Category Archives: Media

An Unhappy Thanksgiving

As most of the country chows down on turkey, ham, lamb and sits down to watch football or various Thanksgiving parades, I feel sad and I’m not in the celebratory mood. I find myself on this day that celebrates capitalism and individual liberty reflecting about how far our country has gone from the ideals our Founding Fathers laid out for us.

For example, I think Thomas Jefferson, Patrick Henry, and James Madison are rolling in their graves about the coming higher wage controls that will be imposed by the new majority in Congress.

I don’t think they would be too pleased either with the outrageous national debt and the unfair and burdensome tax code that we have now.

I don’t think they would be pleased that our universities have become centers for the suppression of the freedom of free speech and freedom of thought.

They would not be pleased at the corruption that infests Congress.

They would be irate about a 92 year old woman named Kathryn Johnson who was killed by plain clothes policemen who broke down her door. The handicapped ramp should have been a clue this probably wasn’t a crackhouse and there were innocent people inside. But no, instead the three pigs decided they wanted to be heroes and they decided to conduct a no knock raid on the house. The woman, who had a legally licensed handgun for protection because she lived in a high-crime neighborhood, thought that these three men in plain clothes were impersonating police officers and trying to break in. She reacted as many other honest and law abiding people would in this situation, she defended herself and her property. She shot all three pigs, unfortunately, they’ll live and they’ll probably be hailed as heroes. They cops returned fire, killing her.

This Thanksgiving while most Americans stuff themselves, the Johnson family will be making funeral arrangements to bury the latest victim of our War on (some) Drugs and the militarized police forces. The Johnsons have lost an aunt, a grandmother, and I’m sure a woman that was beloved by all who knew her. A woman that should be in the prime of her life, instead lost her life in one of the most brutal ways possible. Justice for Kathryn would be the three policemen facing at the very least a hearing and possibly criminal charges for their actions; but it looks like we’ll have to settle for getting rid of no-knock raids.

This Thanksgiving, we need to rededicate ourselves to fighting, through political activism and reporting on their misdeeds, these wannabe tyrants whether they rule from Washington D.C. or own the local level and fight to restore our lost liberties. We need to pressure the media to give this story the proper attention it deserves. The media is reporting that police politely knocked on Kathryn Johnson’s door and just started firing and the cops were defending theirselves. In fact, the supposedly conservative Fox News Channel had a panel discussion on today’s Live Desk where all five panelists, including the supposedly objective reporter Julie Banderas, called for a ban on keeping privately owned firearms inside homes and sited this shooting as a reason.

So have a Happy Thanksgiving and remember to be on guard for liberty, for its enemies are numerous and powerful.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.

The Daily Roundup

Keith who?

Democrats are on their latest election platform for 2006. They’ll come with yet another one next week sometime. I don’t know what’s worse, the GOP’s “American Values Agenda”, which doesn’t even deal with serious issues, or the Democrats’s lack of an agenda.

World trade talks collapse. (more on this later)

Space tourists can now walk in space. The universe will be colonized by the brave and adventurous, not government bureaucrats.

Venezuelan Leader Hugo Chavez continues his support for democracy and liberty abroad.

That’s all folks, until tomorrow.

I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.

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

Bias, Moral Relativism, and Hipocrisy

A commentor at The Other Side of Kim Forums calling himself Raucous recently posted this tolerably well written, but I think ultimately blind post, positing the question what do we want out of our reporters with regard to bias, and support of the American (or any other) war effort.

“As an aspiring journalist I note with some dismay the frustration, animosity and anger with which the media is seen by many on this board and others. Which leads me to the question, what do the people want from their press?

Much of the frustration, it seems, stems from reporting of controversial issues. For example, should the enemy in Iraq be referred to as insurgents or terrorists? This, I supposit , is not as easy as people may think. There are, certainly, clear cut examples – car bombings in public markets are easily labeled as terrorist acts. But, how should we refer to the man who takes up arms against what he perceives as an illegitimate invader? If he is shooting at U.S. soldiers engaged in military operation on his homeland is he a terrorist, a militant, an insurgent, a fundamentalist?

Our own empathy with the men and women of our armed forces will steer us to the conclusion that anyone who stands against them must do so for nefarious reasons, but we must look beyond emotion. We can note that words such as terrorist have been used throughout history to illicit ill feelings toward a group. The Czech and Ukrainian partisans of World War II, even the Minutemen of the American Revolution were cast in a similar light. The projection is effective, because we KNOW what a terrorist is – and castigating someone in the light of “terrorist” brings us, for a moment, to the images of September 11th . It is easy to hate someone when we associate them with men and women jumping to their death to avoid flames, it is easy to despise them we recall the grieving widows of the FDNY.

But do we want the media to assume a role that validates our emotions, and if so which ones?

As journalists we are, by necessity, careful as to what we write. Printing a quote incorrectly or forgetting to put “alleged” in front of murderer means that we can have our asses hauled write to court. It could be an honest mistake, that doesn’t mean it won’t cost us lots and lots of money. This care spills over into choosing between such terms as “migrant worker” and “illegal alien.” I shall admit that print journalists worry too much about political correctness and semantics, but as I’ve said one word can make the difference in our increasingly litigative society.

So, from what I gather “insurgent” and “militant” are not a strong enough words because they somehow lend validity to the act and the personcommitting it. “Terrorist,” however, labels both the person and the event in a negative light, and should be the standard.

Imagine then, this imaginary headline. “Terrorists open fire on U.S. military killing four.” This, we would say, is accurate regardless of who the “terrorist” are or what their motives might be. Our affinity for our fellow Americans rallies us to their side.

Imagine now, this imaginary headline from a different perspective. “U.S. terrorists open fire on Iraqi fighters killing four.” This, we would say, IS TOTAL @#$%ING HORSE#(&^ WHERE DO THOSE &!@#SUCKERS GET OFF CALLING US TERRORIST?!

The editorialising is exactly the same – simply from a different perspective. If we are to say that one is desirable then we should also accept the other as fair. Do we?

To reach further back in time to Oklahoma City, and even Ruby Ridge, we may recall when these mantras worked to the distinct disadvantage of members of the gun culture. Suddenly, everyone who owned a gun became a McVeigh – we all became “militants,” “extremists,” “fanatics,” “gun-nuts.” Randy Weaver was a “racist,” and a “white supremacist .” Poor reporting and more poor reporting. But reporting in the same vein as what many seem to want – biased towards their own perspective.”

Some good points there, but I think some basic misunderstandings.. perhaps even a moral blindness that I wish to address.

First, my thought on bias is simple. The U.S. press should be as biased as it wants to be, and stop pretending to be objective or neutral.

The fact is people are biased. While it is possible to be objective about some things, once you have formed an opinion that you are confident and justified in, you WILL NOT BE unbiased about things which either strongly support, or strongly contracdict your opinion.

You may force yourself to appear unbiased, but even then, the bias will still be there. It will color what you think, and what you write, no matter how much you think it does not. Subtle elements such as word order, punctuation, basic elements of tone and style will be different when you are writing about things you have strong opinions on… at least if you are any good as a writer.

Unbiased reporting is either unifnormed, or passionless. It is inhuman in nature… Human nature is passionate, and it is baised.

In times past here, and in most other countries today, reporters dont even pretend to be unbiased. They acknowledged they are biased gleefully and dove into their bias with gusto. So long as they do not lie, alter, or distort FACTS, and seperate FACT from their own OPINIONS, then I think that is just fine.

IF THEY ADMIT IT.

The U.S. press is in a situation today where not only are they radically biased, but they continue to lie about, and deny that bias exists; or worse, pretend that the bias is exactly opposite of what we all kow to be true. Read Bernie Goldbergs “Bias” and “Arrogance” and you’ll see what I’m talking about.

I am an informed, passionate reader; and I want a passionate, informed writer writing my news, and just as important, I want him to admit what his opinions are about what he is writing, rather than pretend they aren’t there, when so clearly they are. Then I can judge if he is being reliable or not, just as I do with any man talking with me on the street.

Now, I wanted to address the main illustrative thrust in the piece, and that is the editorial judgement of writers as described in this sentence discussing calling Iraqi bombers terrorists, vs. calling U.S. soldiers terrorists:

But do we want the media to assume a role that validates our emotions, and if so which ones?”

“The editorialising is exactly the same – simply from a different perspective. If we are to say that one is desirable then we should also accept the other as fair. Do we?”

Only if one assumes moral equivalency, and moral relevancy are valid philosophies.

It is my (and many Americans) explicit rejection of these philosophies that is the genesis of our dislike of such politically correct usages as calling terrorists anything but that.

A terrorist is one who uses forcible terror without legitimate authority for the use of force, and without hope of military or political victory through legitimate means; to effect a social or political change that they desire.

This is the very definition of the so called “insurgency” in Iraq. It does not, never has, and never will apply to conventional military forces.

Though there are certain circumstances when special operations use terrorist tactics, it would be unfair to call those executing them terrorists. They are using those tactics because they are appropriate to the situation, and as part of a larger overall plan and goal WHICH THEY ARE CAPABLE OF ACHIEVING, through legitimate means.

If however it would not be possible for a group to do so, or that group was not acting under the color of legitimate authority (either in just rebellion, or as agents of a legitimate government) then it is plainly fair to call them terrorists.

The Israeli spcial operations forces, and intelligence services, are well known for using terrorist tactics against terrorist groups. This doesn’t make them terrorists. There is a very clear definitional difference, in that they are operating under the color of legitimate authority, and in concert with the principles by which that authority is derived.

Now as to whether one is using terrorist tactics, there can be no question. As to whether one using force outside of the color of recognized legitimate authority is a terrorist, there is only one moral question, “what is a just rebellion”.

It may be morally acceptable to promulgate terrorist acts in support of a just rebellion (or other just war), but what is a just rebellion?

At this point it is necessary to make a moral judgement. Morally, a rebellion is just if it is against a government which does not recognize or protect the basic rights of the sovreign man; or if it is against no government at all but against those who would abrogate those basic rights; and if that rebellion is dedicated to instituting a government which does. There is no other legitimate moral justification for either a government to base itself on, or for a rebellion to base it’s opposition.

Of course moral relativisms core principle is that all moral judgements are invalid; thus a writer who cannot make a moral judgement cannot call someone a terrorist, and someone else a freedom fighter.

I make the moral judgement that the so called insurgents in Iraq are not in legitimate rebellion, and therefore they are terrorists. They are not insurgents, freedom fighters, militas, minutemen, or anything but terrorists. As terrorists they are unlawful enemy combatants, and subject to summary execution upon capture, and to unlimited prosecution of conventional force to effect that capture.

If you cannot make a moral judgement, then you also cannot condemn me for making a moral judgement against a terrorist, or against you for that matter. Of course it seems that moral relativsts principles do not extend that far. They will remain free of judgement until they come up against someone who disagrees with them, and then their judgement is applied with great force.

This is the grossest form of hipocrisy; which coincidentally is the most frequent accusation of the moral relativist against those who do not share their views.

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 thank the FEC for FREEING us!

FEC Frees All Web Political Communication Except Paid Ads

Eric chastised me about the title to this post, where I improperly used language and claimed the government had rights. As such, I need to point out this gaffe before even addressing the meat of this article. The FEC did not give us Freedom. They only lifted their (immediate) threat of immorally infringing upon our freedom.

Yesterday’s unanimous Federal Election Commission (FEC) ruling on Internet political communication places paid online advertising in the category of “public communication,” subject to campaign finance laws. Bloggers, Web pundits, and all other Internet communicators, however, get carte blanche.

Prominent bloggers are hailing the FEC decision, which affords them the same exemption from campaign finance restrictions that is afforded offline media like TV, radio and newspapers. Indeed, even when individuals who run Web sites accept payment from a federal candidate, political party committee or other political committee, no disclaimer is required. Also, according to the FEC document, public communication doesn’t include republished campaign material that is placed on an individual’s Web site, blog or e-mail, so it’s not considered “coordinated communication.”

So, they’ve accepted as legitimate the idea that they decide who gets to speak and who doesn’t, and how. While I am somehow now a member of a privileged class (“the media”), I still do not accept the government’s power to decide who can and cannot speak. If they can decide today that bloggers are part of the media, they can just as easily decide the opposite in the future.

I refuse to acknowledge their power to infringe upon my right to speak. That is my position, regardless of which way the FEC decides. And should they have decided otherwise, I would have been forced to disobey.

The game is not over. I do not believe it is right to leave these decisions in the hands of unelected bureaucrats at the FEC. H.R. 1606 is still active. After the FEC ruling, it could still be voted upon, or it might simply go away. It is time to make sure it does not go away. I am sending this letter (by fax) to my Congressman, Tom Price. I suggest all of you do the same, as we need to send a message that this is illegitimate in the first place.

Dear Rep. Price,

As you may be aware, the FEC recently ruled that blogs and other online communication, with the exception of paid political advertisements, will not be regulated as a part of the Bipartisan Campain Reform Act (BCRA). At the same time, Rep. Hensarling had introduced the Online Freedom of Speech Act (HR 1606) to ensure that online communication would be wholly exempted from the BCRA.

Understandably, there was a lot of political pressure to pass HR 1606 before the FEC released its ruling on Monday. As a result of that ruling, it is likely that much of this pressure will subside. Regardless, it is my belief that HR 1606 should still be voted upon in the House and passed. The FEC has determined that it is the arbiter of what should and should not be regulated as political speech under the BCRA. While they may have decided today to bow to politics and not regulate online communication, there is no guarantee that they won’t change their minds next month or next year, when they are no longer in the spotlight of public opinion.

The way to ensure that the FEC does not change its ruling is for the Congress to make sure that they don’t have the authority. It is not the place of unelected federal bureaucrats to determine whether or not individuals have the right to freedom of speech. I ask that you do what you can to ensure that HR 1606 does see a vote in the near future, and that you vote in favor of the measure.

Thank you for your support.

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