Category Archives: Privacy

New Technologies For The Surveillance State

Apparently, the FBI is now able to use a cell phone microphone as an eavesdropping device:

The FBI appears to have begun using a novel form of electronic surveillance in criminal investigations: remotely activating a mobile phone’s microphone and using it to eavesdrop on nearby conversations.

The technique is called a “roving bug,” and was approved by top U.S. Department of Justice officials for use against members of a New York organized crime family who were wary of conventional surveillance techniques such as tailing a suspect or wiretapping him.

Nextel cell phones owned by two alleged mobsters, John Ardito and his attorney Peter Peluso, were used by the FBI to listen in on nearby conversations. The FBI views Ardito as one of the most powerful men in the Genovese family, a major part of the national Mafia.

The surveillance technique came to light in an opinion published this week by U.S. District Judge Lewis Kaplan. He ruled that the “roving bug” was legal because federal wiretapping law is broad enough to permit eavesdropping even of conversations that take place near a suspect’s cell phone.

And the method apparently works even if the cell phone is turned off:

Kaplan’s opinion said that the eavesdropping technique “functioned whether the phone was powered on or off.” Some handsets can’t be fully powered down without removing the battery; for instance, some Nokia models will wake up when turned off if an alarm is set.

As the article explains, though, this isn’t the first time that we’ve learned that the FBI can remotely activate technology and listen in on conversations. In 2003, they used a similar method to activate the OnStar microphone in someone’s vehicle.

It’s enough to make you paranoid.

Oklahoma Restricts One Less Freedom

Tattooing in Oklahoma becomes legal Wednesday

Some say it’s an art. Others say it’s a sin. But nobody can say tattooing is illegal in Oklahoma after Wednesday, when the state becomes the very last to permit it.

The moral tangle is over. The win goes to lawmakers who argued that tattooing is inevitable, so it may as well be regulated for safety.

The win is also claimed by the state’s tattoo artists, who can now ink most anyone 18 and older without fear of handcuffs and fines.

The law that passed after much foot-dragging has earned praise and criticism, but either way, it has an effect.

It looks like today, one state becomes the last one to finally realize that people are capable of making their own decisions about their body. I do think that a lot of people are surprised by this, though. Not that they’re surprised that Oklahoma is changing the law, but surprised that Oklahoma had the law until 2006 in the first place.

But this isn’t an isolated case. I’ve said it before and I’ll say it again. One of the most egregious flaws of government is their tendency to restrict freedom and enforce the prejudices of the majority by law. You see it here in the south, where you can’t buy alcohol on Sunday because it offends too many religious people. You see it happening all over the country now, as cities and states try to ban smoking in all public places because it’s now widely regarded to be a faux pas.

I’d like to say that this change in the law is Oklahoma’s realization that outlawing behavior that they simply find unappealing, which does not infringe on anyone’s rights, is bad policy. But it’s not. This is them retreating from one restriction of freedom that no longer has a lot of public support. I’m sure they won’t be shy about keeping those restrictions that exist, or enacting new restrictions, as long as the majority supports it. After all, that’s what government is for, right?

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The Right To Privacy

One of the most contentious bits of Constitutional jurisprudence in history has been the “Right to Privacy”. Some say it’s not there at all, as the word “privacy” never even appears in the document. Some say it flows out of penumbras, formed by emanations. I wish I had a clue what the heck that means. The real answer is much, much simpler, but if followed, throws the whole system on its ear. That answer flows straight out of the idea of Natural Rights, and is expressed by a portion of the Constitution that is roundly ignored, the Ninth Amendment:

Amendment IX – Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Of course, without an enumeration, it is difficult to understand exactly what sort of rights are protected by the Ninth Amendment. Is a “Right to Privacy” hiding in there? How about a “Right to Polygamy”? Perhaps a “Right to Animal Sacrafice”? Who knows what we might find in there? Could this possibly have been what the Founders intended?

I think it is. The Ninth Amendment, coupled with the Tenth, the Constitutional framework of listing enumerated governmental powers, and later the inclusion of the Fourteenth Amendment, is meant to convey a very specific idea. Where the Constitution has given the government the power to act, it may act, within certain limits. Where the government does not have the power to act, the people are free to exercise their liberty without intrusion.

Perhaps it would be best to start at the beginning. The Ninth Amendment was written as a part of the Bill of Rights in general. At the time of the Founding, many suggested that we did not need a bill of rights, in that the government’s powers were limited. But James Madison, father of the Constitution, did not agree:

It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments.

Would it be right for our government, in response to the enumerated power of punishing counterfeiting of currency, to ban freedom of the press? It would not be necessary, but if Congress is both the writer of the laws and the judge of necessity, the protection against Congressional overreach is not there. The Bill of Rights is intended as a second line of defense against the evisceration of the necessary and proper clause. But there is a problem whenever you enumerate a specific bill of rights, which Madison clearly understood:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

The clause he mentions, which clearly was the precursor to the Ninth.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

It is clear that the Constitution was written with several lines of defense against giving the government wide powers. It is also clear that the constitution was written to further restrict the latitude of government’s action even when performing their enumerated powers. The Ninth Amendment was intended as one of these second lines of defense to protect individual liberties (natural rights) not expressed in the previous amendments.

Every one of those lines of defense have been breached, and the government has stopped considering most limits on its power. The Supreme Court has been complicit, and instead of acting to guard our rights, has granted the government the benefit of the doubt, or a presumption of constitutionality, to its actions. The presumption of constitutionality means that instead of requiring the government to prove that restricting our liberties is required to enforce a law is “necessary and proper” to the operation of an enumerated power, it is the citizen’s responsibility to show that the legislation encroaches upon an enumerated right in the Bill of Rights, or encroaching on one of those penumbras, formed by emanations, that the Supreme Court has deemed a “fundamental” right. The Ninth Amendment is ignored.

The Supreme Court has become the arbiter to pick and choose which rights are fundamental, and considers only those rights to be safe from government’s power. Even so, they have eviscerated some enumerated rights, by not striking down certain portions of McCain-Feingold, by holding the 2nd Amendment to be “non-incorporated” by the 14th, and in their decision to ignore private property rights against the abuse of eminent domain in Kelo. Kelo is a key example of the presumption of constitutionality, in that the Court simply take the local government’s word for the fact that the takings met the standard of “public use”.

The Right to Privacy is something that the current court has considered as an exception to the presumption of constitutionality. Due to current jurisprudence, however, to affirm the Ninth Amendment, and the reasoning behind its inception, would be affirming a much wider level of liberty and a much more narrow grant of government power than our current government recognizes. Thus, they must rest on the idea of “penumbras, formed by emanations”, resting on the first, third, fourth, fifth, ninth, and fourteenth amendments. They cannot claim that the government doesn’t have the power to make an infringement of liberty in this sense, they must craft a “new” fundamental right to protect a liberty they support. Their desire to maintain the presumption of constitutionality while still enforcing their desired social goals puts them in a very precarious position, and the house of cards that is our Constitutional jurisprudence gets one story taller.

There is another way, though. I was recently reading— a major impetus for this post, actually— Randy Barnett’s book, Restoring the Lost Constitution: The Presumption of Liberty. In it, he argues that through the evisceration of the necessary and proper clause, the privileges and immunities clause, the interstate commerce clause, and then the Ninth Amendment, we have strayed far from the original intent of the Constitution, and have found ourselves with a toothless document filled with holes. The suggest to reverse course would be to return to the days when we presume that the government cannot infringe upon liberty UNLESS they demonstrate that to do so is both necessary (not “convenient” but necessary) and proper (in the service of an enumerated power). Instead of a presumption of constitutionality, we should return to a Presumption of Liberty.

The Founding Fathers certainly believed in a Right to Privacy, insofar as they didn’t believe the government had a legitimate purpose to be doing anything which might infringe upon it. In our current Constitutional jurisprudence, the Right to Privacy is an exception to unlimited government power. If we returned to a Presumption of Liberty, the Right to Privacy, along with a host of other rights and liberties, wouldn’t be an exception at all, it would be would be the standard.

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Libertarianism: The Problem of Children

Over a year ago, when I was still a new blogger, I posted this entry at The Unrepentant Individual. And I still don’t have an answer for it. Can anyone help me out?


My adherence to libertarianism, as much as an “Unrepentant Individual” adheres to any set political party or philosophy, is based upon my belief that libertarianism is a fully consistent, logical, and moral form of government. The reason for this is that I don’t accept that other people should be able to make choices for me, a rational adult, and thus I cannot see that I should find myself so egotistical that I should be making choices for them, so long as we do not violate each other’s rights and liberty.

However, in any discussion of libertarianism that I have come across, one issue is typically not handled very well: the issue of children. Libertarianism presupposes that the actors in society are rationally self-interested individuals, and that these people should be given as much leeway to act as possible, so long as they are not infringing on others. Our discussion of rules, morality, governance, all assumes that we treat humans like adults.

But children aren’t adults. What, then, do we do with them? What rules, what guidelines, should we use to protect their rights? What guidelines should be used to protect them from themselves, as they have not gained the maturity to act rationally? And what should be done to protect them from neglectful parents, who do not take the steps necessary to ensure that they grow up to become rational adults? Socialists, fascists, communists, and even nanny-state Republicans don’t have this problem, because they treat everyone like children, under the mismanaged care and semi-watchful eye of an incompetent government. Since they never really expect or desire us to exercise independent, rational thought, they don’t need to be worried about leaving us unprepared to do so. But for us libertarians, we cannot abdicate this responsibility, or our society will cease to be the moral form of government that we believe.
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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.

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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