The NSA and Privacy: Why Conservatives Should Not Be Sanguine


Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at

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170 Responses

  1. Avatar Jaybird says:

    Dude, Republicans are pretty sure that they’re going to get the White House in 2016. Why in the world would they want to abandon this power before even tasting it?Report

    • Avatar BlaiseP in reply to Jaybird says:

      These are the same people who want to shove ultrasound probes into ladies’ hoo-hoos and maintain the extrajudicial confinement of uncharged prisoners at Gitmo. The very idea of these Conservatives harrumphing about PRISM is darkly hilarious. These bastards don’t trust the American justice system.Report

      • Avatar Jaybird in reply to BlaiseP says:

        In defense of the Devil, I’m pretty sure that the Republicans who called for ultrasounds thought they were calling for the “run a thingy over the lady’s belly” ultrasound rather than the “put stuff in the lady” ultrasound.

        I base this on the probability of any given Republican to know that there’s more ultrasounds than the ones you see in the movies on the television.Report

        • Avatar BlaiseP in reply to Jaybird says:

          If they’re ready to ram a nasogastric tube down some wretched Gitmo Prizner, you can bet your life they’re ready to give our Double X citizens the ol’ What For in places that maybe the Gummint shouldn’t be allowed to look. Both reveal a certain tastelessness, bad manners, a prurience which belies their talk of Family Values and high-minded rhetoric about ” the relationship between man and state”. The relationship between Women and the State, well, that’s different.Report

          • Avatar Jim Heffman in reply to BlaiseP says:

            We’re talking about a governing body that didn’t know what “incandenscent” meant or why it would be a big deal to ban lightbulbs of that variety.Report

            • Avatar Stillwater in reply to Jim Heffman says:

              There’s just no excuse for a Congressperson to not understanding the implications of their own bill. It’s like that (vaguely recollected) story of a guy Down South who proposed a Personhood bill making it illegal to kill a fertilized egg (conception!) and responded to the pushback by arguing (publicly!) that taking the pill would still be legal because the pill – as everyone knows – is a “contraceptive”.Report

        • Avatar Russell M in reply to Jaybird says:

          in these cases i dont think stupidity should be an excuse.

          “oh you mean that anti-abortion law we passed means a doctor has to shove a magic medical wand up your hoo-ha before allowing you to make a personal medical decision? well too bad jebus cries when you do that”

          and if the morons passing and signing these bills dont know that they more or less mandate a tran-vaginal US then they need to stop passing laws on things they dont understand. or maybe just learn what they are doing.

          but i understand governing is hard. maybe better to just let us democrats do it since we enjoy it so much?Report

    • Avatar Burt Likko in reply to Jaybird says:

      1. Who’s to say they didn’t? They had the White House from 2001-2008.

      2. Hasn’t it been fascinating to watch both parties cleave over this? Odd for me to look at pro-PRISM Republicans and see principle, but there is principle there: the principle that the government and security win over privacy.

      3. Republicans who think they’re getting the White House in 2016 are about two years too early to start making that prediction. As are Democrats who think they’ll hang on to it. The identity of the eventual strong candidates is going to matter a lot and that’s way too amorphous for us to do more than speculate now.Report

      • Avatar Jaybird in reply to Burt Likko says:

        the principle that the government and security win over privacy.

        Here’s my suspicion: PRISM hasn’t been responsible for catching anybody. The handful of folks who have been caught would have been caught without PRISM’s assistance.

        From there, it’s pretty easy for me to get to “the point of PRISM is other than security.”Report

        • Avatar Will H. in reply to Jaybird says:

          Bu . . . bu . . . but . . . More than twelve terrorists plots have been exposed since I switched from the salted to the unsalted butter.
          How could such a thing be a coincidence?Report

          • Avatar Burt Likko in reply to Will H. says:

            Unsalted butter misses the point completely.Report

            • Avatar Will H. in reply to Burt Likko says:

              The point is: How do we know the terrorists aren’t after our high-quality American sodium?
              If they’re really all that secretive, maybe they’ve tucked this tidbit away for the grand finale.

              How many years have street gangs been around?
              With all this intelligence available, why haven’t the Crips been put out of business for good?

              It’s the same Keystone Cops, different uniform, trying to squeeze the salt out of my unsalted butter.
              It keeps falling through their fingers.

              Remember the van bomb in NYC?
              Taxi driver caught that one.
              The high-tech American ingenuity of placing a cab driver in a bright yellow vehicle.

              Doubtless, placing bright yellow cabs all over the place to stop terrorists might be a bit intrusive, but where it’s got the electronic eavesdropping beat is that it seems to be a method that really, really works.Report

        • Avatar Barry in reply to Jaybird says:

          “From there, it’s pretty easy for me to get to “the point of PRISM is other than security.””

          (my apologies if people have read this before) There’s a story about how J. Edgar Hoover would have a one to one personal briefing of newly elected/appointed people in the Federal government. The ostensible purpose was to help them understand the good that the FBI did. During the briefing the person would be given an idea of just how much information the FBI had on that person, their spouse, family, friends and business associated.Report

    • Avatar David T in reply to Jaybird says:

      They may be pretty sure they’ll get the White House back in 2016 but they were just as sure about 2012, and the polls don’t really bear them out. See, e.g., (if Republicans can’t win Florida with a presidential candidate from Florida, they can forget it).Report

  2. Avatar J@m3z Aitch says:

    What’s the difference between a “sacrifice” and a “tradeoff”?

    Your costs are tradeoffs; my costs are sacrifices.Report

  3. Avatar BlaiseP says:

    I’m only surprised it took this long for PRISM to come to light. How tiresomely I repeat myself: PRISM etc has been entirely lawful since Smith v. Maryland, 442 U.S. 735 (1979)

    Attempting to paint Obama with this tarbrush goes nowhere with me. In 1979, Barack Obama was graduating from high school and going to his senior prom. The President has nothing to do with this PRISM situation. Thank Justices Blackmun, Burger, White, Rehnquist, and Stevens.Report

    • Avatar Mark Thompson in reply to BlaiseP says:

      PRISM is a joint Bush-Obama project, but its lawfulness is not, so far as I know primarily premised on Smith, though I could be wrong about that. In this regard, PRISM needs to be distinguished from the “metadata” story that broke the day before about tracking domestic phone calls. PRISM allows the NSA to actually view content – not just “pen register” style metadata – of private internet communications as long as the NSA determines there is a greater than 50% likelihood that one of the parties to the communications is not a US citizen. Needless to say, this is inherently going to entrap a lot of false positives of communications between American citizens.

      Regarding the metadata issue, it’s also important to keep in mind that, while its collection is clearly not considered a Fourth Amendment violation under Smith, the objection to it is mostly focused on the breadth of the data collection. While Smith contains no limitations on its holding that pen register data is not protected by the Fourth Amendment, I think (to the extent he’s referring to this program rather than PRISM) Tim is correct to point out that the government’s willingness and ability to collect this kind of data not only without probable cause, not only without a mere reasonable suspicion, but without any suspicion whatsoever is a new and significant alteration of the relationship between Americans and their government.

      While even this program started with Bush rather than Obama, the fact is that it’s only now being exposed during Obama’s tenure, and as such it is presently Obama that is its most important proponent, as well as the individual with the greatest ability to put a stop to it.Report

      • Seems more like a new but insignificant amendment to an already presumed general relationship between Americans and their government. It appears that the extreme overwhelming majority will never experience the slightest awareness, much less inconvenience, of the “search and seizure.” I never for once in my adult life made a phone call or sent an e-mail under any other impression than that the data, or as we now say metadata, might be recorded somewhere, and could at some point, without my ever knowing about it (or caring), be accessed in the process of some investigation of some kind. Someone please help me feel the loss or sacrifice that we are supposed to be grieving or fearing.Report

        • Avatar Tim Kowal in reply to CK MacLeod says:

          My friend and I discussed this point, too. Like you, I do not have much of an expectation of privacy in my communications. I assume they’re like any kind of conversation: you can try to keep your voice down with your hand over your mouth, but someone might still overhear. And the fact of the communication? I.e., the date, time, who your talking to and for how long? Forget about it.

          But that’s me. Even my wife is a much more private person. My friend offered this test: “If I’d rather not turn over my phone records to you, I’m certainly not ok with the government having them.”

          Then again, as Mark pointed out, we’re way beyond just “phone records,” as PRISM apparently allows the government to store and view actual content.Report

          • Avatar CK MacLeod in reply to Tim Kowal says:

            I think you might want to familiarize yourself with the full current, minimally axe-grinding reporting on what PRISM and other programs make available and under what circumstances.

            The “what you could have” vs “what government could have” comparison is obviously faulty. I might have no problem at all turning information over to an disinterested stranger – or to a professional – that I would just as soon not share with a friend, loved one, acquaintance, competitor. Cops asks questions that your wife would never, and you might give answers you might prefer not to share with your wife. (For totally good reasons, I’m sure – you know, not to ruin that surprise you have planned… )

            You might argue that the government could misuse the information, but the same can be said for every conceivable government power or prerogative. The government that can chase or catch or harm bad guys inherently possesses the potential to chase or catch or harm good guys. There are other normal powers of the government much more efficiently dangerous than searches through troves of telco data.

            So I still don’t know what it is I’m supposed to be fearing or grieving or how to compare it to what else I might fear or grieve.Report

            • My response to this is that I’m not asking you to fear anything. Instead, the issue is that this program, with its secrecy and lack of meaningful accountability, disrespects the right of the very people it is supposed to serve to determine what is and is not worth fearing, and to have a voice in where the line between their own privacy and security should be drawn, as well as when that line has been crossed.

              What it comes down to for me is this: it is a program that if – and, given the number of people with access to it, when – abused is likely to take the form of especially egregious abuses. It is admittedly not alone in that regard, but it is also not particularly common. But what sets it apart, what makes it a major alteration of the relationship between citizens and their government, is that its abuses are not subject to meaningful external checks because it is a felony to make the public aware of those abuses.Report

              • The people have the same “voice” in drawing that line that they have always had or likely will ever or can ever have. The initial problems, Mr. Thompson, for the side you’re taking, it seems to me, are 1) that they do not seem to place these particular concerns anywhere near the top of their list, and 2) that to the extent they ever do, it’s usually on the opposite side of the so-called privacy or liberties advocates. That’s the democratic side of the problem.

                The liberal side of the problem – liberal as in classically libertarian or as in liberal-democratic, not political social welfare liberal liberal – would be covered, I suppose, under your expectation regarding unspecified, so far entirely speculative “egregious abuses.” I’m not sure that those are potentials visible in the current program: So, again, it might be helpful if you were more specific.

                Meanwhile, the theoretical power of government to violate or destroy the terms of constitutional governance and overcome whatever structure of supposed external checks has always existed, as have various laws, even before the modern system of classification, that could be used to punish spies, traitors, and others. So, I don’t see how a “major alteration” has occurred.Report

              • The problem is that it is impossible for the people to have any voice with respect to matters of which it is felonious to inform them.

                As for specific potentially egregious abuses, we can start with the potential chilling effect on free speech and free association where the government has real time access to all metadata of calls going to and from known journalists – it’s easy to prevent someone from blowing a whistle on abuses committed in connection with other programs if you can arrest them and prosecute them (with all allegations under seal, of course) before they can actually blow the whistle.

                There’s also this, with which I fully agree:

                It’s been said that most people commit crimes every day. Metadata makes it extraordinarily easy to make sure that folks with particularly unpopular associations wind up disproportionately being the ones who get caught.

                Then there’s the incredible potential for blackmail provided by having access to a government critic’s (or even a particularly prominent journalist) metadata (“I see you’re talking a lot to _____. Aren’t you married to _______? It’d be a pity if he/she found out.” Etc., etc.).

                And all this is without getting into the abuses that can be committed by just one low-level contractor or employee with a personal axe to grind.Report

              • The check on these kinds of abuses is ordinarily the threat that they will become public. That threat doesn’t exist here.Report

              • Avatar Shazbot3 in reply to Mark Thompson says:

                Well, if the violations of privacy get extreme enough, they will become public. If all of a sudden the government starts knowing things they shouldn’t know, you get the drift. By analogy, if people start disappearing at night out of their homes, even if you don’t see the government doing it, you figure it out.

                One reason these programs were secretive is that the abuses were minimal and hard to observe.Report

              • Avatar Mark Thompson in reply to Mark Thompson says:

                I think “extreme enough” is doing a lot of heavy lifting there. Indeed, the argument could be made just as easily that the reason why we know about them now is that they’ve already reached that point, with the response being to push for the prosecution of the whistleblower. This leads me to the conclusion that the goal posts for the next point where we reach “extreme enough” just got moved a bit further. It also leads me to the conclusion that when we reach that point, the next whistleblower will also be locked up and the bar for “extreme enough” will be moved yet again.

                And even if we get to a point where the consequences of “extreme enough” become impossible to hide, the wonderful thing about having secret laws and programs is that the consequences can be blamed on anything but the secret laws and programs.Report

              • Avatar Stillwater in reply to Mark Thompson says:

                Good point Mark.

                If the argument is that there is a causal relationship between activities undertaken within the policy and the policy becoming public, then the condition is already met.

                If the argument is based on a conceptual relationship, then it doesn’t hold anyway because the activities are “secret”.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                So, I don’t see how a “major alteration” has occurred.

                This might be right depending on how a person views a) the expectation of privacy and b) the actual facts about privacy.

                The expectation of privacy is something that was ostensibly codified in the fourth amendment (not in those words, of course) with the presumptive implication that government has to meet a burden to gather evidence of or investigate private individual activities. It seems to me you’re effectively saying that no such presumption exists. Personally, I think that does constitute a major alteration in government’s historical relationship to citizens.

                The actual facts surrounding privacy are such that technology has made it possible to monitor – in real time! – the private activities of individuals, whether visually or inferentially from observed “metadata”. There is a distinction in play here, ostensibly anyway: that individuals have no fourth amendment protections for activities that take place in public. But whether a communication occurs in public or private or somewhere in the twilight zone is irrelevant to the argument of whether government has a right to monitor it. I think Mark T expressed this view as well (undoubtedly much better than I will) but government is tasked with serving the interests of citizens, not promoting its own interests. But PRISM and etc are clearly, to me anyway, actions which can only be justifiably taken my government upon meeting a burden of proof. You seem to think the opposite. And the view you’re arguing for here, again, seems like a major alteration of citizen’s relationship to government.Report

              • Avatar CK MacLeod in reply to Stillwater says:

                Whether the 4th Amendment, Still, is being properly construed in this instance – either in terms of SC jurisprudence or in terms of direct or historical consideration of the Amendment’s purposes – is potentially a long and complicated discussion. On the face of it, however, perhaps we can at least agree that to obtain phone records never actually in your possession, but known by you (assuming you ever looked at a phone bill) to exist in the phone company’s possession, is a far cry from sending a squad into your house in the middle of the night scaring the children, damaging your china cabinet, and embarrassing you in front of your neighbors while looking for prohibited communications. To me, the last as a normal police action (i.e.,no cause, no warrant, get used to it) would be a major alteration. The borderline and speculative cases don’t seem to me to be so.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                Fair enough. And I understand the argument. The point I’m making tho isn’t about what constitutes an inconvenience or an embarrassment. It’s that the fourth amendment – if it means anything at all – is a limitation on what government is permitted to do without adequate justification. We could redefine “public” to be ultimately expansive – to include everywhere and everything – and it seems to me that even then government still has to meet a burden to monitor communications and transaction and collect data.Report

            • Avatar Tim Kowal in reply to CK MacLeod says:

              As I said, I’m not losing any sleep over the program. (Incidentally, I’m more interested in what about my psychology gets me upset over the Big Government principle underlying something like Obamacare but not underlying this. Someday I’ll finish the post I started writing on this subject.) But the answer to your question is in the Burke quote I ended with: even if you and I are sanguine about the policy itself, it’s still based on a troubling principle. Similarly, John Adams urged that the “spirit of liberty” was to “obsta principiis [resist the beginnings (of tyranny)] … knowing her enemies are secret and cunning, making the earliest advances slowly, silently, and softly.” In his Notes on the State of Virginia, Thomas Jefferson wrote:

              “Nor should our assembly be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when a corruption in this, as in the country from which we derive our origin, will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price. Human nature is the same on every side of the Atlantic, and will be alike influenced by the same causes. The time to guard against corruption and tyranny, is before they shall have gotten hold of us. It is better to keep the wolf out of the fold, than to trust to drawing his teeth and claws after he shall have entered.”

              James Madison also, in his Memorial and Remonstrance:

              “Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it.”

              We shouldn’t care whether we can imagine some great evil befalling us because of the bad principle. It should be enough that the principle is bad. As readers here well know, I for one often complain of the badness of the principle as it affects other policies. It would be disingenuous of me not to assail it when applied to this policy even though I may be otherwise largely undisturbed by it.Report

              • Avatar CK MacLeod in reply to Tim Kowal says:

                Principles are abstractions. Pursued mono-maniacally, they turn into fanaticism. Luckily for the nation being founded, Madison, Jefferson, and Adams were all gross hypocrites, and all had enemies in their lives who with good or at least quite arguable reason would have found the statements you quote risible. Doesn’t meant their concerns are invalid, just that translating the ideals into policy has never been easy, as far as I know.

                As for why Obamacare bothers you more than this one, my guess would that the security exceptions to constitutional freedoms are deeply ingrained if not foundational for the American right, since they go right to the (contradictory) beginnings that Constitutional and especially Declarationist conservatives revere.Report

              • Avatar Will H. in reply to CK MacLeod says:

                I like your framing of the issues here, but I think it’s a bit off in the one case.
                Obamacare goes beyond regulation to compel every citizen to positive action. Sort of like your mom telling you to go brush your teeth before you go to bed when your 10 yrs old. At 30, you don’t want to hear any more of that sort of thing out of your mom, even with the best of intentions.

                This electronic information thing is really one of property rights.
                If we can accept as true that property rights are derived from personhood, then the extension to, “This metadata is mine” doesn’t exactly add up. It’s really more or less, “This metadata is about me.” And those are two very different propositions.

                For my own part, and maybe this view is somewhat out-dated, I believe the power of the state should be limited, in that a government with sharply defined powers is preferable.
                In that sense, even gaining access to the records about me predicated solely on an amorphous ever-shifting generality, is an offense against the personhood. Like a slap is a slap, regardless of whether teeth are missing afterward or not.Report

              • Avatar CK MacLeod in reply to Will H. says:

                Will H – I understand your argument about the difference, of supposed difference, in Obamacare. It was extensively discussed, most famously at the Supreme Court. A state that cannot compel positive action on the part of citizens, or citizens in a certain predicament as it defines them, has no positive existence at all. Filling out a tax return is a “positive action.” Responding to a draft notice is a positive action. Evacuating a disaster zone is a positive action. Requiring some citizens, or any citizen in the defined predicament, to enter a marketplace may be somewhat novel, but that doesn’t necessarily justify opposition to it except as resistance to novelty in general. That describes a conservative temperament, but the unwelcomeness of novelty is not in itself likely to be a decisive political argument – or , if it threatened to become so, then that would also be a novelty worth opposing.

                I think the O-case discussion also touches upon the metadata and qualified property claim that you describe, and that you seem to be of two minds about, in another way. Health “security” also happens to intersect, as a matter of life and death, with the general “security exception” that political conservatives, as opposed to radicals and radical libertarians specifically, traditionally acknowledge. Especially in relation to a political philosophy that approaches personhood and property as mutually defining, the security exception is precisely a primary exception able to overcome property rights, including finally your rights to your first possession, your body or life. Sovereignty is precisely the power in this sense to expropriate, up to and including “supreme sacrifice.” In different ways, enabling the provision of health care up to the limits of the state’s abilities is just the flip side of the same indispensable equation.Report

              • Avatar Will H. in reply to CK MacLeod says:

                I tend to agree with your assessment of Obamacare.
                My issues with it are more that it’s being billed as the only insurance you’ll ever need. I support basic care and preventative care; but I believe there should some inclination for people who can afford insurance beyond that to pay for it through supplemental insurance plans.
                I would hope that the experiment would encourage a later move toward a national pension program; something like 401(k)’s that farm workers and others could contribute to.
                We’ve become fairly good at keeping the body alive. It might be a while until they’re able to do the same with the mind. We might well be the first generation to face this dilemma. God only knows what will happen to us.

                My issues with surveillance are more that it seems like something of a military operation; not directed toward the Russkies this time, but simple, ordinary people.
                Our law enforcement tends to the untrustworthy generally. We ceased to err on the side of caution long ago, in preference of erring on the side of incarceration. I don’t believe Americans are any more criminally-minded than the rest of the world generally, but our incarceration rates are nothing short of shameful.
                And I should add, my position is colored by the understanding that there is only so secure one person can be. The fear of thirst while the well is full is the thirst that cannot be quenched. And we have been unquenchable for quite some time.Report

              • Avatar Shazbot3 in reply to Tim Kowal says:

                Very well put.

                I think this is my thinking too.

                We’ve committed to having transparent government. So we should have it and this program doesn’t fit with it.

                Doesn’t matter if there is a slippery slope or current harm done (IMO, it is unlikely that there is a slippery slope or much current harm done), you just can’t have full democracy without total transparency and we like full democracy.

                I also think in purely political terms, to win people over, the slippery slope argument won’t work.Report

            • Avatar Barry in reply to CK MacLeod says:

              “You might argue that the government could misuse the information, but the same can be said for every conceivable government power or prerogative. The government that can chase or catch or harm bad guys inherently possesses the potential to chase or catch or harm good guys. There are other normal powers of the government much more efficiently dangerous than searches through troves of telco data. ”

              I’d say that at this point you have no grounds to complain about *any* government action.Report

          • Avatar Shazbot5 in reply to Tim Kowal says:

            Yeah, me too.

            I have always thought of phone calls and emails as being like conversations at a table in a cafe. Odds are that no one is listening, but they (whether government agent, law enforcement, or private actor) easily could hear everything. (My parents say in the olden days, the operator was often listening and would occasionally butt in, amd before that there were “party lines” only where everyone could hear everything.)

            That is not to say that the shouldn’t be privacy laws. There should be. I am just not sure on a purely moral level that I have some sort of intrinsic moral right to use phone/internet lines (that run through public spaces) without being listened to when I don’t have the same right to use the cafe space and not be listened to. This is why I am (and was with the Bush laws too) sanguine.

            My worry about privacy is just to make sure the government isn’t abusing it’s power, leading to long term harm to the press especially. This is why I’m more concerned about judicial oversight, government transparency, and government accountability in spying and law enforcement than I am concerned about privacy rights.Report

        • Avatar b-psycho in reply to CK MacLeod says:

          Why should the burden for expanding government powers be on the public to say why not rather than the government to articulate why?Report

          • Avatar CK MacLeod in reply to b-psycho says:

            Why shouldn’t I applaud the expansion of my government’s powers? Or be completely indifferent? What if I don’t share your hatred of government? What if I’m a nephew of my Uncle Sam, born on the 4th of July? You’re still not telling me what I or anyone else is supposed to grieve or fear uniquely as a result of these revelations.Report

            • Avatar b-psycho in reply to CK MacLeod says:

              If blackmail & politically motivated siccing of the powers of the state on people aren’t something to fear, what the hell is?

              What if I’m a nephew of my Uncle Sam, born on the 4th of July?

              Then you’re a walking example of why patriotism is so useful for guiding the gullible off of cliffs for the benefit of power.Report

              • Avatar CK MacLeod in reply to b-psycho says:

                That’s not an answer, Mr. p. That’s a re-statement of your already acknowledged position, in superficially altered language, twice.Report

              • Avatar b-psycho in reply to CK MacLeod says:

                If your view is that authority is just in whatever they do simply because it is authority, & whatever falsehood may be fed to people so they don’t question it is just fine for the same reason, there’s nothing to discuss. Freedom is meaningless in your formation, order over all.

                BTW: this to Tim… wtf?

                The government that can chase or catch or harm bad guys inherently possesses the potential to chase or catch or harm good guys. There are other normal powers of the government much more efficiently dangerous than searches through troves of telco data.

                …so how do we prevent them from harming good people, and punish them for doing so? Or do you even care?Report

              • Avatar CK MacLeod in reply to b-psycho says:

                My view, Mr. p, is that you still haven’t stated what it is I’m supposed to grieve or fear other than the violation of a picture you have in your mind about how things ought to or could be, or how the violation of the picture you have in your mind has anything to do with my actual freedom.

                Preventing government from ever actually harming good people, or from ever doing harm at all, would seem an obviously unrealistic expectation. Developing the relatively good or the best attainable governance requires consideration of the particular needs, expectations, and capacities of whatever particular groups of people in particular conditions. The complete elimination of government is not something I’ll presume you are at this point asking me to take seriously.Report

              • Avatar b-psycho in reply to CK MacLeod says:

                I know you don’t take it seriously. You also don’t seem to take seriously even restraining government.

                Say surveillance required individual warrants & findings of probable cause to suspect wrongdoing on the part of specific people, and ONLY those specific people could then be watched. Anything broader is banned, violations of such given criminal penalty & results of violating surveillance invalid, inadmissible. Problem?Report

              • Avatar Tim Kowal in reply to CK MacLeod says:

                For my part, the program perhaps could be supported under the president’s Article II authority as we are in wartime/prolonged conflict. I’m troubled by the fact that the president (yes, starting with under Bush), leaned on Article I powers in the Patrio Act as a source of perceived but not actual legitimacy vis-a-vis privacy rights of U.S. citizens. I don’t want to press the point too forcefully because this is not my area of expertise or special knowledge, but it seems to me Article II might give authority for this program under certain circumstances, but Article I doesn’t — it just authorizes spending for it.

                The only way to truly authorize and legitimize this kind of prolonged or permanent citizen-data-collecting program would be through amendment to the Constitution, since it alters the scope of powers and rights as set forth in that document.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                TK – how does data collection per se affect rights set forth in the C?

                b-p – What does “watched” mean in your example? Who would no longer be “watched” after the passage of your proposal?

                I still feel that in all of these exchanges we’re grasping around with different ideas even of what is being discussed. We’re not just speculating about possible harms of particular programs, but speculating about the possible causes of those possible harms.Report

              • Avatar b-psycho in reply to CK MacLeod says:

                What does “watched” mean in your example?

                Tracked by government agents in any way for purposes of national security or law enforcement.

                Who would no longer be “watched” after the passage of your proposal?

                Anyone not suspected of a crime.Report

              • Avatar Tim Kowal in reply to CK MacLeod says:

                It depends if the data collection invades privacy. The OP assumes it does, but you are right to point out that is a live precedent issue.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                b-p, if I understand you correctly, you would make much of a law enforcement, counter-intelligence, and security ineffective if not impossible. I think that, yes, there would be problems with that.Report

              • Avatar b-psycho in reply to CK MacLeod says:

                If law enforcement cannot comply with such restraint and limit any surveillance to specific individuals suspected of crimes, then to hell with law enforcement.Report

            • Avatar Stillwater in reply to CK MacLeod says:

              You’re still not telling me what I or anyone else is supposed to grieve or fear uniquely as a result of these revelations.

              He’s telling you what his fears are, tho. If you’re argument is that his fears are unwarranted, that’s one thing. But saying he needs to make a persuasive case for you to be afraid is a bit of an evasion. I mean, maybe you’re the type of person who applauds government expansion into private life.

              If you’re that type of person, it’s probably not possible to convince you.Report

              • Avatar CK MacLeod in reply to Stillwater says:

                Telling me that he has fears of something he calls or you call “government expansion into private life” is not the same as telling me what those fears are or why I should share them. There is obviously no actual harm to me if Special Agent Smith, without me or anyone else including Agent Smith herself ever knowing about it, simply scans a long list upon which a phone call I once had happens to show up. So is the problem that searches of metadata might be used by some future tyrant? So could fingerprints, mug shots, jails, weapons, uniforms, and a lot of other things. Is there something about metadata that makes tyranny more likely? Are there other things about it that might actually make tyranny less likely?Report

              • Avatar Stillwater in reply to CK MacLeod says:

                Is there something about metadata that makes tyranny more likely? Are there other things about it that might actually make tyranny less likely?

                I think you’re on the right track. Burt, Mark, b-psycho, Jaybird, others I’m sure, have given reasons to oppose this policy. That you don’t find the compelling nugget in their arguments isn’t necessarily informative re: the lack of a nugget. Tyranny might be one way to access what the nugget might be, but there are others. Mark and Burt (I think!) have argued that the lack of transparency is an inherent (and not based on a priori considerations, I don’t think) problem and fosters worries of abuse. Tim has argued that for conservatives policies like PRISM are fundamentally inconsistent with an amendment which explicitly outlines the limits of government’s relation to individuals. Jaybird takes a more pragmatic approach, arguing that defending “us” from terrorism requires him to accept to many abrogations of liberty. I guess I could go on.

                Point is, I don’t think the answer you’re looking for is possible, since people could give you empirical evidence which you apparently would reject. They could give you a principled argument which you would also reject. They could give you reasons for why they hold they’re own beliefs, which you reject as sufficient for changing other people’s minds.

                It seems to me – and of course I could be wrong – you’re asking for something that cannot possibly be done,even on your own terms. You’re asking an indisputable, ultimate justification. But you reject those.Report

              • Avatar CK MacLeod in reply to Stillwater says:

                Why do you suppose, Still, that I would reject empirical evidence? Has some been presented? I presume you mean empirical evidence of harm as opposed to empirical evidence of a intelligence agencies doing their work in conditions other than total transparency. I don’t find the latter unusual.

                The possibly principled objections take different forms and can be argued in different ways, but sooner or later they come down to a more or less reasonable concern about something bad happening to someone in some way. If we know what those are, then we can at least balance them against other supposed interests. I’m not asking for an “indisputable, ultimate justification.” I’m asking for something other than either ardent testimony on behalf of an abstraction or obviously exaggerated claims. That the harms were only speculative would not mean to me that they weren’t worth considering, butm if all someone can say is that he or she feels that his or her liberty is being abrogated, and this issue, which I can’t even explain, feels like part of that, and that’s all there is to it, then not many people will be inclined to share the concern to any great degree, and life goes on.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                OK, so I was wrong about the indisputable justification. Is it fair to say you’re asking for a set of reasons which are sufficient to change the minds of people who are either apathetic about PRISM or support it? And I’ll suppose that it probably isn’t fair to say that if those reasons aren’t phrased in a sufficiently compelling way then people shouldn’t express them?

                Somewhere between those two things is where dialogue is interesting, it seems to me.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                Stillwater: Ideally, we would have at least some agreement on what PRISM even is. Then, presuming that there were people still strongly opposed to it, we would know what their main concerns are: specific aspects of the actual program, general problems with this type of program, perhaps problems more with the precedent or precedents they believe the program sets, and so on. In the process of reaching agreement about what PRISM or the PRISM-related concerns were, we might also come to understand what purposes it was meant to achieve, and whether indeed it achieved them or would be likely to achieve them. We would then be in a position to determine whether costs outweighed the benefits if any. We might also determine how vulnerable the opposition would be to different or changing estimates of the security threat.

                Some observers find it maddening that the very nature of the program or of programs like it makes holding such a systematic public discussion impossible. At that point, the discussion turns into a more abstract discussion about the the conflict between effectiveness and accountability in relation to security programs in general. On this note Mr. Thompson points to the peculiar quality of the program as a secret data collection program: Though I don’t agree that the program itself represents a “major alteration” in the relationship of the people and their government, I do get the maddening contradiction between a program that makes the people more transparent to the government under a regime of opacity: The government wants to keep its rummaging through our secrets secret from us. It seems to suggest a principle of total unaccountability, though it neglects the actual system of accountability that does exist (elections, separation and balancing of powers, etc.).

                The libertarian ideal remains just the opposite of the maddening principle – total private opacity, total public transparency – but the two ideals cannot be realized fully at the same time, because the separation of the two spheres is conventional, not essential. There is a shifting, porous border between the two realms, constant traffic and communication across it, and a relationship of interdependence, including private information (or private acts) of public import; public actions that can’t be exposed without endangering the people in their private lives, and so on. (The very word “crime” invokes the contact point and overlap, or interpenetration, of private and public.) Snowdenism substitutes private judgments by particular individuals for collective (institutional, political) determinations as to where the lines should be set either at any given time or in general. It also sets precedents. Under certain circumstances, it may be justifiable, but “we” have at least as good a reason to put it to a stringent test as the libertarian-individualist has to put “us” to his test.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                Even after all that, which I disagree with to some extent, a question to you remains open and unanswered: do you think government should have the legal right to engage in programs like PRISM? Personally speaking, I think appealing to the conventional nature of government’s relationship to citizens re: privacy isn’t much of an answer. For example, some people might object to the convention. They might object to the legality of the convention. They might object to the utility of it, the cost of it, or even the principle of it.

                I think the burden you have to meet in arguing the way you are currently is this: to establish that there is any plausible justification for the program given the evidence we currently have. I don’t think that can be done, CK. Appealing to trust or whatnot isn’t gonna fly for the skeptic.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                Stillwater, since we still don’t know what “this” is, we’re forced to argue at a very high level of abstraction. I did not know that that question was an important one in this discussion, and I don’t see why there should be a me: In a debating sense, as a mere commenter, I’m “in the negative.” PRISM is the status quo, and not only is, but has been for a long time. The question is whether it should be ended, and if so how – apparently by making future PRISMs somehow illegal. As far as I can tell, the guy who won the most votes and is charged with final responsibility on security thinks the program is good, and so do his lawful appointees and people of long experience in security matters. I think that the public is OK with it, or has been.

                Even though, as I said, I think the burden is on the critics, we can easily answer the question of a plausible justifications. You may not choose to believe the testimony as to the program’s usefulness, but I don’t see how it fails a simple plausibility test, not when a good part of the fear associated with the program seems to be based on the notion that it really could be effective in catching designated wrongdoers. I think it’s also certainly plausible, based on very hard evidence, that there are would-be wrongdoers of the type targeted at large.

                So, we seem to agree that the program may be effective as a law enforcement tool, and there appears at minimum to be strong belief on the part of accountable officials, independent experts, and the public at large in a valid law enforcement purpose. So the justification for it seems plausible, even though I admit that’s a low bar.

                On the other side, the only known harm attached to the program so far is that it causes emotional distress to libertarians, one in particular very much, although not everyone will agree that upsetting libertarians is a negative or a bad sign. Either way, I’m not in favor of the precedent of making security policy or any policy on the basis of libertarian drama and associated acts of voluntarism. I’ve acknowledged that there might be valid exceptions to the rule, but I’m not yet persuaded that this is one of them.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                and I don’t see why there should be a me: In a debating sense, as a mere commenter, I’m “in the negative.”

                Of course, and the earlier question was meant to be understood in that context. Your argument to this point seems to rely in challenging the critic of PRISM to identify objective and politically compelling reasons which are (causally? conceptually?) sufficient to change people’s minds. My point earlier was that people’s views of the program aren’t invalid simply because another person doesn’t find their argument’s persuasive. That approach can be criticized on another level, tho: that it begs the question against PRISM’s skeptics. From their pov, establishing the legitimacy of governmental programs like PRISM requires meeting burden of justification. You seem to be arguing the other way around: that since programs like PRISM have always existed in the past no burden is required to justify their existence in the present (so the critic – and not the supporter – bears the burden of proof).

                But that doesn’t follow. (It begs.) It seems to me the argument you’re making requires establishing two things to go thru: a) that programs in the past are viewed by critics and skeptics as having met a burden of justification, and b) even if those programs are viewed as having met it, that PRISM (and suchlike) are similar enough to past programs to entail an extension of justification to them. Both those points, it seems to me, are being disputed in this thread.

                That’s a long way of saying that you’ve shifted the burden on this to the critic having to make an affirmative case against PRISM, rather than the government (or whoever, you perhaps) making an affirmative case for PRISM. And it seems to me if you dig in your heels on that argument structure, then we’re at an impasse. (Which is pretty much what b-psycho has said in his comments, IMO.)

                So, we seem to agree that the program may be effective as a law enforcement tool, and there appears at minimum to be strong belief on the part of accountable officials, independent experts, and the public at large in a valid law enforcement purpose. So the justification for it seems plausible, even though I admit that’s a low bar.

                The “may” you refer to here seems to me to be an epistemic may – that “for all we know” it’s possible that the program is effective. I don’t think anyone is arguing against that view. But the epistemic point is precisely where some people focus their criticism, since they think the lack of transparency constitutes, given some other premises, a sufficient reason to reject the program as its currently constructed.

                Lastly, I shouldn’t have to point out that “trust your government” isn’t going to suffice as either a criticism of skeptics or as a justification for the program. That’s just a psychological state and therefore isn’t even relevant.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                Figures, Stillwater, that you’d highlight the sentence with the weird typo, but, since you seem to have understood that I was referring to a burden on me, not to my existence, I guess we’re OK.

                We remain on this high level of abstraction. So, until I know a reason to climb down from it, I am left with questions that may seem absurd to an anti-government ideologue who believes in a discrete separation of private and public spheres and operates according to an impossible goal of the total opacity of one and total transparency of the other, but which you, with your background in philosophy and your facility with meta-ladders, might be able to view impartially, and recognize as related to more fundamental problems with ideological libertarianism and its anarchist cousins.

                Put simply: Why in fact should public official X, who remains a free human being contracted to this entity called the NSA, not go on about her free self-realization as she sees fit? Who am I, as an ideal libertarian, to stand in his or her way? I don’t presume to administrate her daydreams or correct the spelling in her memos. She, like me, is a free citizen who chooses, today, to access a file of metadata. So what? Means nothing to me. She could have chosen to smoke a joint or organize her iPod or take a nap or update her resume or answer her own e-mails, producing her own metadata for some other metadata-lover to enjoy at some later date. Not my business.

                The burden, from a truly consistent libertarian perspective, is on the critics to make what she does with her time anyone else’s business. They can go ahead and criticize, but it is eyewash if it is not meant to persuade, if there’s nothing at stake for others, if it’s not tied to some showing of harm in a notionally real world. Otherwise, it is merely a show of disputation, and, to a true libertarian like me, reflects an unseemly inclination to interfere in the lives of others. The critics appear to be individuals who get up every day with a presumption that their fellow governmentally inclined human beings should be prevented from following their governmental bliss. The critics can go on feeling however they like, and we can go on feeling however we like. The governmentally inclined themselves look to the faux-libertarian complainers, and, truer libertarians, say “You’re not the boss of me.”

                Lastly, I shouldn’t have to point out that “trust your government” isn’t going to suffice as either a criticism of skeptics or as a justification for the program. That’s just a psychological state and therefore isn’t even relevant.

                Liberal-democratic self-government depends on trust, and the security functions of government absolutely depend on degrees of “opacity.” That Americanism and the American liberal-democratic system encourages skepticism, and that recent political-cultural history has reinforced the tendency at least superficially, doesn’t change the necessity of both movements, of trust and distrust, of both positive and negative freedom. Skepticism in relation to governance is corrective, not an end in itself or ever an end at all. Otherwise, “distrust your government” is also simply an attitude, so also wouldn’t be relevant.Report

              • Avatar J@m3z Aitch in reply to CK MacLeod says:

                Hmm, so the officially authorized work activities of public employees are purely private actions, that are nobody else’s business (unless there is a clear showing of harm to some real individual)? That’s an interesting line of thought, if not congruent with any political theory I’m familiar with.Report

              • Avatar J@m3z Aitch in reply to CK MacLeod says:

                Liberal-democratic self-government depends on trust

                As Homer Simpson said, “Hey, that’s a half-truth!” 😉

                It’s true, but no more true than that liberal-democratic self-governance (LDSG, if I may) depends on enough distrust to ensure continued watch-dogging of that government. Too little trust will hamstring LDSG, while too much trust will lead to the disappearance of the LDS part, leaving just G.

                Where to draw the balance between trust and distrust is dialectic without a resolution.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                CK, I think we’ve achieved Critical Impasse. I’m not sure there’s much left to say, at least from my side. I really have no idea what question you’re asking anymore much less what would constitute an answer to it. Answers have been provided – empirical, principled, skeptical, emotional, political, etc – and you’ve rejected each of those. And not only in specific, but I think as types as well. That those types of answers a categorically incapable of answering the question you’re asking. I’m left wondering, again, if there is such an answer. And if there isn’t, then the problem may be with the question.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                Professor, since we are putting this conventional private-public opposition in question, and examining areas of conflict and overlap where the distinction appears unsustainable, specifically where the private act is deemed of public import (the question of crime), the notion of a “purely private action” would also be in question. At this level of abstraction, whether or not the public employee’s work activities were officially authorized would be secondary, since it simply refers us to the same question in a different form. The showing of harm or at least of risk is necessary to justify movement, whether as an ascent from fundamentals or as a descent from ideals, to the level where the conventional distinctions or assignments of status obtain whatever utility or purpose. Before then, all acts have both private and public aspects, or exist in both private and public dimensions, or there is no public act that is not also a private act and vice versa.

                Where to draw the balance between trust and distrust is dialectic without a resolution.

                As much as we may distrust each other personally, and might disagree about language, valid assumptions, proper emphases, and justifiable incidental conclusions, I think we share a similar understanding of the mixed system and its mixed results.

                “No trust” would be the disappearance of the collective possibility or of governance at all, so I think you’re right to depict trust alone as a sufficient condition for governance, but I think within the operation of the LDSG system, historically, trust tends to be on the side of D, mistrust on the side of L. L is the negative, D the positive in the two-stroke engine, but the tension will be re-produced in the particular positive institutions.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                so I think you’re right to depict trust alone as a sufficient condition for governance,

                I don’t think that’s what Hanley said, actually. He said that a certain level (“too little…”) of trust is anecessary condition for governance.

                And frankly, fwiw, I didn’t respond to the “trust” part of your earlier comment because it seemed irrelevant to determining whether a particular policy, one which is more or less in principle opaque, can be or is justified.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                Stillwater, I disagree that the side of skepticism and opposition has provided anything remotely approaching good “answers.” The question is simply this: Why should I care? What’s wrong with that question? I think it’s a very good, primary question. Your answer seems to be, because we say you should care, and because we say we’ve given reasons. What are they? The ones we gave, you say. You call them “empirical, principled, skeptical, emotional, political, etc.” All I see are ideological abstractions and inchoate fears and emotions: Transparency good, government scary. I already knew I was among ideological libertarians and fellow travelers. Why should I care? Why should I join the ideological libertarians and fellow travelers on this matter that they cannot even define?

                I of course reserve the right to question whether supposed answers are good answers or answers at all, but from my point of view Critical Impasse is equally the defeat of those arguing for action: The status quo retains its presumption, and the pseudo-libertarians are defeated in their pointless efforts to interfere with the liberty of their fellow citizens in government offices, at telephone companies, and so on, to interpret the requirements for the preservation of liberty (their job and their passion) as they see fit, and otherwise to do as they please in this matter as, on general principle, in any other.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                Still – you’re the one who inserted the word “trust” into this discussion. Not sure whether it matters whether we call trust necessary or sufficient for governance. In my view, as I said, the two are inseparable, or, as trust between people and the predictability of their actions and government as rule-based or managed conduct of human affairs, two different aspects of the collective or cooperative possibility. Government is a word for what one does with trust or why one sought it in the first place. I trust that when I seek to type these words, my fingers will respond, and this trust is critical to the government of my typing. The functioning of the related affect willingness to trust in the “governance of governance,” which is the question or meta-question on the level of the system, is an only slightly more complicated matter conceptually, though obviously quite complicated practically.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                The question is simply this: Why should I care?

                And as I’ve said, there is no reason that you should. People are offering the reasons for why they care.

                What’s wrong with that question? I think it’s a very good, primary question.

                Well, except for the “should” part, it’s a good question. If you were to ask: why do oppose PRISM and field the answers, then that’s one thing. But supposing that people are providing those reasons because they believe you should do something misses the point of their answers and views.

                Your answer seems to be, because we say you should care, and because we say we’ve given reasons.

                CK, I would never should on you like that. I have never said you should adopt one view or another. I gave you my views, of course, on both PRISM and what I thought was a mistaken analysis of other people’s expressions of their views.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                Not sure whether it matters whether we call trust necessary or sufficient for governance.

                Recognizing that some people regard that as very important might help you understand some of their views. It’s certainly important to me, and I’m not a libertarian. Not yet, anyway.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                Still, to say there’s no “should” implied in “their answers and views” is the same as saying there’s no “point” to them. I’m not sure that even I would go as far as you that the views expressed on this thread are totally pointless, but my sense is that claims of total pointlessness, not just of a lack of relevance but of a lack of even a possibility of or interest in relevance, are probably best treated with indifference.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                Still, to say there’s no “should” implied in “their answers and views” is the same as saying there’s no “point” to them.,;

                Ahhh. At last, we’ve Arrived. And where is that? That you view the expression of a view about PRISM as being equivalent with a normative claim imposed on others. That every expression of a (supposed) fact entails normative content imposed on others. I won’t go so far as to say that view is incoherent, but it’s certainly wrong the way you’re expressing it.

                Consider this: If you were to ask me about my views of PRISM, I’d tell you straight up (as I did earlier, tho you didn’t invite them). By engaging in that speech act, I am not necessarily advocating for anything regarding your judgment of PRISM, nor am I necessarily passing judgment on other people’s views, and most importantly for our purposes, nor am I necessarily telling other people what they ought to believe.

                I could be, and in fact am (in my own case), merely expressing my views. Insofar as your view about the imposition of “oughtness” applies, it’s this: by expressing a view about PRISM, I’m may (but also may not!) be saying to people “you ought to consider my views!, you ought to reflect on the merits of those views, and then, given the additional input of my comments, arrive at your own judgment.”

                So it seems to me a mistake (of monumental proportions!) to think that my expression of opposition to PRISM equates to, or implies, or any of that nonsense, that I’m imposing a normative obligation on others. At best, the only normative obligation implied (one which doesn’t even hold necessarily, it seems to me) is that the interlocutor consider those views.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                Lots of tag closure issues in that comment CK. Sorry bout that.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                And it strikes me that James earlier comment (on another thread) about methodological individualism is a exactly appropriate in this context. It seems to me that you’re thinking of public speech acts (at least in this context) entirely in terms of advocacy for collective action and reinforcing group identity. Which strikes me as completely missing the point. Mark Thompson has given some very compelling criticisms of PRISM and what I read them, I don’t see any signalling or transparent tribal-identity advocacy in them.

                If just you and I were alone a room talking and the subject of PRISM were to come up, I don’t think you’d think your current deconstructive analysis was appropriate. I’d want to hear your views of the program. Not some analysis of how other people’s views are determined.Report

              • Avatar Stillwater in reply to CK MacLeod says:

                What did LVW say, quite accurately: Analysis has to stop somewhere? Something like that?Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                Stillwater, someday, time, and health, and security allowing, I will try to write systematically on the implicit intentionality of speech acts, but for now I will assert that your position, or rather the way that you seek to put it forth without assuming responsibility for it, is self-contradictory, and representative of bad faith. That you have made it in a way that turns on the assertion of bad faith and possibly “monumental” “error” on my part will I hope excuse my being so direct in response.

                You write:

                Consider this: If you were to ask me about my views of PRISM, I’d tell you straight up (as I did earlier, tho you didn’t invite them). By engaging in that speech act, I am not necessarily advocating for anything regarding your judgment of PRISM, nor am I necessarily passing judgment on other people’s views, and most importantly for our purposes, nor am I necessarily telling other people what they ought to believe.

                If I, as you request, consider the above, it is a statement of belief on your part, or an assertion about argument, not actually argument of a position. I could take out the negations and privations, and have a perfectly sensible statement of an opposite view conforming to the common and indispensable understandings underlying all meaningful discussions – that is all discussions in good faith, all discussion as actual discussions at all, all discussions as other than absurd imitations of discussion, or other than collisions of random assertions.

                According to this perspective on the “point” of political discussion or really of any discussion at all, a perspective that I will insist is basic, but which you impute to deconstructive perversity or some such on my part, of course, you, and Mr. Thompson, and others, are “advocating” in regard to my “judgment.” You are seeking to persuade. You want my judgment to change. You believe or at least hope and feel that your particular views are the correct or preferable ones, and that others should come to share them or amend their own views to take your views properly into account, or, if not, demonstrate why your views are faulty and why you or any reasonable interlocutor of good will should adopt their views instead.

                The only alternative understanding of your “speech act” is that it – your telling me “straight up” what your views on PRISM are – was utterly pointless for you, that it is a matter of indifference to you whether my or anyone else’s views were changed in any respect. You have simply written a comment for no known reason. It just happened, as far as anyone knows for sure. If anyone happens to be influenced to move in your direction, that’s on them entirely. Nothing to see here. Move along. You were, as you say, “merely expressing [your] views,” since, apparently, for you there are two ways of expressing one’s views, one that is meant to matter in some way and for which someone might take responsibility, and another that is inert, not meaningfully related to the speaker or anything else, “merely” expression, not meaningfully expressive expression.

                But then you say this:

                Insofar as your view about the imposition of “oughtness” applies, it’s this: by expressing a view about PRISM, I’m may (but also may not!) be saying to people “you ought to consider my views!, you ought to reflect on the merits of those views, and then, given the additional input of my comments, arrive at your own judgment.”

                So, it turns out, you “may” have a purpose: to have other people’s views or processes of judgment altered to the extent that they now take your views into account. You thus confess that you believe that your views may indeed matter (have “material” effect) after all. You even concede that there is an “ought” involved, that your views really are views that may have “merits” – another notion of usefulness or material effect. But then it’s back to the circuitous language and deflections. By italicizing “arrive at your own judgment” you again are trying to evade responsibility for having stated particular potentially persuasive views. If I choose to consider them, you seem to say, that’s my problem and my responsibility. You are a totally innocent bystander who just happened to be talking to himself or no one, and it’s all on me that I was listening in. You want me or anyone else who hears your arguments to accept that they are arriving at their judgments completely independently of any possible intentions on your part, yet while at the same time under awareness of your “straight up” views.

                In relation to other people’s views, you likewise want to have things both ways. You call Mr. Thompson’s statement “compelling,” as though to make a compelling argument is essentially different from “having a point” or telling someone what they should do. A point is a focus, a point of attraction, or a direction – at minimum a difference, a score on your team’s side, or an argument that must be answered if the case is to be disproved. To have a point is to have an argument that moves people in the direction it indicates. To compel is likewise to move someone. To tell someone he should do something is likewise to influence him in one direction, to act in one way, as opposed to some other way. It refers etymologically to the recognition of a debt – one “ought” to pay the “owed” amount (there’s a deep underlying linkage, I believe, to “oath” and eventually to the most basic questions, but we can leave that discussion to other times and venues). I should pay my debt rather than buy myself a beer or fool around and remain incapable of paying the debt. In my case you refer to my my possibly “monumental” “error”: To err is, again, to move in the wrong direction – to go astray, to wander, or to “miss the point,” which is where you began. Monumental is an odd word to choose for it in this context, since a “monument” stands there for all to see and learn from.

                To announce a judgment of right or wrong, correctness or error, is to seek to influence in the “right” direction. To say that someone has “missed the point” is to affirm that there is a point, a direction, an owed debt requiring action, a right preferable to a wrong; or it is to speak some other language. You want to escape this necessity, but you can’t. You’ll always come circling back to it, because to speak is to acknowledge the other and the question of meaningful common purpose, or it is not speech at all. The other point of view is quite de-humanizing of and deeply unsympathetic toward the other. You want to be involved but not involved, relevant but not relevant, to matter but not really to matter, to move but secretly, to stand up and be counted but not to be known to have stood and and to have wanted to count. In point of fact, however, when someone arrives at a judgment contrary to your straight up views or the views of others you share, you tenaciously work to get him to consider and re-consider the basis of his failure to take them into account.Report

              • Avatar Chris in reply to CK MacLeod says:

                You have an uncanny ability, CK, to tell us why people said something without committing to a view on why they said something. I wonder how I should interpret that, in light of this comment (which does precisely this at the same time that it suggests that it is not possible to do so).Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                Not sure I understand what you mean, Chris, by “committing to a view on why they said something.” Do you mean committing to a view on the subject the person were discussing or that motivated them to speak? Is there some un-clarity about my views on the PRISM controversy, or on discussion norms? Is there some other view in question? Or did you mean something else entirely? Something about external motivations?Report

              • Avatar Stillwater in reply to CK MacLeod says:

                CK, I got to this part and had to stop:

                So, it turns out, you “may” have a purpose: to have other people’s views or processes of judgment altered to the extent that they now take your views into account. You thus confess that you believe that your views may indeed matter (have “material” effect) after all.

                I’m confessing that a comment may (or may not!) be expressed for the purpose of having other people consider it. I’m most certainly not confessing that all speech acts of the kind we’re discussing express an implied normative judgement or obligation regarding others (ie, that they ought to believe me!!!).

                So, you get that part of the content ass-backwards. You also apparently don’t understand the distinction believing another person ought to consider the expressed views and believing another person ought to believe the expressed views.

                You also apparently don’t know what the word “possible” means, since you think I’m offering an analysis when I use that word. But I ain’t. I’m merely describing. You, on the other hand, have offered an analysis of speech acts. One I happen to think is wildly inaccurate.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                Stillwater, I’m sorry if this is frustrating for you. It is for me also. I suspect it seems to you, and to anyone still observing our exchanges, that we’re no longer arguing about anything at all or, even worse, that we’re arguing about arguing infinitely recursively. The discussion is further complicated by the fact that it’s two discussions of once – of Prism, and of discussion.

                I’m not going to characterize your last comment directly or try to explain where I think you’ve gone wrong and gotten me wrong. I will simply take your statement to heart that you actually “may not!” be interested in having other people, or specifically me ( whichever, same difference as far as I’m concerned), consider what you have to say.Report

              • Avatar Kazzy in reply to CK MacLeod says:

                It don’t get more meta than this.Report

              • Avatar J@m3z Aitch in reply to CK MacLeod says:

                The only alternative understanding of your “speech act” is that it – your telling me “straight up” what your views on PRISM are – was utterly pointless for you, that it is a matter of indifference to you whether my or anyone else’s views were changed in any respect. You have simply written a comment for no known reason.

                This is odd, given that CKM not so very long ago criticized me for assuming that he cared what people thought of his comments; that he wrote only to express himself. I wonder if at that time he thought his own expression was “pointless” to him and “written…for no known reason.”Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                What’s odd, Professor, is that as intelligent and articulate an individual as yourself can’t seem to process, after repeated exchanges directly on the topic, the simple distinction between comments that are directed at me or anyone else personally, and comments that offer substantive on-topic replies. You seem to want to mix the two together under the general heading “interaction.” It often leads to bad results, as I think you know well, especially when personal hostility and character judgments are inserted into discussion of complex and controversial subjects.

                This is odd, given that CKM not so very long ago criticized me for assuming that he cared what people thought of his comments; that he wrote only to express himself.

                That is lazy language. “Thought of” is especially ambiguous, and “wrote only to express himself” is your language, not mine. Since Stillwater and I have been “discussing discussion” and specifically using “our discussion” as a central example – thus it’s vexing meta-ness – I don’t think it’s entirely inappropriate for you to “quote me to myself” here in showing me the error in my ways. I would, however, prefer that you quoted me accurately, and, of course, in a way that reflected a sincere effort to understand what’s being discussed.Report

              • Avatar J@m3z Aitch in reply to CK MacLeod says:


                Your “simple distinction between comments that are directed at me or anyone else personally, and comments that offer substantive on-topic replies” seeks to unilaterally define my prior comments as merely personal, lacking substance about the topic. I will simply say that you are incorrect and that it is a definition notable for its convenience to you.

                especially when personal hostility and character judgments are inserted into discussion of complex and controversial subjects.

                Hostility to style, not to person. I wish you no harm, but I wish death to all academic obscurantism. It is not conducive to clear thought and understanding, nor is it considerate to one’s audience. It poses a gulf between the washed and unwashed and refuses to participate in helping to bridge that gulf, imposing all the responsibility on the reader.

                This is particularly notable given your claim that you are seeking “a sincere effort to understand what’s being discussed.” That also requires that you are sincerely seeking to help others understand your position. But your writing is a club to deter others from participating. Whether or not you intend it to be used that way, that is how it functions. You may not see your style as a problem, but your frustrations with people not understanding you are directly attributable to it.

                And academic obscurantism has too often been used to give the appearance of deep thought, placing a facade over essentially empty claims, that its very use–even though not always intended that way–must be viewed as just cause for the reader’s skepticism. I previously mentioned the Sokal hoax, and I did not do so lightly. As Einstein supposedly said, “if you can’t explain it simply, you don’t understand it well enough.” I am a firm believer in that, so I have no qualms about challenging those who resist explaining themselves more simply.

                That is lazy language. “Thought of” is especially ambiguous, and “wrote only to express himself” is your language, not mine.

                Very cheap. All it claims is that I didn’t use a direct quotation, so of course nothing of the type happened. I do apologize for not quoting directly; my google-fu is regrettably inferior. But you did clearly assert that your point in writing something I critiqued was just to express your own view, not because you cared what others thought.

                in a way that reflected a sincere effort to understand what’s being discussed.

                That seems to be a bit of a double-standard, given that I have seen no evidence in this thread that you have made a sincere effort to understand b-psycho’s or Stillwater’s points, but only a demand that they satisfy some standard you have not articulated clearly. As it stands, to the best I can understand your articulation of that standard, I don’t think you’re wrong. But I think a sincere effort to understand b-psycho or Stillwater would indicate that they’ve gone further towards demonstrating it than you have so far recognized.Report

              • Avatar BlaiseP in reply to CK MacLeod says:

                The possibly principled objections take different forms and can be argued in different ways, but sooner or later they come down to a more or less reasonable concern about something bad happening to someone in some way.

                There’s nothing exaggerated in these claims of harm. It is no exaggeration to say our rights under the Fourth Amendment have been steadily abrogated over time. Nor is it an exaggeration to point out these rights have been further abrogated by secret courts serving warrants so secret not even the person so served can take it to his attorney, much less to the press. These are not idle exaggerations.

                You’re asking us to measure our complaint about existential threats to privacy against some equally unknown good which may have come of those trespasses against our privacy. Our security is under threat, our privacy also.

                Now I will tell you plainly, Mr. MacLeod, for I have seen what comes of all this in other countries. A nation without a tangible enemy will very promptly invent one, calling it a Threat. Like a failed immune system, as in rheumatoid arthritis, the body politic begins to destroy itself, making no difference between an actual outside threat and the body’s own tissues. Soon, the Woozle Hunt begins, the shadows and footprints of imagined enemies are everywhere seen. My experience in Security Matters is long, very long. And this I will tell you, more is classified because it is embarrassing than because it is of any practical import to our security.

                Intentionality is a knife which cuts both ways. If we are to walk through life, knowing the government is intruding ever farther into our lives, they might have the decency to admit they’re doing it and explain themselves.

                Gilles DeLeuze once said “The fundamental problem of political philosophy is still precisely the one that Spinoza saw so clearly (and that Wilhelm Reich rediscovered): Why do men fight for their servitude as stubbornly as though it were their salvation?” And that, CK, is where you seem to be, fighting for servitude as if it were salvation.Report

              • Avatar CK MacLeod in reply to CK MacLeod says:

                At some other time, BlaiseP, I might enjoy working up, or at least feel obligated to attempt, some response to your comment and the terms of discussion it proposes, but I cannot deal with the matter now. Maybe some other day.Report

              • Avatar George Turner in reply to Stillwater says:

                So you’re pretty confident that you’ll be among the last people they come for.Report

      • Avatar BlaiseP in reply to Mark Thompson says:

        Come ON. What does Smith say? Let’s review:


        The installation and use of the pen register was not a “search” within the meaning of the Fourth Amendment, and hence no warrant was required. Pp. 739-746.

        (a) Application of the Fourth Amendment depends on whether the person invoking its protection can claim a “legitimate expectation of privacy” that has been invaded by government action. This inquiry normally embraces two questions: first, whether the individual has exhibited an actual (subjective) expectation of privacy; and second, whether his expectation is one that society is prepared to recognize as “reasonable.” Katz v. United States, 389 U.S. 347 . Pp. 739-741.

        (b) Petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and even if he did, his expectation was not “legitimate.” First, it is doubtful that telephone users in general have any expectation of privacy regarding the numbers they dial, since they typically know that they must convey phone numbers to the telephone company and that the company has facilities for recording this information and does in fact record it for various legitimate business purposes.

        Nothing in there about any breadth. If the government can collect metadata on anyone without violation of the Fourth, it can and does collect on all.

        As for Internet-ish things, Clapper v. Amnesty International pretty well put the ol’ wooden stake through the Fourth Amendment’s chest.Report

        • Avatar Mark Thompson in reply to BlaiseP says:

          Blaise – I think you may have misread my point with respect to Smith, which was not that this data collection was contrary to Smith. To the contrary, I fully acknowledged that the program was permissible under Smith.

          My point is that this program is the first publicly disclosed instance in which blanket pen register/metadata has been collected indiscriminately about virtually every American without regard to any specific inquiry related to the person whose metadata is obtained. That it was being done clandestinely with respect to every American magnifies this issue many fold.

          The issue with this program is, to me, less a Fourth Amendment problem (again, whatever my opinion of Smith, that ship has sailed), and more a problem of disrespect for democratic principles.

          There is, to my knowledge, no publicly accessible legislation explicitly authorizing, much less, requiring such a broad and unspecific collection of data. Meanwhile, it effectively treats every single American as a target of an investigation into unknown – and indeed as-yet uncommitted – crimes. The restrictions on the use of that data are effectively a body of secret law; violations of those restrictions are likewise presumably protected by that body of secret law.

          Worse, frequent abuses of this secret law are highly likely, just by virtue of the laws of large numbers – at this point, 4 million people have security clearances, and over a million (half of whom are private contractors) have top secret security clearances. (Source: Obviously, only some of those security clearances are for people with access to this particular program, but even still you’re looking at thousands of people with that kind of access. Watching to make sure all of these people aren’t abusing their access is who? A FISA judge?

          It seems to me that the idea of a government conducting such a blanket investigation of all its citizens subject only to an effectively secret body of law with virtually no ability on the part of those citizens to monitor the conduct of that investigation (short of someone on the inside committing a felony) is, at minimum, anti-democratic even if it is Constitutional.Report

          • Avatar BlaiseP in reply to Mark Thompson says:

            What would the remedy look like? I mean, really, Mark, I am so cheezed off. I’ve been telling people for decades now — the government doesn’t need a warrant to track your phone, your call logs, your Internet history — don’t use VoIP phones because they’re subject to Smith — it’s Internet traffik and if I can spot it in Wireshark, the government can get it, too, and so can anyone else if they’ve a mind.

            My clients listen to me. I take security awfully seriously. But they still want these VoIP phones, it’s a cost savings — and now here it is, courtesy of Mr. Snowden, might as well have come out of one of my own security presentations.

            I’m not a lawyer. I connect things. Things that sometimes weren’t designed to be connected. What would it take to fix this? Tell you right now what won’t fix it, a lot of turning of eyes to heaven and clasping of hands and harrumphing about Conservative Values and who’s been defending them.Report

            • Avatar Mark Thompson in reply to BlaiseP says:

              I can think of several remedies, two of which would fully answer most of my biggest objections and the other of which would partially answer them:
              (1) Require that it be governed by public laws and regulations rather than secret laws and regulations. If the program can’t pass Congress on its own merits rather than under a tortured interpretation of the word “related,” then it should be discarded. If it can pass Congress (which I admit is the more likely outcome), then either we’ll at least have the ability for meaningful oversight (if the rules governing the program are a matter of public law) or (if the legislation authorizes the rules of the program to be kept secret) we’ve explicitly assented to the notion that abuses of the powers provided by this program are unworthy of being subject to meaningful checks.

              (2) Rather than requiring service providers to provide the government with real time reports on all calls on their networks, require that metadata records be maintained by service providers in an accessible format for 1-2 years, with access to such records permitted only pursuant to a narrowly drawn FISA warrant seeking information regarding or connecting a particular set of phone numbers.

              (3) Regular, publicly accessible reports – audited by the House and Senate Intelligence Committees, with individual members thereof permitted to publish public dissents from the audit – setting forth: (a) number of records collected; (b) number of times permission was obtain to actually access records; (c) number of records accessed; (d) number of phone numbers associated with accessed records; and (e) number of plots interrupted, with a brief (but non-public) description of each interrupted plot.Report

          • Avatar George Turner in reply to Mark Thompson says:

            Actually, the collection is in violation of Smith because I used to use an anonymous TracPhone from Walmart (I hate calling plans). By not entering my name or SS number, I had established an expectation of privacy, since calls I made wouldn’t be traceable to me, personally, because the phone company had no idea who I was, nor did they care. However, all my calling information got scooped up with everybody else’s meta-data, and given the nature of the program, the NSA computers would’ve almost immediately figured out who I was and placed the calls with my identity, violating my expectations as laid out under Smith. Not only that, but I had taken efforts to protect such information, another requirement under Smith. Therefore I charge that the program is in violation of the Fourth Amendment.

            Ironically, the people who’ve made an effort to protect the privacy of their phone conversations are the people the NSA would most focus on, and the Smith decision would hold that those are the only people who are protected from such a blanket search.Report

            • Avatar Jim Heffman in reply to George Turner says:

              “By not entering my name or SS number, I had established an expectation of privacy, since calls I made wouldn’t be traceable to me, personally, because the phone company had no idea who I was, nor did they care.”

              That just means they don’t connect the data to George Turner of 2015 Peachtree Lane, Hampton VA 23607. They can still collect the metadata–time, duration, the fact that it was a tracphone, where the call was made from and to–and do things with that.Report

    • Avatar Burt Likko in reply to BlaiseP says:

      My point has been that it ought not to be legal. And I think that’s Tim’s point, too (at least, Tim suggests we need to undertake very careful consideration of some philosophical issues before giving PRISM a pass, which we haven’t done yet).Report

      • Avatar Mad Rocket Scientist in reply to Burt Likko says:

        Or, more importantly, which we were never given the opportunity to consider prior to the program existing.Report

      • Avatar BlaiseP in reply to Burt Likko says:

        That being the case, why then all this talk about Obama, as if his “double-talk” and “If I’m being charitable, I might point to the penultimate sentence and conclude the president means that we don’t need to “abandon freedom,” i.e., in its entirety, in order to have security. But why should I be charitable if the president’s not? ”

        What does Obama have to do with any of this, beyond using a tool SCOTUS, Congress and the FISA courts gave him the perfect right to use? Conservative physicians, heal thyselves. We Liberals have been complaining about this sort of abuse of power for far longer than any of you. The gratuitousness of the swipes at Obama, well it’s breathtaking chutzpah. Perhaps, one day, I shall live long enough to see a Conservative Republican address the issue of abuses of government powers in the hands of their own.Report

        • Avatar Burt Likko in reply to BlaiseP says:

          I do not find it surprising that Republicans are quicker to criticize the executive branch under a Democrat than they were under a Republican. Just as I do not find it surprising that a number of Democrats who formerly were very critical of the executive branch have discovered “nuance” since 2009. Unprincipled, to be sure, but also unsurprising.Report

          • Avatar BlaiseP in reply to Burt Likko says:

            Bicameral poxosis is the diagnosis. Fact is, Smith established the rule during the Carter administration, the phone companies have been obliged to keep all the records just in case the Gummint wants them — and never a warrant had to be issued for any of it.

            All this Conservative harrumphing about rethinking the relationship between man and state that this country was founded upon, and which conservatives in particular have sought to protect and restore — eet eez to larf. When Conservatives exhibit one-tenth of the concern for the Fourth Amendment as they do for the Second, the sun will have burned down to a cinder. What have they protected? What have they ever restored?Report

        • Avatar b-psycho in reply to BlaiseP says:

          Then there are way too many Democrats and nowhere near enough Liberals.Report

  4. Avatar George Turner says:

    Well, I’m ambivalent about the way the government is headed. A Bush era NSA whistleblower, Russ Tice, who exposed some of the previous efforts, gave some details in a recent story:

    “They went after–and I know this because I had my hands literally on the paperwork for these sort of things–they went after high-ranking military officers; they went after members of Congress, both Senate and the House, especially on the intelligence committees and on the armed services committees and some of the–and judicial,” Tice told Peter B. Collins on Boiling Frog Post News.

    He went on: “But they went after other ones, too. They went after lawyers and law firms. All kinds of–heaps of lawyers and law firms. They went after judges. One of the judges is now sitting on the Supreme Court that I had his wiretap information in my hand. Two are former FISA court judges. They went after State Department officials. They went after people in the executive service that were part of the White House–their own people.”

    Then Tice dropped the bombshell about Obama.

    Well, that explains what happened to David Patreus, and probably why Justice Roberts changed his vote on the Obamacare decision after he was writing up the court’s opinion. It might explain why Obama has governed contrary to almost everything he campaigned on, as if he’d been captured and blackmailed by the US intelligence agencies, along with why the FISA court has a 99.7% approval rate for the most expansive searches every dreamed up.

    Or maybe Russ Tice is a part of gaslighting Michael Hastings, the Rolling Stone journalist who died in a fireball about two hours after he was talking to a lawyer for Wikileaks about having something really big.

    That goes along with a massive and broad shift in government policy under which Obama wants all federal employees to report their suspicious coworkers who might be traitors and enemies of the state. Leaks to the media are to be considered acts of espionage. Failure to report such coworkers could result in loss of a security clearance, firing, and criminal charges. He calls it the Insider Threat Program. The implementation of his executive order has been bizarre and frightening, producing such gems as:

    An online tutorial titled “Treason 101” teaches Department of Agriculture and National Oceanic and Atmospheric Administration employees to recognize the psychological profile of spies.

    Seriously, take the program at

    The reason I say I’m ambivalent about all this is that the Republicans will probably win the White House in 2016, along with Congress, and by using tools like the Insider Threat Program, targeting assassinations, and NSA blackmail, we can probably purge the government of all its liberals, all the way down to mail carriers, throw Democrat donors in jail for tax fraud, and then start keeping a close eye on Canadians who’ve been suspiciously raised to blend in amongst us, doing Lord knows what to advance the royal schemes of the House of Windsor.Report

    • Avatar J@m3z Aitch in reply to George Turner says:

      One of the judges is now sitting on the Supreme Court that I had his wiretap information in my hand.

      Well, that … probably why Justice Roberts changed his vote on the Obamacare decision after he was writing up the court’s opinion.

      That’s a Flubber brand leap of logic.Report

      • Avatar Jim Heffman in reply to J@m3z Aitch says:

        There’s a thread of discussion on Obama-hater weblogs that the NSA was tapping Roberts’s phone and learned something naughty, and the administration used that to blackmail him into voting for Obamacare.

        And it’s OBVIOUSLY TRUE because some guy died in a car crash.Report

  5. Avatar zic says:

    PRISM, on the other hand, suggests a new and different arrangement between individual and government in which privacy is not a natural right but a positive right, a right to which man owes and accounts to society and government.

    Somehow, corporations are part of this game. The government collected that data from corporations. My notion of privacy concerns include privacy from both Big Data and Big Government. I find failing to consider both disturbing.Report

  6. Avatar Burt Likko says:

    This may be a bit of a threadjack, but I’m interested in a couple concepts you use in your essay, Tim, and some of it comes from the law’s use of particular phrases.

    First, is a “privilege” different from a “positive right”? I have a “privilege” to testify before the Legislature, for instance, so I cannot be (successfully) sued for defamation based on the content of my legislative testimony. This is a different legal animal than my First Amendment right to petition the government for a redress of grievances — that would be, for instance, my right to send a letter to my Assemblyman and urge adoption or rejection of bill X.

    Second, it seems obvious that reasonable people can disagree about what sort of conduct is “justifiable,” at least in close ethical calls. Say, signing an employment contract to work for XYZ corporation, then getting a better offer from ABC corporation and revoking the XYZ contract after XYZ sent “thanks but no thanks” letters to other desirable candidates. Rights to work, breach of contract, the force of promises, reasonable expectations of reciprocal loyalty, maximization of economic efficiency, cost and impact of detrimental reliance… Reasonable people could disagree as to whether this is justifiable conduct or not, and what other circumstances might tip the balance one way or the other and therefore, as I understand Tim’s index, whether anyone’s rights are implicated by the situation.

    So given the proposition that the extent of an individual right ends when the conduct sought to be protected by the right becomes “unjustifiable,” how are courts or democratic institutions to respond to close-call cases of justifiability — and if the answer is “if it’s a close call, we should defer to reasonable people who find it justifiable,” how might we avoid “justifiability creep” enlarging rights to engage in increasingly unjustifiable conduct over time?Report

    • Avatar Shazbot5 in reply to Burt Likko says:

      “how might we avoid “justifiability creep” enlarging rights to engage in increasingly unjustifiable conduct over time?”

      But since the founding of the Republic (and in other 1st world democratic countries) we haven’t seen that “creep” go too far without being -eventually- stopped or eve. reversed, have we? Rather, we see our rights and other interests (security, health, equality, etc.) rebalanced over time as the world we live in changes.

      The nature of the mechanism that stops the “creep” is complex, to be sure, but I’ve no doubt that there is one, given that our rights haven’t been creeped away over a long period. You could argue that there is something especially worrisome about this rebalancing of privacy rights (over telecommunications specifically) and security. bBut I don’t see that there is any more of a slippery slope here than with, for instance, the IRS’ ability to get financial records.

      IMO, the bigger worry for most individuals (on a purely self-interested basis) is private companies demanding credit ratings, drug tests, email access, bank records, facebook access, etc. for hiring purposes.Report

      • Avatar Will Truman in reply to Shazbot5 says:

        I would argue that our prisons provide some solid examples if justifiability creep. Or our sex offender registries, to pick another example. Or property seizure.Report

        • Avatar Shazbot5 in reply to Will Truman says:

          Prisons (and drug laws) have been creeping, yeah. But, you’re beginning to see the backlash. (And as we now see the crime problem was partly lead poisoning.)

          Look, there was even a creeping of this kind of domestic surveillance before the Church investigation and FISA and all that. Then there was a bit of a pullback. Things creeped fast after 9/11, but will be pulled back again or held at this point and no further.

          I’m not saying this program shouldn’t be curtailed or redesigned or even scrapped, but the slippery slope argument is fallacious. There is just no reason to believe that this program will lead us down the path to 1984 or anything near it. It is entirely likely that the program will still where it is or be curtailed and not spiral out of control.

          Actually, my own preference would be to allow the program, but require all details to be public for review by Congress and the press. I mean “all” might be hyperbole. The names of the people running the program could be held only by Congress or something for prosecution of wrong-doers. The current investigations could be kept secret for up to, say, 1 year. Something like that. I strongly suspect making the program public wouldn’t help AQ or other groups much. If they’re stupid enough to use the phones, they’re not smart enough to beat the NSA’s surveillance, even if they know it’s details. That’s not to say that they can’t get lucky and go undetected, but knowing the details of the program won’t help them improve their chances of going undetected.Report

          • Avatar Will Truman in reply to Shazbot5 says:

            I do not see the backlash to prisons and drug laws that you see (except pot). I see people speaking out against it, and a few locales looking at it from a budgetary perspective, but we are where we are and I think anyone who would have said we would end up here at the outset would have been accused of slippery slope fallacy.

            I don’t think we have to end up in 1984 for the slippery slope argument to be real and relevant. Will it necessarily happen? No. But we don’t know, and that’s rather significant. The program very well may sit where it is and go no further. And honestly, if that’s the case, then I’m actually not all that bothered by it. If I can safely assume that it is not misused.

            But the concerns that it won’t end u here, especially given the secrecy and the nature by which we found out they were doing this much in the first place, I am hardly put at ease here.Report

            • Avatar Shazbot3 in reply to Will Truman says:

              The backlash to overcrowding of prisons and harsh sentences is real and growing. Not fast enough, but it is. I suspect it is partly due to the costs of those prisons, but also due to increasing knowledge that punishments aren’t effective incentives against the poor and the desperate who are getting thrown in prison.

              Also, conservative politicians at the national level are less awful in their use of racist sentiment to create popular support for tougher laws.

              And the backlash against drug laws is to decriminalize or legalize marijuana AND weaken penalties against other kinds of drug use.

              Here is one poll.


              IIRC, mandatory minimums and 3 strikes-style laws are more and more on the way out of legislatures. Slowly, but even in the south I think.Report

              • Avatar Shazbot3 in reply to Shazbot3 says:

                Here’s a better survey:


                I bet you’d get even better results today. (I am sure someone can dig up better data than this.)

                The problem is that it takes a while for the backlash to overcome the inertia of doing things as usual, especially in the U.S. where politicians are rewarded for inaction and punished for action, but the change is happening.

                This can be especially seen in California where voters last year approved Proposition 36, a measure that provides for mandatory treatment, rather than incarceration for first time drug offenders. “The general public no longer believes that incarcerating people for non-violent drug offenses, and subjecting them to severe mandatory minimum sentences, is a reasonable approach to the problem of drug abuse,” said Michelle Alexander, Director of the Racial Justice Project of the ACLU of Northern California. “The public strongly supports a return to rehabilitation, including job training, education and community service for non-violent offenders.”

                The study found that 74% of Americans polled favor drug treatment instead of prisons for non-violent illegal drug use; 62% believe that laws should be changed so that fewer non-violent crimes are punishable by prison; and 61% oppose mandatory sentences that require an automatic sentence for non-violent crimes.

                “In California, elected officials have rushed to pass laws like Three Strikes that have only led to the massive incarceration of young African American and Latino youth,” said Dorothy Ehrlich, Executive Director of the ACLU of Northern California. “This has led to a 450% increase in incarceration over the last 20 years. Today California has the shameful honor of imprisoning a higher percentage of its population than any other nation in the world. This study shows that Americans no longer support this massive incarceration of its citizens for non-violent crimes.”

                Instead of prison, the study found that Americans strongly favor alternatives for non-violent offenders. The poll found that 81% of Americans prefer alternatives for non-violent offenders such as mandatory education and job training, 80% favored community service and 88% strongly favored skills training in prison for inmates.

                Again, the problem is that racist politicians like Bush the Elder were able to blame the rise in crime that was actually caused by lead (and changes in social structure, IMO) on race and scared people into thinking that tough penalties against those people (i.e. the blahs like Willy Horton and the Cadillac driving T-Bone eaters) were justified to keep us people (white as white bread) safe.

                But over time people have realized this is nonsense. And people are still racist, but they see that tough prison sentences haven’t solved anything for anyone and are cruel.Report

      • Avatar Mad Rocket Scientist in reply to Shazbot5 says:

        So in the long run, sure, such creep may be arrested & reversed. But in the short term, how many ostensibly innocent people will have their lives turned upside down or destroyed in the process?

        I’m surprised that a person who has argued in the past against changing welfare programs because some may suffer seems OK with the government having such broad powers for the moment because it’ll probably get better later.Report

        • Avatar Shazbot5 in reply to Mad Rocket Scientist says:

          Lives destroyed and turned upside down? Umm, almost none, I think.

          Bradley Manning. Maybe, Snowden. Though in both cases they did break a contractual promise to not do what they did.

          Who else?Report

          • Avatar Mark Thompson in reply to Shazbot5 says:

            How would we even know?

            And there is the crux of the problem.Report

            • Avatar Shazbot3 in reply to Mark Thompson says:

              Yeah, the main problem is lack of transparency and accountability. AQ poses a threat to lives, but democracy requires that we know what the government is doing so we can evaluate it and that our representatives know all the details. Bush tried to get us to forget that and Obama is trying to fudge it, but you can’t really do either.

              IMO, the program probably hasn’t been used in harmful ways and probably won’t be in the foreseeable future, and there is no slippery slope, but you can’t have rules with no transparency in a democratic country. (Except maybe in the short term in emergencies, when in the long term everything will go public.) It just doesn’t work.Report

        • Avatar Shazbot5 in reply to Mad Rocket Scientist says:

          I think we also need to take into account the possibility that the program may have been effective in preventing lives from being destroyed, literally.Report

          • Avatar Burt Likko in reply to Shazbot5 says:

            While this is not a trivial concern, I think it begs the question raised by Tim in the OP about whether we’re really looking at trade-offs and balancing on some sort of a “privacy versus security” continuum. Although for different reasons, I concur in the OP’s rejection of the thesis that such a one-dimensional analysis is appropriate.Report

            • Avatar Shazbot5 in reply to Burt Likko says:

              I was respnding to a more specific laim by MRS that dealt solely with the utilitarian implications of keeping or dirching the program.Report

              • Avatar Mad Rocket Scientist in reply to Shazbot5 says:

                And how many folks languish in Gitmo when they’ve been ordered released due to insufficient evidence, yet there they sit.Report

              • Avatar Shazbot3 in reply to Mad Rocket Scientist says:

                I am not pro-Gitmo.

                You are thinking of the Republicans.Report

              • Avatar Mad Rocket Scientist in reply to Shazbot3 says:

                Same thing in my mind. Government takes action against an individual, judge/jury decides the evidence isn’t sufficient, government doesn’t care, still destroys a life.Report

              • Avatar Mad Rocket Scientist in reply to Shazbot5 says:

                Although, it’s a secret program, so we have no idea, nor can we ever (because, well, it’s SECRET), how many lives have been damaged by this.

                Our government may crow when it nabs a true bad guy, but when it drags an innocent through the mud, we only hear about it if said innocent is attractive enough to make the news, and that won’t necessarily tell us that a massive database was used to target the person (because, it’s SECRET).

                Government abuse of the citizenry is at the core of my libertarian streak, because I figure such incidents are like rats, for every one you see, another hundred hide in the walls.Report

              • Avatar Shazbot3 in reply to Mad Rocket Scientist says:

                “it’s a secret program, so we have no idea, nor can we ever (because, well, it’s SECRET), how many lives have been damaged by this.”

                This is hyperbolic and conspiracy-theory thinking.

                If the program had harmed enough people, we would know about it.Report

              • Avatar Mad Rocket Scientist in reply to Shazbot3 says:

                It’s not on me to prove harm is done, it’s on them to prove harm has not been done. They work for me, not the other way around.Report

              • Avatar Stillwater in reply to Mad Rocket Scientist says:

                Personally, I think merely collecting, storing, mining, etc that data is a harm. I assume that Shaz is referring to he existence of more conventional harms as being required to make a case against PRISM. I don’t see that condition needs to be met for critics to justify their views. I think the argument that government is required to meet of justification suffices since I tend to think that’s the appropriate definition of government: all and only those actions which can be affirmatively justified.Report

              • Avatar Stillwater in reply to Mad Rocket Scientist says:

                OK, maybe not all, but certainly only.Report

          • Avatar Will H. in reply to Shazbot5 says:

            Just like those FBI agents at the Watergate Hotel were trying to keep someone’s life from being destroyed.Report

            • Avatar Jaybird in reply to Will H. says:

              You know, I appreciate the theory that “Our Government *SHOULD* be spying on the terrorists!”

              I just don’t appreciate how many questions I have to beg and how many civilians being spied on I have to put up with to get there.Report

              • Avatar Shazbot3 in reply to Jaybird says:

                Snark is not argument.Report

              • Avatar Stillwater in reply to Shazbot3 says:

                Shaz, you jumped the snark on that one.Report

              • Avatar Jaybird in reply to Shazbot3 says:

                That was actually me being forthright. Snark would be “Of course the government has a warrant for the terrorists. It’s called the Authorization of Military Force” and then me questioning whether the people who complain have something to hide.Report

              • Avatar Shazbot3 in reply to Jaybird says:

                I never really know what you’re talking about, so forgive me.Report

              • Avatar Will H. in reply to Jaybird says:

                I think your snark cuts more to the crux of the matter– that it’s more of a military type of action wrought on the citizenry rather than a law enforcement effort.

                In another 15 yrs, maybe we’ll see some kind of DHS security badge for pizza delivery drivers.
                We wouldn’t want the terrorists to get their hands on our pizza.
                I hear they’ve already been spreading some kind of chicken alfredo stuff on a crust and calling that pizza out West somewhere.
                If we allow that sort of thing to continue, our way of life could be destroyed.

                National Guard I’ve seen out after hurricanes and such; directing traffic mostly.
                Meanwhile, diddling people’s grandmas at the airport is “law enforcement.”
                This whole role reversal thing is getting weird.Report

    • Avatar Tim Kowal in reply to Burt Likko says:

      I’m not fluent in the history and meaning of “privileges,” i.e., understood in the context of “privileges and immunities.” What I will say is that I distinguish certain constitutional rights such as the right to a jury trial, habeas corpus, and confrontation of witnesses from natural rights. The difference is that these rights are procedural. They are necessary for a limited constitutional government that respects the individual. They arise by natural or right reason with respect to the relationship of the individual and such a government. But they do not arise in the individual himself as a part of his nature as a human being.

      I don’t think your employment contract example presents a close call. If I promised to work for you and you relied on that promise to your detriment, it would be wrong to break that promise without justification, e.g., discovering that you misrepresented facts upon which I based my promise. As we know, the law nonetheless allows employees to freely leave jobs, so it’s lawful to break my promise. But that’s not the same as a justification between the employer and me. The rule that allows my bad conduct hopes to further the “common good.” But the “common good” is a fiction. Good doesn’t arise from a “common.” It arises in individual transactions between individuals.

      That is to say, whether something is justifiable is different from whether it is legal or even whether it advances a “common good.”

      The “close-call” cases are resolved legitimately not because they are always resolved correctly, but because there is a fair hearing with notice and opportunity to respond and put on one’s evidence. The only safeguard against “justifiability creep” is the people and what they, en masse, regard as “legitimate.”Report

      • Avatar Burt Likko in reply to Tim Kowal says:

        Okay, maybe I chose a bad example of a “close call.” We agree, though, that there are close calls.

        I find this last paragraph quite interesting. In a past exchange, you and I sparred over the notion of whether the proper interpretation of the Constitution was subject to change over time as the language changes: I argued for more malleability and you argued for less. Here, you’re suggesting that over time what is considered justifiable is malleable over time, and that’s appropriate.

        That seems inconsistent to me, although I do appreciate the difference between justifiability (a concept which speaks to ethics or morality) and the law (the positive law, at minimum, may well be divorced from ethics and morals). It seems to me that the natural law, if there is such a thing, must of necessity be enduring and not malleable. If not, how is it different from the positive law? How is the notion of malleable-over-time ethical justifiability of actions (and thus extent of natural rights) reconciled to the notion of an enduring and constant natural law? Or have I missed something?Report

        • Avatar Tim Kowal in reply to Burt Likko says:

          It seems inconsistent to me, too. I was thinking in terms of descriptive legitimacy when I wrote that. I wasn’t thinking specifically in terms of constitutional questions, just in terms of what actually is the practical backstop/ultimate arbiter of what outcomes are legitimate. In that case, it is the people. But the people have ceded some of their sovereignty on certain questions, and if they continue to be an enlightened people, they will honor and abide by that as a normative matter.Report

  7. Avatar b-psycho says:

    The “if you have nothing to hide…” crap is toxic all around.

    Without probable cause to suspect an individual of wrongdoing, & a warrant targeting specifically the individual suspected, there is no reason whatsoever for tracking. At the very least due to the scope and blatant nature of what’s been exposed, even the reformist inclined should be calling for the NSA as a whole to be abolished as a start.Report

    • Avatar Burt Likko in reply to b-psycho says:

      I wouldn’t go that far. There is a need for interception of electronic communication as part of overall intelligence efforts; the NSA or something like it needs to exist.

      It sure seems that there isn’t a whole lot of effective oversight of it, though, either legislatively or judicially.Report

      • Avatar b-psycho in reply to Burt Likko says:

        What if effective oversight (at least by now) is impossible?Report

        • Avatar Burt Likko in reply to b-psycho says:

          That would be a catastrophe, because it would require that we abandon the principle of limited, divided government. We are not in the realm of catastrophe — abdication of authority to impose checks and balances, perhaps, but that is not catastrophic because it is remediable.Report

          • Avatar b-psycho in reply to Burt Likko says:


            Seriously. Seeing frequent failures of the whole “checks & balances” thing is part of what informs my skepticism of government itself. That declared restraints on allegedly legitimate authority (“representative” government) aren’t read & responded to as Void If Crossed lines doesn’t bode well for the idea of restraint.Report

          • Avatar George Turner in reply to Burt Likko says:

            We may not be past the point of catastrophe, but we’re at the point where a whole lot of people on both sides of the aisle are seeing the program as a direct threat to the integrity of our democracy, our liberty, and the Constitution of the United States, causing many to mistrust and fear their own government.

            That alone means the program is not worth it, especially since the bomb plots the program stops seem to involve retarded people who need the FBI’s help to strike a match, and who don’t approach the number of people being killed by armed toddlers. The ultimate authority rests with the people, and as there are severe penalties for uncovering the government’s secrets, the penalties for uncovering all the secrets held by the people, who are superior to the government, without their clear and informed consent, must represent a much, much larger breach and a much more egregious violation of our natural rights, including those held under the Tenth Amendment.Report

    • Avatar Tod Kelly in reply to b-psycho says:

      “The “if you have nothing to hide…” crap is toxic all around.”

      I should do a post on this, because I think this is thinking is both quite prevalent and often wrong.Report

  8. Avatar Mad Rocket Scientist says:

    Like with a lot of databases, the problem isn’t the data itself, or the collection thereof, it’s the fact that people are a$$holes and there is always the very real risk that they’ll use such data to advance their own agenda, be it agents listening into & recording phone sex between deployed troops & their spouses back home, or targeting political rivals, or going after persons undesirable (like cops who bust other cops instead of extending ‘Professional Courtesy’).

    Can we build databases that can not be searched directly, but rather have algorithms that flag items & only then can a person lay eyes on the data? Maybe make the collected data itself inadmissible in court? That way LEOs will know who to look at, but have to collect further evidence the old fashioned way (with warrants & the like).

    I am sanguine about the collection itself, my worry is a lot more about the government employee (cop, agent, analyst, or just bureaucrat with more access than they need) who has decided, for whatever reason (I cut them off in traffic, I called them a bad name, I didn’t prostrate myself adequately before them, they just don’t like the cut of my job, etc.) that they want to harm me, and they have the ability to access this vast pool of data, find me, and burrow into my life for no justifiable reason.

    That is what keeps me awake at night.Report

    • Avatar Mad Rocket Scientist in reply to Mad Rocket Scientist says:

      that should be “the cut of my jib” – damn autocorrect…Report

    • “Like with a lot of databases, the problem isn’t the data itself, or the collection thereof, it’s the fact that people are a$$holes and there is always the very real risk that they’ll use such data to advance their own agenda….”

      I took this to be George Turner’s point above. I don’t think he was making the case that Obama used PRISM to, for example, turn the Obamacare decision in his favor, necessarily. Instead, because of PRISM, the president and his political allies are entitled to no presumptions in their favor whatsoever. The burden of proof is all his that he didn’t do it. I don’t happen to believe he went that far, but I’ve got no reason to believe that other than my subjective impression of the man himself. That ain’t much to go on.Report

      • Avatar Jaybird in reply to Tim Kowal says:

        (Incidentally, this is why the IRS scandal is such a big deal. If it enters into the public consciousness that it’s just and proper for the, for lack of a better term, Catholics to use the functions of government against the, for lack of a better term, Protestants, we’re going to see some, for lack of a better term, shit.)Report

      • Avatar Mad Rocket Scientist in reply to Tim Kowal says:

        Hell, Obama didn’t even have to order such things, or even (wink wink nudge nudge) suggest them. The people working for him are more than capable of using such data to further the agenda of their boss.

        I mean, we do have the whole “Cult of the Presidency” thing going on…Report

        • Avatar Barry in reply to Mad Rocket Scientist says:

          Their boss was a Republican (the head of the IRS), appointed by Bush.
          As for targeting, it seems that they were also hitting on liberal groups.Report

          • Avatar Barry in reply to Barry says:

            Oh, and the transcript of the questioning of the IRS people by the House was something which the GOP didn’t want released in full. That right there is bad news; when the prosecutor only wants to release a heavily-redacted tape of an interrogation, it’s not because he doesn’t want to bore people.Report

  9. Avatar Citizen says:

    Risk continues its repeated lesson. How far will our hand reach into the fires of anomie this time?Report

  10. Avatar Stillwater says:

    CK, I’m moving this response down here to embiggen the

    I’m not frustrated by the subject matter CK, I’m frustrated by the combination of your complete certainty in the truth of a view you can barely articulate – and only then incoherently – which has nothing to do with any of the topics being discussed on this thread. As Kazzy said about your last comment, it doesn’t get more meta than that.

    Fact is, and I think this is important to remember given the last paragraph of your most recent comment, my initial response to your comments to b-psycho was that people are expressing their views about PRISM and that doing so is a valid, perfectly legitimate activity for people to engage in. Your very long convoluted response was that that act of expression submits to the following analysis: a speech act is the expression of a) an intention on the part of the speaker to b) change the mind of another. I’m still not sure what that has to do with beliefs about PRISM.

    But let’s suppose that analysis is correct for a moment. If that’s the case, then your initial criticisms of b-psycho, Mark T, etc., were entirely misplaced since your objection to those people’s comments (speech acts, arguments, whatever you want to call them) resolved to whether or not those comments as a matter of fact changed people’s minds. Of course, whether or not an an argument or a comment failed to achieve it’s intended goal (on this analysis!) is an interesting point consider, and a worthwhile activity. There’s even a word for it: it’s called a “disagreement”.

    Two things about that initial offering on your part: 1) you cannot possibly know whether other people had their minds changed by those comments. You can only speak about your own case, and whether your own views changed. Presumably they weren’t, tho that’s not entirely clear since you haven’t offered your own views of PRISM except indirectly. 2) Those comments satisfied all the conditions of a speech act (according to your analysis) and are therefore perfectly legitimate forms of expression. Which was, in fact, the point I made right at the beginning of the really long and somewhat painful thread: that people are offering their reasons for opposing the program without any expectation that those reasons will in fact change other people’s minds.

    It’s at this point that things got really weird. You’re response to that sound (in my mind, anyway) objection was to dig in and stipulate that those arguments failed because they weren’t logically sufficient to change the views of PRISM supporters, and the argument for this conclusion was to cite a series of hypothetical but very plausible types of people who actually support PRISM and government (I’m too lazy to find the exact comment, but it was to b-psycho). Presumably, the argument you were making at that point was the following: that because the analysis of a speech act commits people to intending to change people’s minds, the act is only successful if it not only in fact changes their minds, but logically necessitates changing their minds. (Or in technical speak, that the argument is logically sufficient to achieve the desired goal).

    But why think that? That’s an absolutely ridiculous standard to apply to communication or speech acts or arguments or disagreements. It’s also descriptively inaccurate wrt how people’s beliefs are formed, held and defended. But most importantly, it’s inconsistent with your own analysis of what constitutes a speech act.

    Now, I think what you offer as an analysis of speech acts is perfectly acceptable for a particular type of activity. Namely, an act of communication designed to persuade another to accept the speaker’s views. On that analysis, and for the types of communicative acts which legitimately fall under that analysis, the goal of the communicative act is to actually change people’s minds and failing to do so constitutes a failure of the speech act. (Personally, I tend to think that speech act is best called “propaganda”, but be that as it may …) This could be distinguished from another type of speech act where the goal is to provide reasons that could change a person’s mind (not that those reasons must). And there are others as well, which I’ll get to below.

    Here’s a question: Do you think everyone opposing PRISM on this thread is engaging in an intentional act of trying to persuade another when the make the comments they do? You have a lot of arguing to do to establish that all expressions of opposition are made for the explicit purpose of persuading the listener to adopt the speaker’s beliefs. I mean, here’s an interesting and I think decisive counterexample to that view: when I express to you my views about PRISM, I don’t particularly care whether you adopt my views even tho I may care that you recognize them and perhaps even respond to them.

    Ooops! Did I just unintentionally walk right into your trap, since it’s readily apparent that at this point, you’ll respond by saying “if that’s the case, Stillwater, then you’re effectively conceding that you have no point when you express those views”? Not so, CK (tho you’re correct that this conclusion logically follows from your fully general analysis of speech acts).

    When I engage in a dialogue with you, a constitutive part of the conventionally agreed upon practice (one of the rules, so to speak) is that I expect you will consider what I’ve said and respond to my views. That you’ll either offer a counter argument showing disagreement, or express agreement, or confusion, or agnosticism, or whatever. But here’s the point: when I express a view, it’s not the case that I’m necessarily trying to persuade you to accept my beliefs. There are other types of speech acts which happen all the time and are perfectly acceptable.

    I might, for example, be testing the strength of my own arguments and the relative degree of certainty I assign to them. I might be antagonistically challenging someone because I want to put a smack down on them. I might be offering a different pov to someone who seems completely certain of their own views, and the purpose of my comment is merely to point out that people actually disagree about stuff. I might be merely engaging in an elaborate monologue because I enjoy hearing myself talk and ultimately don’t give a rats ass if anyone actually pays attention to anything I’ve said. I might just be chatty and find you a good conversationalist. The list goes on and on and on. And here’s the point: it seems to me that the only way for you to make all these varied types of speech acts consistent with your general analysis is to beg the question and stipulate that all speech acts submit to the same analysis.Report

    • Avatar CK MacLeod in reply to Stillwater says:

      Stillwater, thanks for the embiggening. I’m not confident, however, that I’ll have enough time to give these questions the level of attention that a serious discussion of them would require, but I’ll offer some provisional observations, beginning on a partly personal note.

      1) It’s not helpful, in my opinion, to introduce broad, negative, sarcastic, and otherwise non-consequential descriptions of the other person’s argument into most discussions, but especially ones of this difficulty. If you find me inarticulate, incoherent, off-topic, convoluted, insufferably verbose, and too dense to understand what words like “impossible” or “disagreement” mean, then the only question is why you would be injuring the reputation of the League and burdening fellow commenters by indulging me at such length. Are you some kind of sadist who takes pleasure in humiliating a wretch like me? What’s wrong with the rest of the participants here that they don’t insist on a stop to such a pathetic display?

      If you think that this discussion with me is worth pursuing, that it’s not too “meta” to be pursued at all, then stop telling me how worthless it is and how worthless my contributions to it have been. It’s annoying to me, it’s self-contradictory for you, and overall it’s a waste of space and energy.

      2) Following from the above, but more material to our discussion, when I review the initial exchanges to which you refer to as unclear or non-communicative, they mostly seem clear enough to me, as you might expect they would. If you think “convolutedness” and “incoherence” are a problem worth discussing, please point specifically to the particular problematic comments or passages. I have no idea, specifically, which comment or set of comments constitute the “very long convoluted response” under the b-psycho exchanges, are leading you to what seems to me to be an unjustified conclusion, and seem to figure prominently in your subsequent remarks.

      Since you apparently had something specific in mind when you wrote the comment, it would save me time and be helpful to the discussion if you linked to the comment or comments or quoted from them, or both.

      3) As for the definition of speech act that you attribute to me, I think that under careful attention to terminology, but only under that proviso, it might be serviceable enough.

      The problem is that “change the mind of another” is, to say the least, an imprecise expression. I am taking the time to look at this expression closely, because references to “changing minds” under subtly shifting or, in my view, misleading assumptions, appear throughout your comment.

      As you recognize, though you do not always observe the distinctions, “changing someone’s mind” can mean many different things. One can, for example, “change someone’s mind” in the sense of causing a change in political position, or change someone’s mind about a topic or person or about aspects of a topic or person.

      At a high level of abstraction appropriate to a broad theoretical inquiry into the nature of speech or speech acts, specifically focused on the question of intentionality, any communication whatsoever originates in an intention to achieve some kind of “change of mind”: a transfer or conveyance of content from one mind (as we say) to another, causing the latter mind or state of mind to be “changed.” “Content” and “intent” are, you will notice, related terms. In relation to a definition of speech acts, they are connected: I am always intending for some content to reach your attention on the way to the formation of some new content and possible new or altered intention on your part. This acceptance of a new content is a “change of mind” on the part of the listener or reader, and it can, as we have observed, take different forms.

      The implied cycle or spiral of intentionality can be sketched schematically easily enough. It will be detectable in or be implied by all speech acts and indeed all acts as acts, even “unconscious” ones, though the demonstration will require sensitivity to different types of intentionality akin to (because it’s finally the same thing as) those relating to “changing minds.”

      This mode of argument, including the proposition of a thesis on implicit intentionality as definitional for speech acts, is not “begging the question” it is defining the terms in relation to a particular question. Obviously, you argue that the definition is faulty or useless, but responding to the question “what is a speech act?” by proceeding to an arguable definition of speech acts is not tautological: It is the direct response to the question. It also happens to be a response that necessarily circles back onto the question itself, since any posing of any question will also, obviously, qualify as a “speech act.” To put the matter in your language, the only way to answer that question is to propose an “analysis” to which “all speech acts [including the act of asking the question] submit.”

      4) That you’re “not sure what that has to do with beliefs about PRISM” seems unsurprising, since by the time we’re discussing theories of communication and intentionality, we have strayed rather far from the original topic of the thread. As I noted, I believe that this discussion is made more difficult by the fact that we are still, even at this point, trying to carry on two discussions at once.

      5) I don’t accept your characterization or summary of my “objection” to the anti-PRISM argument, i.e., that it “resolved to whether or not those comments as a matter of fact changed people’s minds.” My overall perspective on PRISM and the PRISM controversy is that those who oppose the program have failed to make a good case for opposing the program. I believe they fail in multiple ways, and to multiple effects. That their argument “as a matter of fact” may not have succeed in “changing people’s minds” (in the narrow political sense) would be one typical effect of a general, multi-faceted failure to make a case. Such a failure might also be attended by the advancement of arguments that are independently problematic.

      It’s a free country, and an mostly open blog, so people can try to make whatever case they want to to try to make. Sometimes, a case may be so bad or so poorly advanced that those putting it forward might seem to have been better off if they had not introduced it in the first place. A strong counter-argument may carry that implication, but in a free country and a mostly open blog, we generally tolerate efforts to make one’s counter-argument as strong as possible.

      6) Since I don’t accept your characterization of what my argument “resolved to,” I don’t have much to say to your ensuing arguments based on that characterization. For example, your “sound” objection was, in my view, to an argument I never made, or that at most was one way to interpret one aspect of one of a series of arguments I made.

      You do make a couple of observations that I find independently confounding, however:

      7) I don’t see how there can be any un-clarity at this point about my views on PRISM or the PRISM controversy, views that I’ve offered repeatedly both on this thread and others. To review, there’s nothing I’ve learned about it that doesn’t comport with what I’ve long known based on public information, or been given reason to assume based on my own experience with telecommunications and computer systems, about law enforcement capabilities. I have yet to see a good reason to consider the “mining” of metadata to be “unreasonable search and seizure” of the type identified under the 4th Amendment. The justifications offered for the program appear plausible to me, and I don’t see any realistic alternative to trusting officials, high-level appointees, career civil servants, and contractors to handle security-related matters in general, but including this specific type, under various degrees of “opacity.” I also do not support the tactics and language of Snowden and his supporters, and find them in some instances offensive and worrisome.

      8) Proceeding from your “sound objection,” you describe things getting “really weird,” then go on to ask why I would think something “absolutely ridiculous,” not to mention “descriptively inaccurate” and “inconsistent with [my] own analysis.” All of this is based on an argument of mine that you are “too lazy to find.” Really? After all this, you’re too, your word, lazy to find the statements that the rest of your comment turns on, before leading to various negative characterizations of my argument and its implications, and in a way that seems intended to reflect on me personally? Maybe if you looked closely at my specific argument at whatever specific point, in specific context, then your version of my argument would more closely approximate the argument I made or was trying to make.

      I have the same feeling about the Professor’s latest criticisms of me, incidentally. My own frequently re-stated view is that we should resist making these discussions personal, but, if you feel you must fault someone else’s conduct or approach or character in personal terms, you should at least cite specific comments, in context, and otherwise extend every effort to be fair. (I tried to do that when I described you, Stillwater, as showing bad faith or arguing in a way that represented bad faith, and I also tried to justify that description as germane and in fact central to our discussion to that point.) Since being fair is difficult, maybe it’s better not to set out at all on a personalized theme if you don’t have the time and energy to do it right.

      The rest of your comment consists, in my view, of remarks that do not rise to the level of precision required by the higher level topic (or “meta-topic”). I’ve already remarked on that problem in connection with the expression “changing minds.” I hope you do not take this criticism personally, because I do not claim to have achieved requisite precision either. It may be that properly handling these questions is simply beyond us for now.

      In the last connection I have repeatedly referred to my own lack of time, though I find myself having devoted another morning to this conversation. I hope it goes without saying that, if you choose to reply to this comment, I will read your response with interest, and may even prepare a response to it if you invite one. I don’t think I will be able to reply in turn today, however, and I can’t make any promises.Report

      • Avatar Stillwater in reply to CK MacLeod says:

        CK, here’s my short response: all you did was critique my views while offering nothing substantive in response to what I actually wrote. I challenged the coherence of the views you expressed – in fact, the entirety of my comment was an argument justifying that claim – yet you haven’t offered a single substantive reason to disabuse me of my view. I get that you think this is evolving into personal attacks, but I don’t know how to say “I think the views you’re expressing are incoherent” in any other way. I even gave examples to establish the point I was making!

        I’ll give this a better read when I the initial shock of you responding with even more analysis – and negative analysis at that – to a good-faith gesture on my part to clearly articulate my views of where this discussion is, how we got here and what follows from it. Personally speaking, I don’t think resorting to claims of uncharitability or even incivility are justified at this point. Since the beginning of this thread I’ve been asking you to clearly articulate your objection to some comments. Upthread, you did just that. And I responded it. Yet, you seem to think I’m engaging in foul play when I disagree with you about what you said there, and perhaps more importantly, disagree with the frame of reference (the analysis) by which that question is rendered intelligible. Personally speaking, I don’t think I am. How else am I supposed to express disagreement with you except by expressing disagreement?Report

      • Avatar Stillwater in reply to CK MacLeod says:

        Also this:

        The rest of your comment consists, in my view, of remarks that do not rise to the level of precision required by the higher level topic (or “meta-topic”).

        Well sure. I can see how you’d see it that way since my argument is effectively a rejection of going meta. People do what they do. They are what they are. Analyzing individual actions from the view of a theory can have some utility and lead to interesting claims. But assuming that all actions can be explained by a theory is a mistake. And what I’m arguing is that the analysis, the theory, you’re employing doesn’t apply to a whole slew of things people do.Report

      • Avatar J@m3z Aitch in reply to CK MacLeod says:

        I have the same feeling about the Professor’s latest criticisms of me, incidentally. My own frequently re-stated view is that we should resist making these discussions personal,

        Once again, it’s about communication style, whether or not your style contributes to the understanding you claim to value. To the extent it’s “personal,” it’s because it’s your style that we’re writing about. But as the observant and unbiased reader will note, I have repeatedly criticized that general style of turgic academic prose. As to you personally, your character, I have neither interest nor any hints beyond your refusal to act considerately toward your readers. Beyond that, for all I know you buy up the local Girl Scout’s entire stock of cookies, give them a big tip on top of the price, then personally deliver the cookies to the less fortunate, along with warm blankets and clean clothes. Wouldn’t much surprise me at all. So I do wish you’d stop trying to spin this as “personal.” It’s about communication–you either make a sincere effort to communicate clearly with others, or you do not. It’s that simple.Report

      • Avatar Stillwater in reply to CK MacLeod says:

        Thesis: to say there’s no “should” implied in “their answers and views” is the same as saying there’s no “point” to them.


        1. A speech act =df the expression of a) an intention on the part of the speaker to b) change the mind of another.
        2. Given 1., the purpose of a speech act is to change the mind of another.
        3. Therefore, if there is no attempt to change the mind of another, there is no purpose to a speech act.

        CK, do you see the circularity of that argument or is it just me?Report

        • Avatar Stillwater in reply to Stillwater says:

          Here, I’ll even provide the link to your own words:

          A href=”″> to say there’s no “should” implied in “their answers and views” is the same as saying there’s no “point” to them.Report

  11. Avatar Barry says:

    Tim: “What’s the difference between a “sacrifice” and a “tradeoff”? “‘
    (my apologies if somebody has already answered this)

    A ‘sacrifice’ is when it hurts me; a ‘trade-off’ is when it hurts you.Report

  12. Avatar miguel cervantes says:

    ‘Positive rights’ who talks like that, ah the constitutional lecturer in the White House, under whom Times Square was almost blown up, where an Army base was fragged, and a major public event was subject to an IED, despite repeated warnings, by our ‘reset’ Russian allies, no it’s a ‘food topping and a floor wax’ and well recall he campaigned against all this stuff. along with ‘air raiding villages;Report