Author Archives: Chris Byrne

Never Again

On July 4th, the United Nations will convene a conference on “the international trafficking and trade in small arms”; which is essentially shorthand for U.N. gun control.

For some time now the U.N. has promulgated treaties which would effectively ban private firearms ownership in signatory states. They have also attempted (thus far unsuccessfully) to add such provisions to their charter, and the universal declaration of human rights; which all U.N members are required to be signatory to.

The various gun rights organizations in this country (and to a lesser extent around the world), are making a very big public relations deal about this; and they have been for quite some time (since the 1970s in fact, but especially since Wayne LaPierre became president of the NRA. He’s even written a book on the subject which a kind reader is sending me to review). Conversely the statist media around the world are using these groups opposition, and sometimes seemingly paranoid rantings (believe me there are just as many whack jobs on our side as on theirs) of these groups supporters as their own public relations bonanza.

Which, in the U.S., is all this is; public relations.

The bald fact is that the U.N.; and the various NGO’s who support this initiative; have the stated and trumpeted goal of banning all private firearm ownership. This is not even an open question, it is their stated goal. It may not be their short term goal for today; but it is what they want in the long term, and universally; and they will stop at nothing to achieve their goal.

So what.

No treaty may take precedence over the U.S. constitution. It’ written right into the document itself; the constitution is the supreme law of this land. The constitution protects the right of the people to keep and bear arms (note: it does not GRANT that right, it recognizes and protects the pre-existing right). This is incontrovertible.

We in America are safe from the U.N. and other NGOs manipulations in this matter; until such time as our constitution is amended; or forcibly ignored (but that’s another topic entirely). The rest of the bleating from the NRA and other organizations is essentially fundraising, and consciousness raising. They are using this issue to alarm folks who might otherwise not be paying attention (and god knows there are millions of gun owners who don’t); into understanding that there are organized, well funded, and even extranational (or transnational) efforts to abrogate their rights.

That part of the effort, or at least that purpose attached to it, I applaud greatly; but screaming “The UN is going to take your guns” to Americans is both untrue, and crass.

This is not to say that the UN’s efforts in this regard should not be opposed; they should; and not simply because the U.N. is a corrupt, criminal, and fundamentally unsound organization (though that is a sufficient reason, it isn’t the only one).

This reason alone is both sufficient, and necessary: The only effective long term tool to combat genocide and democide, is an armed and educated populace.

Please note it takes both components.

An educated unarmed population will still be slaughtered by those intent on enforcing their will on them; or in effecting their destruction.

An armed, uneducated population, is nothing more than a tool for a dictator to effect such genocide and democide.

Some would cry “but what can private individuals do against an army, or a government?“.

Let me tell you right now, it is amazing what an armed and educated population can do; even when their arms are limited, scrounged, and inferior; and their numbers seemingly too small to matter.

I could give you many examples, but I believe one is sufficient: our nation was founded by such men.

Even when victory is remote, one can choose to fight; fight for the chance to be free; and choose to be free in fighting rather than to be a slave, or to be slaughtered.

In 1943, no more than 200 Polish, Hungarian, and Lithuanian Jews held two divisions of NAZIs at bay for two months, using only captured and scrounged weapons; with which they had no training or experience (before the fighting ended another 750 men joined them). None of these men were soldiers, they were tailors, and scholars, and jewelers… but they had intelligence, and a will to survive.

Yes, they were eventually slaughtered; as the NAZIs did to so many others; but they died defending themselves and their families.. or what was left of their families. They were not simply mown under like wheat.

Even if one cannot prevail; it is sometimes better to fight and die, than to be led to the slaughter.

They had a choice, and they fought, and they were free for at least a time. They chose death fighting, over being slaughtered like cattle, or made to be slaves in the concentration camps.

In 72 AD another group of Jews; this one perhaps 1000 strong, but 2/3 of them women and children; made a similar choice. They withdrew themselves to the fortress at Masada, where they were besieged by perhaps 10,000 Romans. For two years they held the Romans at bay; but they received no support from their disarmed brethren; who were content to live under the heel of Rome.

Without outside assistance, they did not have the arms sufficient to resist the Romans; but rather than be enslaved or executed by them, thy chose to die; poisoning each other, and slitting each others throats.

“Since we long ago resolved never to be servants to the Romans, nor to any other than to God Himself, Who alone is the true and just Lord of mankind, the time is now come that obliges us to make that resolution true in practice…We were the very first that revolted, and we are the last to fight against them; and I cannot but esteem it as a favor that God has granted us, that it is still in our power to die bravely, and in a state of freedom.”

— Elazar ben Yair, Patriarch of Masada

An armed man need not choose to die at the hand of his persecutors; he may fight them, and he may win; he may fight them, and he may die; or he may be overwhelmed by them, and he may take his own life; but an armed man has a choice.

Leonidas held the pass at Thermopylae with 300 spartans, (along with 700 thespians, and 400 thebans); against many thousands (anywhere from 800,000 to several million) of Persians under Xerxes. He knew the battle was lost, but he would not submit. When Xerxes petitioned the Spartans to lay down their arms, and they would be spared; Leonidas responded “?O??? ????“… “Come and take them!”

They made their choices to die fighting, to die free. The unarmed man has no choice but to submit.

An unarmed populace, with an enemy bent on their genocide: Germany, Poland, Hungary, Lithuania, Romania Serbia, Bosnia, Armenia, Rwanda, Congo, Sudan, Kurdistan, Cambodia…

Hundreds of Millions dead in the 20th century alone… HUNDREDS OF MILLIONS

The U.N. must be stopped in this; if for no other reason than to prevent these horrible things from happening once more.

Never Again

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Democracy, Stability, and Science Fiction

A very common conceit in fantasy and SF, is the “time traveller gets stuck in the past and builds an ideal society”, and it has been through the entire history of the genre going back a few hundred years. In fact I think the very first SF/F book I ever read was “A Connetticut Yankee in King Arthurs Court” by Mark Twain. It’s absolutely iconic of this type of SF/F.

Anyway, theres a good reason for the popularity of the type, in that it makes a good story. Theres just remendous potential for exploration, and it engages the authors mind and passions, which although it can degenerate into wankerism, can also produce amazing things.

Even more so, it engages the readers mind (assuming they are an engineer type, social, political, or hard sciences oriented) in similar pursuit. I dont think theres a group of geeks, gun guys, or re-creationist (funny how much overlap there is there) who hasnt had discussions about what they would take back in time with them, or how they would rebuild civilization after the fall or some such thing.

My favorite series in this subgenre is definitely Eric Flints (and others) “Ring of Fire” series; and I would guess that in recent years it has been the best selling of the type. My SECOND favorite series of the type however, is collectively called “The Adventures of Conrad Stargard”, by Leo Frankowski; and he is still writing them today.

At any rate, there is no clearer example of an authors engineering (both social and technical) fantasy fulfilment than these books; and the fact that they are written by a former specialty equipment controls engineer (they make the systems which control large complex custom machines, like entire assmebely lines etc…) means that the TECHNICAL detail is great fun (and not really excessive to my mind… but I’m an engineer myself).

Also though, and I think more significantly, the author goes extensively into how technology effects social factors, and vice versa. So along with the technological engineering, he is a social engineer; but at the same time the technology and society of the time are re-engineering the main character.

Recently, I was so strongly put in mind of the Stargard series that I decided to re-read it; and while reading, I came across this passage, while Conrad was going over various political systems in his mind:

I believe that democracy is the best possible system for a nation with an educated, concerned, and reasonable population.

It is not that the people are particularly wise. They aren’t. And the larger the number of people involved in a decision, the poorer the decision is likely to be. To find the IQ of a group, take the average IQ of the people involved and divide by the number-of people in the group.

Anyone who has ever marched troops can verify that a hundred men have the collective intelligence of a centipede. Worse. A centipede doesn’t step on its own feet.

No. Democracy is a good system because it is an extremely stable system.

In many parts of South America and Africa, when an individual becomes truly disgruntled, he gets together with six hundred friends, three hundred rifles, and maybe a hundred bullets and starts a revolution. This practice is socially disruptive and results in lost worktime, destroyed property, and dead bodies.

In America, such an individual does not go off to the hills with a gun. He becomes a political candidate.

Of course, he knows that, to be effective, he must start at the bottom-say, sewer commissioner. So he runs against six other social misfits for that office. If he loses, at least he feels that he has done his best to straighten things out, that if the people don’t appreciate him, they don’t deserve him. Anyway, an election is so exhausting, physically, financially, and emotionally, that he is likely to be over his initial anger. If he wins, well, he can’t really do much harm. There are engineers to make sure that shit flows downhill. And who knows? Maybe he will turn out to be a good sewer commissioner. In any case, society is the winner. Seven potential troublemakers have been defused, only one of them has to be paid, and they just might get some useful work out of that one.

One should note, Frankowski is a bit of a socialist libertarian anarchist mix… Not really an anarcho syndicalist, one might call him a social democrat in the literal sense. Although I’m a bit more idealistic about democracy than that, I can’t say as I disagree with it, and I think it is a good point to make about our current situation in the mddle east.

See, there are idealistic reasons to democratize the mid-east, but there are also very practical reasons. Democracies are generally so busy with their own internal politics, that they dont have the time or energy to attack the rest of the world.

Or maybe I’m jsut reading to much into this…

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

When did they stop?

When I was a kid, and that isn’t exactly a geological age ago; there was a U.S. Flag in every single classrom. Most were on angled jackstaffs flying on the wall next to the P.A. speaker, over the chlakboard, or maybe over the main door.

This didnt warrant notice, any more than desks or chalkboards would.

A bill has just been introduced in the Arizona state house to require that all educational institutions that recieve public funding display the flag in every classroom. Current regulations (as pursuant to U.S. Flag code) only state that a flag must be flown somewhere on campus while school is in session.

My question is, when did they change? When and why did they stop?

The ed-stablishment is complaining that they don’t have the budget, and that they don’t have the personell trained in U.S. Flag code, to do so.

You have got to be kidding me.

Every day at my school, the teacher or the custodian would go around at night and roll the flags up on their jackstaffs. I (or my wife) do it every night to OUR flag. It’s not all that hard. Not only that, but if a flag is permanently mounted, it is acceptable to leave that flag flying at all times, so long as that flag is “properly illuminated” or so long as that flag is indoors.

The flag code is not difficult. Here’s a well illustrated guide, and the annotated code.

Not only that, but I guarantee you they could ask for and recieve enough donations for a proper flag in every classroom in a heartbeat. A decent small indoor flag, U.S. made, only costs about $20. Even a beautiful embroidered presentation flag is only about $100 for a small classroom size model.

Even better to my mind, an ammendment has been added to the bill that would require the concurrent display of the constitution, bill of rights and other ammendments, and declaration of independence as well.

Again, the ed-stablishment says they don’t have the budget; but I ask why isn’t this done alreayd/ Why hasnt this ALWAYS been done? When I was a kid every general ed classrom and history classroom had all of the above prominently displayed.

And still they protest?

No, I believe they are unwilling, because they do not beleive in our nation, our greatness, our exceptional position in this world as the true bastion of freedom and liberty (however it may now be compromised); and they do not wish to be associated with our symbol.

If this legislation passes, and is funded or volunteers fund it; I can assure you the ed-stablishment will find some other excuse to refuse to display our flag. I can guarnatee you that there will be protests by hispanic and native American groups. I guarantee you there will be teachers who refuse to display the flag in their classrooms, or who refuse to teach or assemble in a room where the flag is displayed.

They do this because they are the enemies of our country, and of our children; no more, no less.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

… To be hanged by the neck until dead

“I hereby direct the sherrif of this county to remove you from this courtroom forthwith, and to transport you to the gallows, where before sundown this day you are to be hanged by the neck until dead; your body left to be picked at by the crows, until the Sherrif directs it to be cut down, drug to a shallow grave in unhallowed ground, and burried face down in the dirt.”

— Purported death sentence in the American west, attribution unknown

Penn and Teller have a show called “Bullshit!” in which they take various elements of our society and culture and expose them as… bullshit.

My favorites so far are the gun control, and recycling episodes; but on the NoR forums yesterday someone brought up the death penalty show saying :

“Their Anti death penalty show used the ONLY good anti death penalty argument I have heard.

Do you REALLY trust the government to kill people?” — Yogi

Which is the only major reason I’m not sure about death penalty.

I have no existential crisis of governmental nature with regards to the death penalty. I don’t believe the “Sinking down to their level” or “The government shouldn’t be a murder” arguments. I think they are sheer sophistry in their nature, and used to disguise the true problem that these people have with the death penalty; in that ultimately the death penalty is the responsibility of the people, and if they are of the people then the responsibility for that persons death is theirs. Most of these folks don’t feel responsible enough to take care of a CAT nevermind having a life and death decision for another person.

Obviously I don’t have that problem. When a member of a society egregiously violates that societies rules, he must be cast out of that society by the other members. This can be done temporarily through prison or banishment, or permanently through execution or exile. The death penalty is simply the ultimate sanction in a society that has no permanent exile.

But I still have reservations.

I believe the death penalty is just in nature, but heavily laden with pitfalls in application.

What it comes down to is, do I trust the government to have the authority to kill it’s own citizens for criminal offenses. This is a question on which I am troubled and conflicted.

These are people who can’t get fixing the streets right, and I expect them to get life and death right?

note: I also have no problem with the death penalty for unlawful combatants; which is not a civil criminal matter, but a military one. That is as morally clear and just as can be, presuming the definition of unlawful combatant is clear, and consistent.

To answer that some would say “It’s not the government, it’s the people” to which I say bullshit.

Yes philosophically this is true as I describe above, but again, I have no philosophical objection to the death penalty. The people have the right to protect themsevles from those who violently violate their rights, even by death. My objections are entirely practical, as is the example.

The next answer is usually “Let the jury decide”, but you all know as well as I do that juries are fickle and often stupid things (Moussaui anyone). A jury trial often ends up with the side who the jury “liked” more winning, without regard to truth or justice.

The technique to combat this? Confuse and overwhelm the jury as much as possible so they can’t come to a decision.

Oh my goodness yes, that’s completely just right there, sure it is.

The adversarial nature of our legal system is structured so that within the rules, the best LAWYER wins, not the best case. This is oviously not always true, a very bad case will generally not be won by even the best lawyer, unless he is coming up against the worst opponent. However death penalty cases are most often prosecuted by politically ambitious ADs or AAGs, and they are most often defended by public defenders, and lower scale lawyers doing pro-bono work. This generally comes out as the best against the worst (at least in trial phase, in appeal the big anti death penalty types come to play, and they are generally VERY good lawyers).

Additionally, death penalty cases are often extremely brutal, horrific crimes. By painting the nature of the crimes vividly, it is ofetn possible to bring up mob mentality in the joury, a “someone must pay” attitude, which can make a defendant a target, whether he deserves it or not.

Given this, I have very little confidence in the jury system. In fact I think if a defense attorney thinks his case has any merit at all, and he has a black, multiple offender as his client, he may be better off facing a judge alone; who will be more likely to deal with the technical merits rather than social and emotional factors (at least in theory).

What do I mean by this?

Black men disproportionately commit death penalty offenses. Black men are disproportionately charged in death penalty cases. Black men are disproportionally sentenced to the death penalty when such sentencing is either discretionary to the prosecutor, or decided by the jury (any non-mandatory sentence really).

When I say disproprtionately, I mean that they are charged, convicted, and sentenced more than the percentage of crimes they commit which would be eligible for the death penalty as compared to other racial groups. If they commit 40% of all death penalty offenses (and that is generally the number you see), but they are charged in 60+% of all death penalty cases (and that’s also the number you see), that is disproportionate.

Why is that? Is the system racist? Are the prosecutors?

Not exactly explicitly racist no; but prosecutors know it is far easier to convict a black man of a death penalty offense. This is both for practical reasons: most death penalty offenders are multiple past offenders; most black offenders are poor; most poor offenders have bad lawyers; and more emotional reasons, such as people as a whole are more willing to believe a black multiple offender deserves to die.

Even black people.

In fact an all black jury is more likely to convict a black man of a crime than an all white one is. This has been informally called the “That niggahs just crazy” theory.

The quote is from a black juror in the retrial of a very famous murder case (Rubin “Hurricane” Carter). The black jurors had apparently made up their mind very quickly in the case that the defendant did it, because they thought he was mean, nasty, uppity, crazy, and capable of it; based on their past experience with other men like him in their lives; and their own social normalizations.

Sidebar: They were right in that Carter was a violent and unstable man with a past criminal history; but based on the evidence – and the mishanding thereof – there was no way he should have been convicted, guilty or not. THe same goes for OJ, except in that case the jury made the right decision, if most likely for the wrong reasosn. O.J may or may not have commited the murders, but the police mishandling of the case and the evidence, compounded by a near totally incompetent prosecution, and a judge who was more concerned about looking bad on TV… well there is no way that OJ should have been convicted under those circumstances. Which I think underscores my point about trials not being about truth or justice, but gamesmanship.

White jurors on the other hand are more likely to feel that voting guilty, or voting for the death penalty is a subconscious act of racism or fear on their part, and are in fact more likely to vote guilty, but vote DOWN the death penalty (especially younger to middle aged women if they havent been the victim of a violent crime – if they have they are more likely to vote for the death penalty – and catholics).

Setting aside all that, these are the practical realities on the ground, without regard to their root causes:

1.The government screws up a lot. If they cant get most things right…
2. The best lawyer often wins, not the best case
3. Prosecutors are jsut as good at twisting things as defense attorneys, often better
4. When facing a multiple offender the prosecutor has a natural advantage. The jury KNOWS the defendant is a criminal it’s not a big leap to think him a killer.
5. Black men are more likely to be convicted, justified or not
6. Black men are more likley to be sentenced to the death penalty, justified or not
7. Juries are fickle, emotional, and irrational
8. Poor offenders generally have bad lawyers
9. Bad lawyers generally do poorly with juries
10. If a jury doesnt like the defendant, and doesnt like the lawyer, he’s probably gonna die whether he deserves to or not

Now I’m not saying there arent mitigating factors on the other side, like people who are just naturally reluctant to vote for the death penalty (liberals, catholics, anti-government types etc…), and the high burden of proof that is in theory necessary for a conviction (though in practice not always so if the defendant is poor, a repeat offender, and has a bad lawyer). It’s just that all these factors give me pause.

I DO believe in the death penalty. I believe it is just and right. I believe that it is useful and effective, not as a deterrent but as permanent removal from society. In fact, I believe the death penalty should be expanded to aggravated rape, aggravated kidnapping, child molestation, and other charges.

I just worry greatly about how it is administered, and think we absolutely must use the utmost circumspection in doing so.

It’s funny how catholic teaching stays with you isn’t it. Many people believe that catholics and the church are against the death penalty; but this is not striclty speaking true. The churches position, and my position; is that the death penatly is the ultimate act of members of a society protecting themselves from individuals who would do them harm. Like a just war, there are just executions; but we must use the greatest care in embarking upon either.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

I Always Feel Like, Somebodies Watching Me

Let’s talk about the current NSA surveilance brouhaha. Liberals, conservatives, AND Libertarians are all entirely up in arms about this subject; which for the reasons I’m about to discuss is patently silly.

First things first, I’m an information security consultant and architect, with extensive government, financial, medical, telecommunications, and military security experience. I do some of this stuff for a living. For those of you who are familair with federal contracting, I have several GSA contracts under my belt. In my daily professional life, I deal with the legal and technical issues surrounding this subject quite a lot. I have in fact conducted, and assisted in, trap and trace operations; as well as created solutions for trap and trace access.

Next, this IS NOT WIRETAPPING, nor in fact is it any kind of invasion of privacy (as legally established).

The data the NSA is collecting are called pen-trace records or pen-register records(technically its a “pen register trap and trace device record”, even thugh there is no such thing as a pen register anymore. I usually call it a pen-trace because it’s a more complete abbreviation, and because the operations are generally referred to as “trap and trace” oeprations. In most references it is more often referred to as a Pen Register). These are the records which indicate what calls were initiated from what number, to what number, when, for how long, how the call was routed, and what charge classes apply to each stage of call routing.

These records are legally semi-public information, not private. It is legal to collect these records without a warrant, so long as they are not used to SPECIFICALLY TARGET an individual without a warrant (there is a specific pen register warrant for that purpose), or used beyond basic identifying characteristics. Once a trace of interest is found, a warrant can then be applied for for further surveliance.

It has been legal for the government to do this since the very first telephone telecommunications laws in 1936, and it continues to be reaffirmed as such. The last law regulating this was passed last year, others that I know of in 2001, 1998, 1996, and 1994, ’88, and two HUGE ones in ’84 and ’86. The supreme court has repeatedly reaffirmed the legality and constitutionality of this, because of the third party exemption to private communications if for no other reason (and there have usually been other reasons).

Under the third party exemption, if a third party is allowed to setup or witness what is otherwise a private communication between two parties, the expectation of privacy of the existence of the communication is breached (if it existed at all which in many cases it does not), and the existence and external characteristics of that communication can then be compelled and used as evidence without a warrant.

This is settled legal doctrine, and has been for literally hundreds of years, back to english common law.

For further information, refer to Smith v. Maryland which is controlling in these situations, and which was decided under ’36 ’48 and ’78 statues. A pen register is not a search under these criteria.

There is additional controlling legislation, the electronic communications privacy act of 1984. This established certain privacy protections for electronic surveilance, as well as enforcing access to records and techncial means by the government at the providers cost (as a cost of doing business, any company defined as a pblic telecomunications utility must give the government access to tap and trace).

Under current law and precedent, so long as there is not an individual target, privacy provisions of ECPA ‘84 don’t apply; but the access provisions do. It’s a case of the government having its cake and eating it too.

Further, USAPA ‘01 (the patriot act) CLEARLY defines that global pen registers conducted through electronic means are NOT an unlawful search. Or rather it clearly correlates them to earlier definitions of pen registers which were also held not to be unlawful searches.

If there IS an individual target, then there is a low burden of proof threshold to obtain a pen register, to wit the capture of any information likely to be pertienent to a criminal investigation. Additionally, no warrant is necessary even for specific targeting, if one end of the conversation initiates or terminates outside of the country. Also there are certain standing exemptions (communications from anywhere within the country to certain known individuals or locations – official arms of the chinese government for example).

Also, it has been held that there is no warrant necessary for the disclosure of LUDs (local usage details) by telephone companies to investigative agencies; again because of the third party exemption.

Now there is an additional issue here, as to whether it is legal to capture glocal pen-trace data without a specific target, and then run traffic analysis on it which produces specific targets which were not present before the data collection…

Well so far the courts say yes; and have several times and at several levels; but I’m not sure this is technically correct.

Once the data is collected in a legitimate way, it is generally assumed that any analysis done is legitimate; even if the results of that analysis would be the same as those which would have required a warrant to produce without that analysis.

It may or may not be allowed as evidence depending on the judge, and the court; but the agency doing the analysis wouldn’t be under any sanction for doing so.

This is clearly a case of the law not being properly costructed to handle unforseen technological circumstances. The spirit of the laws (and there are more than just one, in fact more than a few) may be violated here; but in general it has been held that this IS legal. This is why many people choose to use the 10 best proxy servers in 2019, or install a VPN, to help hide their browsing, even if they haven’t broken a single law.

All of these issues have additional implications in a national security context, and I’m not sure if there is a controlling decision or even controlling legislation; in part because some of the decisions that may be controlling are classified. Also some cases that may have produced controling decisions were instead vacated or dismissed by national security exemption.

Basically there are a lot of things that an NS or NCA initiated investigation can do that a criminal investigation can’t and still be legal; in some cases without the authorization of courts.

That is an executive powers question, and one that the courts have been EXTREMELY reluctant to enter into. The constitutional law (as opposed to a straight reading of the constitution – a distinction that I find distasteful but it is very real today) issues here are somewhat convoluted.

Given all this, it should be clear that in fact, telephone and electronic communications have far less LEGAL privacy protection than do face to face conversations. You may not LIKE it, it may feel creepy, but it is legal, and has been basicaly since the phone companies were first set up.

What the NSA is doing WITH this information is called traffic analysis, and it is legal, even on US. Citizens. Traffic analysis doesn’t tell you what is being said, but who is talking to who is a still a valuable source of intelligence.

More importantly, LEGALLY traffic analysis is not surveilance, it is the gathering of open intelligence; and thus does not require any specific justification or authorization.

Now as to whether it should be or not; that’s a much thornier subject. The fact is, we have allowed but the government, and business, to do this since the inception of communications technologies.

By law the telephone networks are only semi-private (as are the airways BTW). There is no dejure expectation of privacy as to the routing of your calls, because that information is both used by third parties for purposes directly related to the call itself (billing and QOS); and by third parties not realated to the call (marketers).

Just to illustrate one case, the phone companies use the info for marketing purposes, and sell it to others for marketing purposes.

People in high income zip codes will be identified, and marketers will look at their magazine and catalogue subscription info, which they either have already or purchased from some other companies. The comapanies then send those catalogues and subscription offers to the people that the high income folks called. That’s just one example.

The same thing happens with shoppers cards, credit cards, magazine subscriptions… hell some libraries sell your data, and all major bookstores (in fact all major retailers) do.

That data may or may not be personally identifiable, depending on exactly what business is selling it to what business.

Hell, the post office sells your magazine and catalogue subscription records to other magazine and catalogue publishers as well; so those publishers can send you more offers. Additionally the post office will use data on who sends you mail, and who you recieve mail from, to conduct investigations into mail fraud, terrorism, and transportation of contraband, obscenity, and child pronography through the mails, WITHOUT ANY WARRANT.

The post office is a semi-government agency, and for some reason no-one makes the connection between pen trace and this behavior; which is legally IDENTICAL; and which has been going on for decades.

So if a commercial entity can sell it to another commercial entity, can’t the government collect this data on its own?

Or should ALL of that be made illegal?

The fact is, people have a false expectation of privacy in far too many venues. The only real privacy lies in that behavior which is that which is conducted exclusively on your private property; or that which is conducted by ALL parties to a contract during which agreement is made by all parties to maintain all desired aspects as private (which lawfully guarantees your expectation of privacy. This at the core of privilige).

This isn’t a recent developement; it’s legally, and often socially been this way… well pretty much forever. You don’t have the legal expectation of privacy you FEEL you do. Perhaps you do have a moral expectation; but the law, morality, and basic rights unfortunately diverged a long time ago.

Again, I’m a Libertarian, these issues get kind of thorny with me. Do I WANT the government to do this? No I don’t; however we have constructed a government that CAN do this, both legally, and technically. I disagree with it, I’d like the laws changed; I’d even like to see a constitutional guarantee to certain privacy beyond that which I outline here; but it simply doesnt exist now (nor likely ever will).

As to a so called right to privacy; no there is no right to privacy if you mean that all others must repsect YOUR privacy and not use the means they have available to abrogate it. That so called right simply does not exist.

A right is something that can only be abrogated by force, or willful consent. Privacy of your telephone calling records need not be forced, nor does it need your consent to be abrogated; because it is already shared with a third party; the telephone company.

That said, we have the right to HIDE anything we want (presuming we control that thing legitimately), from whomever we want, for whatever reason, using whatever means we choose. It is others responsibiltiy to find it if they want to. This includes criminal evidence; and it includes lying to investigators and law enforcement (though not in court providing one swears the oath).

Additionally and related to that, we have the right to not be COMPELLED to share information we do not wish to share; assuming we hold that information alone, or in concert with other parties who also agree to keep that information private. However if there is a party to the information who does not agree, than if we continue to share information with that party, we no longer have any legitimate expectation of privacy.

Privacy is not an inherent right, it is a social construct. It is a useful, and important construct; but the only privacy we have an absolute right to is the privacy of private property; and whatever occurs entirely therein.

The problem is that peoples understanding and expection of privacy doesn’t keep pace with either their understanding and expectations of technology; or their general acceptance of technologies.

The only reason this is coming to light NOW (in the general sense – in the specific sense its so the press can use it against Bush), is because now the technical means exist for governments, and businesses, to collect and analyze this data on a global scale. That makes EVERYONE feel like they are being watched. People were fine with it when they could only track and analyze a few data streams at a time, but now they can track and analyze everyone, they feel naked, violated.

You may feel in your gut that your rights are being violated, but you never had this LEGAL right you feel you had in the first place. You had a de-facto illusion of privacy, simply because people weren’t able to do this yet.

Now they are, and your illusion of privacy no longer exists.

UPDATE: Some commenters questioned my accuracy on the law, so I included more detail. I also inserted clarification of my personal moral position on the issue. Oh and if you want privacy, here are Six-ish words: Encrypted IP Telephony, Pre-paid Mobile Phone. You can find out more by visiting an ip phone systems melbourne company similar to Business ICT or a company more local to you.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

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