Category: Politics

The Home Office strikes back

The UK government has been aggressively defending its decision to interrogate Glenn Greenwald’s partner David Miranda for his links to Edward Snowden’s purloined NSA files. The Guardian reports

A Home Office spokesperson said: “The government and the police have a duty to protect the public and our national security. If the police believe that an individual is in possession of highly sensitive stolen information that would help terrorism, then they should act and the law provides them with a framework to do that. Those who oppose this sort of action need to think about what they are condoning.”

Notably lacking from this utilitarian justification is a legal justification. As I remarked here, schedule 7 of the Terrorism Act 2000, which they seem to be using as their legal framework, interrogation is permitted only to determine whether the person is a terrorist, where a “terrorist” is specifically defined as a person who “is or has been concerned in the commission, preparation or instigation of acts of terrorism.”

Absent from this list is “possessing information that would help terrorism”. The rest is just a smear, and the insinuation of what the journalists are “condoning” is just disgusting, reminiscent of the “fellow traveller” smears of the 50s.

Post-Newtonian politics, or, Psychopathology and national security

A short addendum to the comment about the seemingly counter-productive tactics of the US and European security apparatus in its attack on everyone involved in the Snowden NSA-document affair. Inspired by remarks of John Quiggin, I observed that we can’t understand what is happening when we view the state as a unitary goal-directed entity. Much of what is going on now can only be interpreted as eruptions of an internal power struggle, where the security services feel threatened, and are throwing their weight around.

Talking about throwing weight around puts one in mind of celestial mechanics. Under most circumstances we can consider planets as being simple objects, a mass located at a single point, the so-called centre of mass, whose motion is defined by a single momentum vector. It is only when we look at the fine structure, long-term behaviour, or extreme events that we need to consider the internal disposition of the mass. So it is with governments, that we may incline to see as unitary objects moved by the single will of the president or prime minister. Of course, political theorists and historians know that even the most extreme dictatorship has factions and power structures that shape the master’s will.

The analogy has been applied to the philosophy of mind. Two decades ago Philosopher Daniel Dennett introduced the definition of the self as a “center of narrative gravity”. We have intuitive models of human psychology that work, like Newton’s Laws, to predict people’s behaviour without reference to their complex inner life. Thus, if I arrange to meet you at a restaurant at 6, it suffices for me to have a few high-level beliefs about you — you want to see me, you know where the restaurant is, you have a watch — to predict that you will be there at about 6. I don’t need to concern myself with your inner life, and, in fact, for me to do so would be intrusive. It is only when behaviour becomes pathological that the unitary self loses traction.

Similarly, the pathological outbursts of the security apparatus (calling them “services” suggest that they are serving someone other than themselves, which is doubtful) force us to consider the complex power relations between government institutions.

We need to turn to some unemployed old kremlinologists to understand our own governments.

Observations on the Terrorism Act 2000 [Updated]

Despite the incredibly broad powers granted to the police by the infamous section 7 of the Terrorism Act 2000, British police seem to have managed to overstepped their authority in detaining David Miranda. They don’t need any reasonable suspicion of anything, but their actions may only be directed toward determining whether the person is a terrorist.

I’m no legal expert, but I looked at the official text of the law, and found that the paragraph of the infamous schedule 7 on “power to stop, question, and detain” begins by confining the power to a single purpose

An examining officer may question a person to whom this paragraph applies for the purpose of determining whether he appears to be a person falling within section 40(1)(b).

That paragraph, defining the people subject to detention under this act:

40 1) In this Part “terrorist” means a person who—

(b)is or has been concerned in the commission, preparation or instigation of acts of terrorism.

And yet, reports on the questioning of David Miranda say that they were not directed at linking him to any acts of terrorism, past or future:

The questions, [Miranda] said, were relentless – about Greenwald, Snowden, Poitras and a host of other apparently random subjects.

“They even asked me about the protests in Brazil, why people were unhappy and who I knew in the government,” said Miranda.

Note that the law seems (to the untrained eye) extremely specific about the permissible purpose of the detention and questioning. It is only for the purpose of determining if the person is a terrorist. Will the lawbreakers be brought to justice? Do we have to ask?

[Update 20 August, 4:30 pm] Joshua Foust has argued that, while the UK interrogation of David Miranda was regrettably extensive, they were probably legal under the Terrorism Act. I think he is confused here (though certainly I may be the one who is confused) about the distinction between the right of the police to detain someone. According to the Act,

An examining officer may exercise his powers under this paragraph whether or not he has grounds for suspecting that a person falls within section 40(1)(b).

So there is no question that they had the right to detain him, since they have the right to detain anyone at all. What is at issue is their goal, as expressed in their actions during the interrogation. So, while they don’t need any reason to think the person is a terrorist, in fact don’t even need to think that they are, and could interrogate people chosen at random, they can only do so, as stated in the section of the Act quoted above, “for the purpose of determining whether he appears to be” a terrorist. Foust suggests that threatening to expose GCHQ could count as terrorism, under the portion of the definition that includes activity that “is designed seriously to interfere with or seriously to disrupt an electronic system.” That sounds pretty far-fetched to me, but it is in keeping with the pattern that we have seen, where security officials demand sweeping powers, codified in vaguely formulated laws, and then proceed to push the boundaries of even those laws and reinterpret them (secretly) beyond all recognition.

It’s a bit like firing an employee in the US: You don’t have to have any reason, but you can’t have an illegal reason. It can be because you have indigestion, or because an angel told you to fire her, or because she’s too beautiful, but it can’t be because her skin colour clashes with your wallpaper or she’s pregnant or is in a wheelchair. And evidence for your illegal reasons are not just your explanation of the firing (or lack thereof) but other comments and actions surrounding it.

Crypto-fascism?

The word “crypto-fascist” is one of those old-left words whose day has past. In its old meaning — a right-wing authoritarian (fascist) who conceals his true views (crypto, presumably on the uncomfortable model of crypto-Catholics) — has no currency. I propose, then, that this evocative collection of phonemes be repurposed for current circumstances, to mean

Cryptological fascism. The creeping co-optation of democratic states by the cryptographer class; the authoritarian impulse arising from the déformation professionelle of professional cryptographers.

I think that after the Cameron government decided to retaliate against the family of journalist Glenn Greenwald, either for his insolence in daring to embarrass GCHQ, or at the behest of the US for embarrassing their real masters in the NSA, there can be no question that the “someday” when government surveillance and secrecy might undermine democracy is now. Secrets inevitably corrupt human relations,. The vast industry devoted to secrets has created a society within our society that cannot but hold the rest of us in contempt, even as they claim — and probably even believe — that everything they do is for our good.  That is crypto-fascism. The impulse hasn’t changed, but the power balance has been shifted massively by new technologies.

A recent blog post by economist John Quiggin reminded me of an important perspective that is easily missed, when we talk of “the US government” or “the UK government” as though they were unitary entities. He writes

It’s hard to see what kind of power can protect the security apparatus now that it is operating, to some extent in the harsh light of day. In the Snowden matter alone, the security state has trashed relations with Russia, China, and most of Latin America, as well as gravely embarrassing its UK and EU client agencies, and yet they are further than ever from getting their man… At some point, surely this must become a political liability too costly to carry.

Much of the seemingly insane thrashing of the UK and US security apparatus is surely directed internally as much as externally. They are making their legal case and their utilitarian case to the parliamentarians, for sure, most of it behind closed doors, but they are also making their we’re-crazy-as-fuck-don’t-mess-with-us play, much of which by its nature must happen in public. (Because the foolishness wastefulness of the public display is what makes the crazy convincing. It’s the handicap principle, with clandestine agencies in the role of stotting gazelles.)

And that’s exactly the argument that I made before, the danger that Obama — convinced of his own rectitude — cannot even acknowledge: The main danger of this universal surveillance is not the way it will be used to target private citizens, though that is terrible enough (and it has already begun, in the case of David Miranda). It is the way it will be used to wage power struggles within democratic government, using private information against political opponents. The question is not if it will happen, but only when.

Obama to the American people: You’re beautiful when you’re angry!

Back in 2008 I remember being amused by the accusations of arrogance levelled at then-candidate Barack Obama. It seemed to me a mere expression of anti-intellectualism. Of course you don’t become a top politician, even within reach of the presidency, without being pathologically arrogant, but no one really wants a shrinking violet as president.

But the Republican He’s a smart, educated guy, and the Republicans think (I supposed) they can gain an advantage by playing to the common fear that any such person must hold the average citizen in contempt.

I must now admit to having experienced a failure of empathy. Only now, when I (and those like me) am the object of the great BO’s contempt, do I appreciate how peculiarly infuriating this man’s ego is. This idiosyncratic blend of openness and narrow-mindedness, his willingness to discuss anything with anyone, undertaken with the absolute self-assurance that his intellect already encompasses any argument we might make.

Basically, Obama tells the American people, “You’re beautiful when you’re angry”.

In his recent remarks on l’affaire Snowden, Barry said

And if you look at the reports — even the disclosures that Mr. Snowden has put forward — all the stories that have been written, what you’re not reading about is the government actually abusing these programs and listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now, part of the reason they’re not abused is because these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.

Having said that, though, if you are outside of the intelligence community, if you are the ordinary person and you start seeing a bunch of headlines saying, U.S.-Big Brother looking down on you, collecting telephone records, et cetera, well, understandably, people would be concerned. I would be, too, if I wasn’t inside the government…

But people may have better ideas and people may want to jigger slightly sort of the balance between the information that we can get versus the incremental encroachments on privacy that if haven’t already taken place might take place in a future administration, or as technologies develop further….

And so those are the kinds of things that I’m looking forward to having a conversation about.

Speaking as one of those “ordinary persons”, I am disgusted by the president offering to start a “conversation” about what I and many others who have thought deeply about these matters consider to be already huge violations of our civil liberties, an injury to the rule of law, and laying the groundwork for the complete evacuation of democracy, with the caveat right up front that the only possible result could be “to jigger slightly sort of the balance”. Because Obama the Omniscient couldn’t possibly have gotten the whole policy wrong. He’s an (adjunct) constitutional scholar, ferchrissake!

He ridicules our concerns, because we’re not well informed like the people in the “intelligence community”, but he has been withholding the information, and taking extreme measures against anyone who tries to inform us.

But he loves having these heated conversations with us. We ordinary folks are so beautiful when we’re angry!

What happens if you forget the key?

Courts in the US and the UK have recently been ruling that criminal suspects may be forced to reveal cryptographic keys that encode files that may include incriminating evidence. US courts have been divided on whether this infringes upon the otherwise absolute right to avoid self-incrimination. I’ve never taken that argument very seriously — it’s certainly not in the spirit of the right to refuse to assist in prosecuting oneself to allow people to hide documentary evidence of a crime, just because the revelation would be “speech”.  But while people may be compelled to testify in court, and in some democracies may be required to assist police by correctly identifying themselves, it’s not usual for people to be compelled by law to reveal particular information, particularly when they may not know it. While perjury charges may be brought against those who testify falsely, the inevitable unreliability of memory makes perjury convictions difficult, and I thought impossible when the subject simply pleads ignorance rather than testifying to a falsehood.

In fact, the strongest argument for a right not to reveal a password is that it’s not the hidden data that are protected by the right against self-incrimination, but rather the admission that you know the password, hence are at least in some way in control of and responsible for them, that cannot be compelled. According to the Regulation of Investigatory Powers Act 2000 (that was apparently a banner year for civil liberties in the UK), “failing to disclose an encryption key” is an offence in itself. In 2009 a man was jailed for 13 months for refusing on principle to provide encryption keys to the authorities, despite the fact that he was not suspected of any crime other than not cooperating with the police.

I have encrypted volumes on my laptop hard drive — with old exam papers — whose passwords I’ve forgotten. I probably should delete them, but I haven’t gotten around to it, and maybe I’ll remember one of these days. Even if I did delete them, they’d still be there on my hard drive unless I took exceptional measures. So if customs officials ever took an interest in my laptop while I was entering the UK, I could end up in prison for up to two years. The only thing I could do to protect myself is either to destroy the hard drive, or have it erased, which is itself suspicious.

Unlike most other criminal offences, the offence of withholding a cryptographic key is impossible to prove, but also impossible to disprove. It is even impossible for anyone but the accused even to know whether or not there has been any offence. And if there has been no criminal offence — if the accused does not, in fact, know the key — there is no way to prove that. It is the democratic state’s version of the plight of the man being tortured for information that he does not have, so that he has nothing to offer to end the suffering.

Along these lines, I was wondering about the current state of the right to silence in British law, and there came a revelation in the form of the British authorities (oddly, the news reports are all vague about which authorities it was; presumably the UK Border Agency, but maybe agents from a secret GCHQ data-mining task force) detaining the partner of journalist Glenn Greenwald under schedule 7 of the Terrorism Act 2000. According to the Guardian,

Those stopped under schedule 7 have no automatic right to legal advice and it is a criminal offence to refuse to co-operate with questioning,

This is pretty frightening, particularly when these laws are being so blatantly abused to settle political grudges.

Papers, please!

I feel a need to sharpen the point I made here, about how the Tory need to pander in all directions at once has led them into an incoherent position we might call “the antifascism of fools“. On the one hand, we now have government agents patrolling the London underground, stopping “suspicious” people to demand they show their papers. On the other hand, the government will not actually provide people with the papers they need to show, because that would be tyranny. (They can get passports, but that costs about £80. On the other hand, deporting the poor might alleviate the shortage of affordable housing in London. I hear the Falklands are nice this time of year.)

It’s as though a government were to set up concentration camps and secret police, but run down the rail service because making the trains run on time is what fascists do. (Although, come to think of it, that’s not a bad description of recent developments in the US…)

Suspicious is as suspicious does

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This is an official government vehicle.

On the list of all-time great tautologies (though not quite as pithy as “It ain’t over til it’s over”) comes the comment of UK immigration minister Mark Harper, defending the government’s new policy of stopping foreign-looking people to check their immigration papers:

“‘They are not allowed to do it based on someone’s physical appearance. If, someone, when seeing an immigration officer, behaved in a very suspicious way, that might give us reasonable suspicion to question them,” Harper said. “It’s about how they behave, not what they look like. It’s not about their appearance or their race or their ethnicity.”

That sounds pretty clear: If they behave in a “very suspicious way” there must be a reasonable suspicion. Otherwise their way wouldn’t be very suspicious, would it?

One of the first things the new government did when it came into power was to cancel the previous government’s plan to introduce ID cards, because of fears that, well, people could be stopped on the street and asked to show them. The cards were dismissed as “expensive, intrusive“. I’m glad I’m a real foreigner. I have a card to show when I see an immigration officer and can’t resist behaving in a very suspicious way. British citizens who behave suspiciously (after seeing an immigration officer) have no recourse, and may find themselves waiting months to see an immigration judge.

Well, the US has had some success deporting unruly citizens to Mexico. Maybe that’s what Obama adviser Jim Messina has crossed the ocean to advise the Tories about.

New frontiers in child-rearing: How to (not) talk to your kids about fracking

The Guardian reports on a legal settlement, where a Pennsylvania family whose water supply was contaminated by gas drilling, received a payout for their now useless farm, and a gag order banning anyone in the family — expressly including the children, aged 7 and 10, from “ever discussing fracking or the Marcellus Shale”.

During the proceedings, the attorney representing Range Resources, Williams Gas/Laurel Mountain Midstream and MarkWest Energy, reaffirmed the gag order on the children. “I guess our position is it does apply to the whole family. We would certainly enforce it,” he told the court.

The parents in this case did warn of the limited reach of the court:

We can tell them, they can not say this, they can not say that, but if on the playground…..

I know I have enough trouble getting my own children to stop talking about oil and gas exploration on the playground. It’s hard to imagine any court being willing to enforce an order penalising people for discussing certain topics because of an agreement their parents entered into, but the mere threat (and legal expenses) might intimidate them from ever challenging it.

Imagine the potential: Fundamentalist parents could enter into gag orders with their church, forbidding the children from ever speaking about Darwin or evolution. Many parents would happily sign a gag order blocking their four-year-olds from discussing poopy pants or boogers.

And why stop at one generation? Just imagine if, instead of fighting for the loyalty of consumers, generation after generation, a company like Coca Cola could simply pay current consumers to commit themselves and all their descendants to never mention the name of Pepsi, or any other cola drink. And while we’re selling off the rights of our descendants, we might as well replace the whole problematic student loan market with selling off our firstborn children into slavery. (Perhaps they can be chained to desks in the university admissions office, forced to read through 80 thousand personal essays.)

The whole idea of gag orders disgusts me. Paying someone not to talk about a subject… Why does that remind me of something absurd?…

How do you tell the difference between eavesdropping and ineptitude?

So, apparently, the Nassau County (New York) Police have a “joint terrorism task force”, and they can monitor residents’ web searches in more or less real time. And they paid a visit to a family that had searched for pressure cookers and backpacks online, as well as having revealed interest in news about the Boston bombing. I’m not an expert, but I don’t think it’s a good idea to go telling everyone that law enforcement is monitoring the contents of web activity. Aside from the fact that the monitoring itself is probably illegal, revealing operational capabilities tends to get people stranded in the holding area of foreign airports, where Americans get stabbed in the back. And it doesn’t matter what your motivations were for revealing the information. (Pressure cookers? Really? The whole reason for using pressure cookers to make bombs is that there are millions of them around, a very large fraction of which will likely never be used to kill or maim civilians. And backpacks.)

The next Edward Snowden should avoid contacting a journalist directly. Instead, he can just tip off local law enforcement to an important national security journalist’s involvement in some nefarious plot, and then feed them with the appropriate keywords that he’s trying to communicate. He’ll probably get a medal.

The story, as reported by the aspiring terrorist herself, has some delightful details that sound like they came from Monty Python:

Meanwhile, they were peppering my husband with questions. Where is he from? Where are his parents from? They asked about me, where was I, where do I work, where do my parents live. Do you have any bombs, they asked. Do you own a pressure cooker? My husband said no, but we have a rice cooker. Can you make a bomb with that? My husband said no, my wife uses it to make quinoa. What the hell is quinoa, they asked.

Again, I’m no expert on interrogation, but I’m just going to hazard a guess that “Can you make a bomb with that?” is not the sort of question that frequently leads to actionable intelligence.