David Simon Misses the Point

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Ethan Gach

I write about comics, video games and American politics. I fear death above all things. Just below that is waking up in the morning to go to work. You can follow me on Twitter at @ethangach or at my blog, gamingvulture.tumblr.com. And though my opinions aren’t for hire, my virtue is.

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36 Responses

  1. Avatar Tod Kelly says:

    “If Simon’s (admittedly fictional) television series is any indication, the “bad guys” that the “good guys” are after aren’t stupid or backwards. They, like anyone else, adapt to conditions on the ground. If the police start culling records from pay phones, they’ll stop using pay phones, and then eventually move to pagers, and burners, and coded images, etc.

    My own intuition is that anyone dumb enough to talk even semi-candidly about plans to commit terrorists acts, or to try and connect with other would-be terrorists over, over the phone, through email, or via text, aren’t the ones planning the supposedly “existential” plots that these programs are meant to prevent.”

    Though I understand that what you’re saying is true, I’m not sure the point you’re making here. Is it that police and intelligence agencies should then cease attempting to prevent crimes/attacks, or that we should continue to use very old avenues we know aren’t used any more to prevent criminals/enemies of the state from developing more sophisticated processes?

    I like the fact that my computer has the most up to date virus protector installed, regardless of whether or not it will eventually become obsolete.Report

    • Avatar Ethan Gach in reply to Tod Kelly says:

      That unlike the minor cost of a virus protection program (in many cases free), I’d wager many greatly overstate the effectiveness of these intrusions vs. the abuses likely to result.Report

      • Avatar Shazbot5 in reply to Ethan Gach says:

        What abuses and how likely?

        I am worried that there is a slippery slope here, but it isn’t very slippery at all, and everyone is pretending as if it is as slippery as Dick Morris.Report

    • Avatar Will H. in reply to Tod Kelly says:

      That is probably the most interesting point of all, IMHO.
      Traditionally, our justice system is set up to punish acts after they occur.
      The shift to prevention of acts is something of a game-changer.
      I would say the basis is found in conspiracy law; that concerted efforts inherently pose significant risks to society. And in that view, it’s still sort of the old way of law enforcement after the fact.Report

      • Avatar Will Truman in reply to Will H. says:

        How is it different than a patrol car, or a stake-out? Seems to me that all three are an effort to find people in the midst of illegal activity. In the case of the NSA surveillance, if they’re conspiring to commit a terrorist act, they have already committed a crime.Report

        • Avatar Ethan Gach in reply to Will Truman says:

          I don’t know Will, how is it anything like a patrol car or stake-out?Report

          • Avatar Will Truman in reply to Ethan Gach says:

            Oh, there are differences (I support patrols and stake-outs, but am conflicted on this). But all three are about trying to find crimes in progress. So I don’t see how this is a departure on that front, like WillH suggests.Report

          • Avatar kenB in reply to Ethan Gach says:

            Well, there are some similarities. If a cop stakes out your house, s/he can see who comes to the door, who you talk to, and who you let in, but can’t hear your actual conversations (unless you’re shouting). That’s sort of like seeing whom you’ve called but not what you talked about.

            But obviously with the stake-out, the cop is seeing inherently public information, unlike with the cell phone records.Report

            • Avatar kenB in reply to kenB says:

              Rats, inconsistent who/whoms. I hate when I do that.Report

            • Avatar Trumwill Mobile in reply to kenB says:

              Ken, exactly. That’s the similarity and that’s the difference.Report

            • Avatar Scott Fields in reply to kenB says:

              Aren’t the cell phone records public information as well? Doesn’t the fact that this information is held by the phone company, a third party with no particular interest in my privacy beyond my happiness as a customer, make it no longer private to me?Report

              • That’s the uncertain part. The question is, what is Verizon allowed to do with that information? Are they allowed to sell who I call and when to other companies? Do they reserve the right to do so in fine print? Is there a reasonable expectation they would? If so, that would be a mark against the expectation of privacy. (And honestly, apart from all of this NSA business, something our government should look into, if Verizon is indeed selling such personal information to third parties.)Report

              • Avatar zic in reply to Will Truman says:

                I think this goes deep into the real territory we need, as a nation, to explore when it comes to privacy.

                Trends in the SC suggest privacy is given up when you engage a third party; so the expectation of privacy in a phone company would not exist because the third party handles the call. But there is a lot of state law about just this kind of privacy — if it’s legal to record a call without the other party’s knowledge, for instance. So with a traditional telephone, the water’s murky; though I believe that law enforcement is required to get a warrant before tapping a phone. (Is this state, federal law? Anyone know?)

                Health insurance is another interesting area here; HIPPA, I believe, excludes health insurance companies; they can trade your medical information. It’s your doctor who can’t trade it with another doctor, pharmaceutical salesman, or family member without your permission.

                But what about companies like Google? They’ve, potentially, got a record of every single internet search I’ve ever done on this computer, not to mention two or three computers back. That’s some seriously valuable marketing information; Google probably knows more about me then anyone except my husband. Do I have a right to know what these companies have in their files that is specifically about me? Do they have a right to sell that information, linking it to me?Report

              • Avatar Will Truman in reply to zic says:

                This is where I get a little bit right-wing, libertarian, or whatever. I would object to my insurance company selling my health information to Walmart. I’d have a much greater objection to it selling or giving that information to the government. It’s not even close.Report

              • Avatar Patrick in reply to zic says:

                It is federal, not state law, to tap a phone to generally record conversations without either party’s knowledge or consent outside the public. Title 18, Chapters 205/206.Report

              • Avatar zic in reply to zic says:

                Patrick, you may be right that it’s federal for ‘taping.’

                There are layers of state law here, too. When I reported, I’d often record my interviews; it made the process quicker. But the general advice was to always be clear that the interview was being recorded, because in some (not all) states, recording you own phone conversation without the other party’s knowledge is against the law. That is, in part, what I referred to. The point being that legally requiring both parties have knowledge of a recording suggests there was/is a level of privacy involved at the state level.Report

              • Avatar zic in reply to zic says:

                And it occurs; if you’ll remember, this was part of the controversy surrounding Clinton’s impeachment; there was a lot of debate about the legality of what Linda Tripp did when she recorded her phone conversations with Lewinsky.Report

              • Avatar Patrick in reply to zic says:

                Oh, yes, that’s a civil matter, though, IIRC. For example, it’s illegal to record a conversation in California unless both parties are informed, or there’s no “reasonable” expectation of privacy.

                If you’re talking about limits on what *law enforcement* can do, that’s all federal law.Report

              • Avatar Scott Fields in reply to Will Truman says:

                I don’t know about Verizon, but the Privacy Policy for my AT&T service states clearly that they may aggregate and anonymize data about me and share it with outside parties.Report

              • Is that the same nature in which they present the data to the government? My impression is not, that the information they are giving to the government is traceable back to us. Am I wrong about that?Report

              • I should add, I’m not married to the notion that there is a legal (or legally enforceable) expectation of privacy here. On the merits of the policy, I am conflicted. But even if they end up legally in the same category, I don’t consider the information to be “inherently” as public the same way that what I do on my front porch (or CCTV downtown) is.Report

              • Avatar Scott Fields in reply to Will Truman says:

                My understanding is that the phone companies are providing metadata – calling number, called number, duration – but I am unclear on whether that information is anonymized.Report

              • Avatar trumwill mobile in reply to Will Truman says:

                Big difference, one way or the other.Report

              • Avatar Stillwater in reply to Will Truman says:

                See, I have a problem with CCTV as well. Well, not in the case of a private firm using CCTV as a means to defend their own property. One thing I would have a problem with is private firm giving those recordings to gummint without a court ruling.

                That’s a big difference to me. THe state thinks it’s justified in recording individual behaviors and keeping a record of it (the length of time doesn’t really matter) on the premise that there is no right to privacy when engaging in public actions or exchanges. But that seems to me to reverse things: the mere fact that an action occurs in public doesn’t give the state the right to record or monitor it without a warrant.

                Now, independently of the history of legislation and jurisprudence on this, I think the right to privacy (if there is such a right is still functional) acts as a constraint on the state. So the state – it seems to me – has to meet a burden to justify why it’s permitted to record public actions in which there is no prior and well established evidence of criminal activity.

                The thinking on this seems to have gone upside down.Report

              • Still,

                That’s a respectable position. As a policy matter, we may only slightly disagree. My position would be:

                1. I have no problem with Bob’s Car Lot voluntarily handing over its outwardly-directed security footage to the police.

                2. I’d have more of a problem with a law stating that Bob must turn over that evidence with or without a warrant. (A gray area would be if there was a reasonable belief that the evidence was destroyed in the time it would take to get a warrant. Not sure what I’d propose there.)

                3. Somewhere in between #1 and #2 would be the government having its own CCTV cameras. It depends largely on the particulars.

                However, these are statutory questions. As a matter of constitutional protections, I don’t think such cameras (at least, #1 and #3) would violate our fourth amendment rights.Report

              • Avatar Stillwater in reply to Will Truman says:

                As a matter of constitutional protections, I don’t think such cameras would violate our fourth amendment rights.

                Then it would be good to tighten them up, no?Report

              • Avatar Will H. in reply to Scott Fields says:

                No, the phone records are not public information.
                I ran into this when I tried to get call logs for a line that I closed. I couldn’t do it.
                They told me the only way I could get the call logs was through a subpoena.

                There’s something of a presumption here, one that’s important to distinguish.
                Expectation of privacy is that of the one party, and not that of the other.
                The reason that the government can get their hands on those records in the first place is because caller ID already identifies the caller.Report

              • Avatar Will Truman in reply to Will H. says:

                Could you elaborate on that last paragraph?Report

              • Avatar Will H. in reply to Will Truman says:

                Basically stated, expectation of privacy is lost or diminished once private concerns are shared in non-privileged communication.
                The fact that person you’re calling can see your phone number means that there is no protected privacy interest in placing the call.
                Supposedly, though I haven’t seen this, certain exceptions would apply; such as if you’re calling your attorney. But then, I believe that instance would be the same as seeing you speak to your attorney in a hallway, as opposed to standing near for the purpose of eavesdropping.

                I was going to e-mail this to you, but this is as good as place as any.
                Here’s an overview from the Congressional Research Service on “Privacy Protections for Personal Information
                Online
                .” Very informative, though a bit outside the scope of the present discussion.

                Here’s the index for the site, where you can find all sorts of useful (and not-so useful) information. Just because I appreciate your Linky Friday posts, even if I’m too busy reading to comment.
                But it’s definitely a good site to bookmark for later reading.Report

              • Avatar kenB in reply to Scott Fields says:

                Aren’t the cell phone records public information as well?

                To some extent I’m repeating what others have said, but — no. If I ask AT&T for your call history, they’re under no obligation to give it to me. What they can and can’t share is governed by the contract you signed with them — perhaps they could make those records public (and not just shared with certain other private parties) if they chose and if that were permitted by the contract, but they have a pretty strong incentive not to do so.

                As for the difference between Verizon or AT&T having this data and the government having it, I’d think that that’s pretty obvious — Verizon and AT&T don’t have any police power at their disposal. They can search my records as much as they want, but they can’t lock me up because of what they find.Report

  2. Avatar Sam says:

    The best quote from that article is this:

    We want cake, we want to eat it, and we want to stay skinny and never puke up a thing. Of course we do.

    Seems pretty damned accurate to me.Report

  3. Avatar Scott Fields says:

    It seems to me that some parameters are needed for this discussion. If this is true…

    Likewise, allow individuals, or institutions, to act in secret for long enough and the abuse will come.

    …are no secrets allowed? If it’s agreed that some secrecy is necessary, just how much secrecy and who gets to decide?Report

    • Avatar Patrick in reply to Scott Fields says:

      We start by saying, “any program which monitors, intercepts, or tracks records of private citizens by the government must, in addition to all other safeguards and authorizations, track every member of Congress by the same methodology, and all records of serving members of Congress will be made public without warrant.”Report

      • Avatar Stillwater in reply to Patrick says:

        Exactly Patrick. On this issue in particular, we start there. Then, as arguments are made justifying movement away from that starting point, we evaluate them on their own terms.Report

      • Avatar Scott Fields in reply to Patrick says:

        I don’t disagree with that concept, Patrick, but it is getting away from the question I was asking. According to the administration, for the data collecting programs being discussed, there are checks and balances on what the Executive is doing by the Judiciary and Legislature. From my read of the OP, Ethan is taking issue here with the degree of secrecy because the judicial check (the FISA court) is top secret and the legislative check (the Congressional Intelligence committees) is constrained by the oaths of secrecy they’ve made as well. Abuse is inevitable, because of the secrecy of those we’ve elected or had appointed prevents any control.

        So my question goes to what level of transparency is needed before faith with the checks on abuse is restored? It’s the public debate we should have. I think Ethan is right that a greater level of transparency is needed, but I sure don’t think some 29 year old computer contractor should get to decide what that level of transparency should be.Report

        • Avatar Stillwater in reply to Scott Fields says:

          I don’t think Patrick meant the comment to be the end-point of what constitutes adequate transparency. He meant it to be the beginning of the discussion. Personally speaking, I think it’s a good place to begin.Report