

We see this over and over again. Government is not always the answer but neither is it always the problem. We must reach a balance between private power, which is only accountable to ownership, and government power, which theoretically represents and is accountable to everyone. North Carolina Governor Pat McCrory worked for Duke Energy for twenty-eight years. He has worked as Governor for the people of North Carolina for a little over one. I wonder which employer has influenced him more. I certainly know which employer has paid him more.

Thoughts?