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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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78 Responses

  1. Avatar Sam says:

    1. Yes, the American public did authorize this, specifically by voting for a Congress that doesn’t have a majority willing to give a shit about these sorts of things.

    2. James Sensenbrenner is angry because it never dawned on him that the wrong kind of person (read: a politician he didn’t personally support) could get into the White House. Let’s not pretend that we’re dealing with a human being whose principles extend any farther than his own desire to see Republicans in positions of power. His objections should fall on the deafest ears imaginable.Report

    • Avatar Jason Kuznicki says:

      1. Yes, the American public did authorize this, specifically by voting for a Congress that doesn’t have a majority willing to give a shit about these sorts of things.

      If that’s what passes for authorization — and not just post-hoc rationalization of something we now might not be able to undo — well then, why do we bother with all that quaint old civics-class stuff, about petition, deliberation, passage, signing, and the like?

      Do you really mean to argue that we have in fact authorized [fill in the blank with all other programs we don’t know about but might potentially imagine eventually existing], regardless of how big that blank turns out to be?

      In other words, would you say that democracy should be defined as whatever government action the people can be kept in the dark about — until it’s too late?Report

      • Avatar Sam says:

        We bother with the quaint old civics-class stuff because it makes us feel better, not because it has any actual meaning in our political system.

        And I’d define democracy as what it is: citizens choosing representatives because the other options seem even worse.Report

      • Avatar Kimmi says:

        NSA’s Christmas List has been out there for forty years.
        Isn’t that enough time for us to deliberate about it?Report

  2. Avatar zic says:

    Jason, some days (despite how I like to disagree with you), I agree with you so much that it verges on hero worship.

    This might be one of those days.Report

    • Avatar North says:

      I also have no disagreement with any of this. Heck, I hope there’s an absolute cacaphony of bipartisan howling about this. Only by making these kinds of intrusions politically toxic can any of the politicians in DC be expected to move out of their hypercautious crouch on the subject of anti-terrorism.Report

  3. Avatar Burt Likko says:

    The question might be “Is the power inherent in gathering all of this data and having it accessible for algorithmic searches being used for evil?” and if so, the answer is “Well, we already know this administration has used far less intrusive investigative techniques to harass its political opponents.”

    The better question is “Why isn’t privacy understood as an inherent good?” Why should we need to even explain the ill effects of its loss, when its loss is, inherently, an ill effect?Report

    • Avatar Vikram Bath says:

      “Why isn’t privacy understood as an inherent good?”

      My best guess is that many people feel they have a good chance of being killed by terrorists or other criminals. It’s a very salient threat. I don’t think they have a similarly horrifying image of losing their right to privacy. They have difficulty imagining a situation in which they are taken advantage of by an abusive government.Report

    • Avatar trizzlor says:

      The better question is “Why isn’t privacy understood as an inherent good?” Why should we need to even explain the ill effects of its loss, when its loss is, inherently, an ill effect?

      Most of the data that PRISM can collect is available because we have already willingly given up our privacy to the private sector. We seem entirely comfortable with trading away privacy in return for free services to Google and Facebook, why is it such a leap to trade away privacy to the government in return for big-data analysis that could potentially keep us safe?

      Is there any known instance where the government has done something malicious with this data that someone in the private-sector could not have done?Report

      • Avatar Shazbot5 says:

        This is a darn good point.

        Not sure I agree, but I would be interested to hear how those who disagree vehemently would respond.Report

      • Avatar BlaiseP says:

        There’s plenty of evidence from the J Edgar Hoover days.

        Here’s the difference. The credit agencies are obliged to let me see what they’ve collected on me. I know what Google is collecting on me. I also run the Collusion plugin for Firefox: I know what’s been handed off to other sites.

        No such provisions exist for what the NSA has on me. It’s not covered by FOIA. Even the backlog for FOIA requests is enormous.Report

        • Avatar Kimmi says:

          … ya, huh. you think you know what corporations collect on you?
          maybe if you’re lucky some of ’em will tell you.

          Lotta illegal data out there, lotta stuff nobody’s never agreed to.Report

    • Avatar LeeEsq says:

      If I remember correctly, I think that the generation that has grown up with the Internet and social media place less value on privacy has a whole because of the nature of the Internet. If you engage in sexting than your sense of privacy is probably not going to be great. I think that a sense of privacy is closely aligned with a sense of inhibition, that there are something’s that you don’t want people to know. With no sense of inhibition there is no value given to privacy.Report

  4. I just want to mention how much I loved that you posted this on the same day I posted something about wishing some people would go to greater lengths to hide certain things.

    The symmetry, it delights me.Report

  5. Avatar NewDealer says:

    To expand on Sam’s point: What if many or most Americans really just don’t care about civil liberties? Or they care a lot less than us die-hard civil-libertarian wants them to.

    Isn’t there an old-saw of a joke about some boorish uncle who dismisses the 4th Amendment by saying stuff like “The police can come search me and my house all they want! I have nothing to hide!”

    What if many people sincerely thought like this? What if most people take the government at face value when they say this data helped prevent a subway bombing from happening?

    I’m not saying I agree with this view but it is something we should contend with. There is an unfortunate stance for many people to see certain parts of the Bill of Rights as pertaining to “criminals” but not themselves as American Citizens. It seems we would need to fix this.Report

    • Avatar Sam says:

      The marketplace of ideas has thoroughly rejected the idea of civil rights being important. It has rejected it throughout this nation’s history and often with the explicit backing of the same people going into conniption fits about PRISM. Why are we busy pretending that this nation is something that it isn’t?Report

    • Avatar Jason Kuznicki says:

      Sure — what if?

      Now zip back to 1950. Your boorish uncle still has nothing to hide. Me? I’ve got way, way, way more to hide.

      Is it still cool not to care?

      I’m inclined to think that one might hold the “I just don’t care” viewpoint sincerely, but it’s not terribly good citizenship to do so.Report

      • Avatar Sam says:


        Your rights (as a gay man) meant jackshit back then just as your right not to be unreasonably searched in various ways (as a citizen) means jackshit today. The nation goes along with it because the nation does not care about the fact that your metadata is being sifted through, just as the nation did not care about the fact that you were being harassed for being gay 50 years ago.

        There’s the fiction of our nation and there’s the reality of it and I’m baffled that we spend so much time only one of those two.Report

        • Avatar North says:

          Even allowing you’re correct here Sam (which I don’t necessarily think is true), what do you do if the nation doesn’t care? You protest about it, make noise and argue your point to move the public (and the young, especially the young) in your direction and then one day maybe the nation will care about it.

          So Jason’s post works for me on either level.Report

          • Avatar Sam says:

            90 percent of this nation says they want background checks on all gun purchases and we can’t get that done. That’s with marketable and obvious victims making the case.

            I’m all for a protest movement. I’m all for advocacy. But it ain’t going anywhere, mostly because the next Boston Marathon bombing will be a bigger deal than a thousand marches on Washington, and because the voting public will always take the one more seriously than the other.Report

            • Avatar zic says:


              90 percent of this nation says they want background checks on all gun purchases and we can’t get that done.

              I question the flow of your logic here. People say that want background checks; but the not-getting-that-done stems from 1) the ferocity of the gun-rights crowd (which shows the power of a well-organized campaign to influence legislators on an issue) and, 2) the invasion of privacy such background checks require.

              The lack of getting background checks (or gun control, in general), so it seems to me, lines up more with dismantling the security state, in favor of turning security over to the individual, along with that person’s privacy. But I’m more then happy to be convinced I’m wrong on this.Report

              • Avatar Sam says:

                The issue with background checks has to do with political reality: the NRA will be much more aggressive than anybody else will in terms of punishing those who stray from the particular line. Its the politics that matter here, nothing else, and certainly nothing like “rights.”

                Ask yourself: are barely understood “invasions of privacy involving something called metadata” as convincing as, let’s just say, the immediate aftermath of the Boston Marathon bombing? Because those who wish to continue these policies will always have those horrific events to point to; those who wish to stop these policies will always be left claiming that rights have been violated without anything so illustrative.

                Or, to put that another way: suppose we discovered that these tactics had only been used on people with names that conceivably seemed like they might have been Middle-Eastern in origin. Would James Sensenbrenner be losing his mind then?Report

              • Avatar zic says:

                I drove down to Boston the Friday after the bombing; the city was on lockdown.

                From what I can tell, people were peeved, but in a gentle way, they understood the need to apprehend criminals. I was also there when the lockdown was lifted before the criminals were apprehended. And I was there after the younger brother was finally taken out of a boat in a backyard about a mile from where I was staying.

                I do not think people’s reactions are a simple to events as you make them seem. I saw the security state swing into action; and it is a frightening thing to see streets swarm with men in military garb and guns; often outnumbering the civilians.

                But the funny thing about all this is that it was not the security state that worked here. A security camera, to prevent store theft, provided the images of the bombers. People who knew them ID’d them from those images. The owner of the boat called police.Report

              • The NRA’s ability to aggressively punish those who stray from the party line is almost entirely a function of the intensity of its constituency’s willingness to execute that punishment.

                Sure, gun manufacturer money helps with that. Then again, I can’t imagine that the telecoms are terribly thrilled with the notion of turning over this amount of data to the government.Report

              • Avatar Sam says:

                Why wouldn’t they be thrilled with turning over data? They know customers have nowhere to turn.Report

              • 1. I don’t know how expensive – or cheap – it is to do this, but it surely isn’t free.
                2. I can’t imagine that the telecoms are thrilled that the government has that level of data to scrutinize. Surely, the telecoms have plenty of things they’d prefer the government be unaware of as well.

                And, again, the main point here is that the NRA’s power stems from the fact that its constituency is highly active and committed.Report

              • Avatar Barry says:

                “Sure, gun manufacturer money helps with that. Then again, I can’t imagine that the telecoms are terribly thrilled with the notion of turning over this amount of data to the government.”

                (replying to Mark, below, as well, since the comment system is messed up).

                They are (a) quite likely to be paid for it and (b) may reap a second benefit in terms of regulatory goodies.Report

              • Avatar Sam says:

                And what to the telecons get in exchange for turning over data? Regulatory support. It’s worth it or they wouldn’t do it. If customers started abandoning complicit companies, those companies might change their minds, but until we see that happen (and it WON’T happen), why wouldn’t the companies play ball?Report

              • Avatar zic says:

                The telecoms may not get a single thing, except expenses.

                What they get by cooperating in both turning over the data and remaining silent is their freedom; they’re not arrested for breaking the law.Report

              • Avatar zic says:

                edit: I said: The telecoms may not get a single thing, except expenses.

                I meant, even, not except. They may have had to do this at their own expense, without reimbursement. Which means their customers paid for it.Report

              • Given that in, at minimum, this case, the data was turned over only after a court order, the idea that this is something the telecoms actually want to do is pretty laughable. If it was something they were doing voluntarily at the request of the administration, or as a result of some sort of quid pro quo with the administration, there’d be no court order.Report

              • Avatar Mad Rocket Scientist says:

                The issue with background checks has to do with political reality

                The reality is that 90% of people only care a little bit about background checks. That 10% who oppose it, they care a lot, way more than the 90% who answer public opinion polls or fill out online petitions. That 10% will be writing letters, making phone calls, and sitting in politicians offices making damn sure they know how much they care & that their vote hinges on it.Report

      • Avatar NewDealer says:

        Dude, I’m your side.

        My argument and question is how do we as civil libertarians convince the majority that civil liberties matter!Report

  6. Avatar Tod Kelly says:

    Dammit Jason, there’s no pic which means I have to put one up, and I am REALLY tempted to put up a picture of sausages to go with the headline.Report

  7. Avatar zic says:

    I’ve been wondering abut the Obstruction of Correspondence, which applies to mail taken from the US Postal Service before it’s delivered to the intended recipient;

    Whoever takes any letter, postal card, or package out of any post office or any authorized depository for mail matter, or from any letter or mail carrier, or which has been in any post office or authorized depository, or in the custody of any letter or mail carrier, before it has been delivered to the person to whom it was directed, with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same, shall be fined under this title or imprisoned not more than five years, or both.

    The intent is clear; to protect the privacy of the content of mail from the time the US Postal Service receives it to the time it delivers it to the recipient.

    I sort of think we should consider the internet a similar service, and apply the same rules; and that those rules should also apply the the US Government.Report

    • Avatar Michael Cain says:

      The intent is clear; to protect the privacy of the content of mail from the time the US Postal Service receives it to the time it delivers it to the recipient…. I sort of think we should consider the internet a similar service, and apply the same rules; and that those rules should also apply the the US Government.

      Two nits — or maybe a bit bigger than that.

      The internet is privately owned and operated, like UPS and FedEx. I’m not sure that they’re subject to the same privacy rules that the USPS is. I suspect that there’s language in the contract that they can open your packages and overnight letters if they feel it’s necessary. I know that they maintain a huge amount of meta-information about their customers that the USPS doesn’t.

      Mail contents can’t be examined in detail without damaging the container. Packets, OTOH, can be transparently copied, recorded, and manipulated. “Expectation of privacy” becomes relevant at some point. Case law is steadily building up the position that you have no expectation of privacy if you transmit unencrypted packets over wifi networks — not only can Starbucks legally look at your unencrypted packets, but Starbuck’s customers can do so. Acting on the contents may be illegal, but simply reading them isn’t.Report

      • Avatar zic says:

        The internet is privately owned and operated, like UPS and FedEx.

        Hmm. Who owns it? Verizon? Time Warner? Google? Who?

        It’s seeds rest on a network used by hospitals and universities to facilitate research communication, and that was federally funded. My husband wrote one of the first email programs for that early internet, it was used at Harvard Medical School.

        Yes, many of the bits and pieces are privately owned; some are publicly owned. But in nearly every case, you can get around any given obstacle/private ownership via another route. And people who value internet freedom actually put a lot of effort (and equipment) in play to continue that many-roads network.

        I’m not sure it’s right to say the interent is privately owned; rather, it’s cooperatively owned; some parts public, some parts private, and much of it donated for the greater good.Report

        • Avatar Will H. says:

          I’ve looked into this a bit.
          Electronic communications have to travel across state lines at some point to fall within federal jurisdiction.
          But the law comes from the very same source.
          In fact, all e-mails used to fall under the “postcard rule;” that there is no more expectation of privacy in an e-mail than with a postcard.
          Metadata is the equivalent of the address information on the back of the envelope. No expectation of privacy there.
          Expectation of privacy for the sender of an e-mail, like that of a letter, ends when the recipient receives it.
          And for some reason I don’t exactly remember, e-mails older than 6 months are not considered to be “in storage;” though there are exceptions.

          I, personally, have been involved in a court case with Yahoo. In fact, I was on the phone discussing a settlement offer earlier today.
          Yahoo put a cookie on my laptop to track which computer my e-mail account was being logging into from. When I deleted the cookies in the browser, it brought up the security questions.
          One of the security questions is, “Where did you spend your honeymoon?”
          I never went on a honeymoon.
          Because it wouldn’t let me select another security question, I took it as a nonsense question, and gave a nonsense answer.
          Apparently, that was nine years ago. I don’t remember whatever text string they’re looking for these days.

          But the metadata is my trump card.
          I e-mailed the fellow that I sent the last e-mail to, and he sent me the metadata from that e-mail.
          Comparing that to the metadata of the communications with Yahoo customer service will identify the sender (somewhat).
          And the fact that it’s not private means that they have to answer a subpoena for it.

          Not unusual for Yahoo to take actions against account holders. Compare the Amejian case from Mass.

          The whole kerfluffle with government dragnets beaks down to about three discrete issues, and the privacy of metadata, IMHO, is the least of concerns.

          Just as there’s someone who works at the post office that has been reading the address information of every letter you send.
          Not a big deal.

          Now, if that someone were storing that information, that gets a bit creepy.Report

          • Avatar zic says:

            Fascinating. I hope you’ll let us know what, if anything, happens with the Yahoo incident. (Good name for a novel.)

            On the Post Office — every hand-addressed letter I get now has a strip of code for optical readers. When that strips gets printed on the letter, I presume the letter is being scanned; I see no reason why that scan wouldn’t go into the data being collected.

            I’ve been told I’m nuts and paranoid for wondering about this, too. But it would not surprise me; the outside of that envelope is not private.Report

        • Avatar Shazbot5 says:

          “Who owns it? Verizon? Time Warner? Google? Who?”

          Al GoreReport

  8. Avatar MikeSchilling says:

    the author of the USA-PATRIOT Act declares the current state of affairs an “abuse” that “Congress never intended.”

    By which he means either that he never intended to see another Democratic administration or that he never intended the powers his bill specifically authorized to be used against non-Muslims. Sensenbrenner is exactly the sort of person who needs either to explain why it wasn’t a problem when Bush and Cheney did worse or STFU.Report

    • Avatar Jason Kuznicki says:

      He very clearly intended the powers of the act to be used against non-Muslims. He most certainly didn’t imagine that they would be applied to all citizens at all times in perpetuity.

      We could get into the legislative history if you like, but I suspect you remember the debates from 2001 as well as I do, and you know very well that no one was proposing such a widespread surveillance.Report

      • Avatar MikeSchilling says:

        He most certainly didn’t imagine that they would be applied to all citizens at all times in perpetuity.

        Which is why he built safeguards against that into the Patriot Act.

        In Sensenbrenner’s defense (and I didn’t realize this until I started looking, in response to Jason’s comment), he did object to Bush’s warantless wiretap program, though, as far as I can tell, ineffectually.Report

    • If him hypocritically complaining about it will help to get it overturned, then the last thing I want is for him to STFU or be consistent.Report

  9. Avatar Jim Heffman says:

    I don’t close the curtains so that you can’t see me.

    I close the curtains so that you don’t have to see me.

    And maybe, on some days, I don’t care that you can see me. Maybe it’s the Pride Parade, and you seeing me is the whole point.Report

  10. Avatar Francis says:

    If our elected representatives are so shocked and so in the dark, then we should be seeing a veritable fountain of bills being proposed by House Republicans to restrain the Administration, shouldn’t we? After all, there’s nothing a politician likes less than someone else having a secret.

    Since we’re not seeing such behavior, I’ll continue to operate on the (well-founded) assumption that 99% of what’s being said by politicians on this leak is intended for partisan advantage.

    And the next time primary season rolls around (this winter? early next year?), let me know how many people get any traction running against an incumbent of either party on the promise of rolling back the USA PATRIOT Act, or even holding hearings on the scope of what the NSA collects.Report

    • We’ll see. It’s still early, and at this point I would expect to hear some concern, possibly from new quarters, and that’s just what’s happening. Expecting legislation to suddenly appear overnight is a bit much.

      There is this, though:

      • Avatar Russell M says:

        Why is expecting a bill to appear overnight a bit much? the AUMF and Patriot act formed in mere days after 9/11. if the gov knowing that my phone # called another Phone# and can the NSA has a copy of everything that happens on the internet is such a bad thing (which i am entirely unsure of either way) then why cant we get the same speed of action we get when our people die?

        or is actually writing a bill to do something beyond the will of congress? is wining about these Entirely Legal Actions the only action congress can take? because doing their jobs is hard or something?Report

        • Avatar BlaiseP says:

          Heh. Here’s what will happen. I’m old enough to remember the Church Committee, which would lead to the creation of the FISA Court. Oh the harrumphing! Oh the pulpit-thumping! And guess what — everything these jamokes are doing over at NSA, they’ve been doing it for years. It’s just been a question of technology: now that everything’s gone to packet switching, it’s just gotten easier and more centralised, so now they can do it more effectively.

          The government will never, ever return a right to the people, once they’ve taken it away. The Church Committee would lead to an entire generation of right-wing bellyaching about how Libruls were Destroyin’ Our Nashnul Deefents. Bush43 rode roughshod over our civil liberties, not a peep from the same folks. But let someone with a conscience appear and expose the whole rotten, squirming thing, I can predict the outcome with absolute certainty, exactly the same response as we got when Christopher Pyle said the US Army was spying on civilians. Much outgassing from the usual suspects and no substantive reforms.Report

          • Avatar Kimmi says:

            guvmint ain’t killed the folks trying to carve out new rights… yet, at least.Report

          • Avatar Russell M says:

            i guess i still have a basic faith in our government and that the will of the people will prevail in the long run. and at least the Obama administration is following the letter of the law. progress of a sort.Report

  11. Avatar trizzlor says:

    Hiding things is a good bit of what makes civilization both possible and pleasant.

    The data that PRISM collects has by definition already been shared with a private-sector company such as Verizon or Google or Facebook … so it is already not hidden. I’m sympathetic to the argument that the government has the guns and Verizon doesn’t so the former is more ripe for serious abuse, but that’s doesn’t seem to be your main argument. Rather, this is a broader claim about the cultural value of hiding things when, in practice, the only people at risk from the public sector are those that already sold off their dirty laundry to the private one.Report

  12. Avatar Damon says:

    I found it funny that the poll results I heard about reversed with Dems supporting what they once got their guy in power. Seems as long as “you guy” is in charge, it doesn’t matter. Typical.Report

  13. Avatar Matty says:

    I have things to hide.

    No, I won’t tell you about them. I’m hiding them.

    I was once at a corporate event where the ‘ice breaker’ was to announce something no one in the room knew about you. It got to me “So tell us one of your secrets”
    “You do know what the word means don’t you?”Report

  14. Avatar NoPublic says:

    Although I’m not generally in favour of this data collection, at least in the context of the Verizon data I don’t see how it isn’t functionally equivalent to a pen register setup and therefore not protected by the 4th amendment under Smith v. Maryland.

    IANAL, so maybe someone who is could inform me?

    (And count me in on the list of people that’s not buying how Sensenbrenner is Shocked! Shocked! about this. Anybody who read the Patriot act (all 1 of them who voted against it) knew that this was not even a sticky slope away.)Report