There are historical precedents for US federal law enforcement being actively used, in secret, to suppress and dismantle political organizations it doesn't like. Such as the 1919 Red Scare, or COINTELPRO. Those instances are many decades in the past- roughly 100 and 50 years ago, respectively. But it is hardly unrealistic for us to worry about the possibility that's it's happening again.
TheHammer wrote:Its not that I "dont think like a physicist" its that I expect "what-if" scenarios to be semi-plausible if I'm supposed to respond to them.
Why?
The
whole point of a hypothetical scenario is to explore what the rules are, by creating a test case. In this case, my concern is that the FBI is claiming that a warrant gives them the right to search an arbitrarily large pile of stuff to find what they're looking for, and that they can be trusted to do this in an honest fashion.
2) If they would be entitled to do that, do we need any unusual safeguards to ensure that this enormous search is not abused, by the FBI or by third parties?
As noted, they aren't entitled. The FBI sought a warrant for a search with a specific scope and were given that warrant. By technical neccessity, they would be given physical access to everyone's property, but would be forbidden from accessing anything outside of the scope of their warrant. Doing so would be a crime.
Are any special safeguards required to ensure that this crime is not
committed? The temptation to use this massively powerful access tool is high, because the potential to use it to identify other criminals is large, if nothing else.
This kind of surveillance power borders on the legal equivalent of weapons of mass destruction- having all this knowledge would give you
so many leads, potentially. Even if you don't want to become a totalitarian surveillance state, it's still tempting.
When you hand someone a weapon that powerful, you take precautions to ensure that it is not used carelessly, that no one person can abuse it easily, and so on.
What are the precautions here? Is it enough to say "no, the FBI wouldn't do that, because that would be a crime!"
They've told the court what they have been doing, and what they intend to do. That's why they were given a warrant. It would be as safe as any other search law enforcement conducts. If you're concerned that your law enforcement agency is breaking the law itself, then why stop your concerns with forcing lavabits to legally turn over the key? They could just as easily "beat it out of him", or send in agents to steal it.
If a guy gets beaten up, or a physical place is burgled and stolen, there's physical evidence afterwards. There is a place to
begin investigating the possibility of the FBI committing a crime- just as there is if drugs disappear from an evidence locker, or in any other form of law enforcement misconduct.
With a big pile of data, the only way to know what's going on is to actively monitor the data transfer itself, and ensure that the device is being used as it's supposed to, and that no unauthorized decryption or copying is going on.
Law enforcement agencies have internal affairs divisions specifically to protect against them committing crimes themselves, but I suspect anyone who doesn't trust the FBI to begin with isn't going to trust their internal affairds.
Is internal affairs willing to audit this project directly and publish results related to it? Or is the whole thing too secret for us to know it's being investigated in the first place?
I don't view government agencies as unchanging monoliths. Lessons are learned, personnel change. Are we talking about the track record from the Hoover days of the FBI, or are we talking more recently? Are we lumping the FBI in with the NSA?
I see pissing and moaning all the time about "warrantless NSA searches", and yet when the FBI goes to court, gets a judge to sign off on the warrant - a process that allows the owner of the buisness his day in court to make counter arguments, what more do you expect? Do you have a recent example (in the last 10 years) of the FBI abusing a search warrant? If not, then why are you so quick to presume they will?
If this were a question of the original "Lavabit decrypts and hands over one person's metadata" scheme, I wouldn't really have a problem. But the much grander "give us access to peer at the traffic of every Lavabit user,
without being allowed to contact your attorney or tell your clients this is going on" scheme the FBI escalated to strikes me as troublesome... precisely because it is so broad.
While I can easily imagine the necessity of such a scheme, I'm opposed to treating it like a 'normal' execution of a search warrant. This is the equivalent of giving the FBI the keys to open every safe deposit box in a bank; it's not wrong in and of itself, but I'd really want to make sure there were processes in place to monitor the honesty of the search
in real time, not just after the fact when internal affairs gets around to checking up on it.
As far as I can tell, in Hammermerica, I have a right to privacy, due process, and so forth... but only until it becomes inconvenient for the state to allow me those rights. Which means I don't really have any rights at all.
Actually, in Hammermerica, aka the real world, you absolutely have your right to privacy and due process. But when that due process has been done, you've had your day in court and
lost, then you don't have the right to throw up your hands and scream "GOVERNMENT OPPRESSION!".
Except when the FBI is telling me not to communicate with my lawyer, in which case I don't have a right to scream at all, and the predictable botch I make of handling a legally touchy situation on my own is entirely
my fault.
[Hint: if you don't let people talk to their lawyers, don't be surprised if they react to law enforcement in dramatic and absurd ways that belong in Hollywood instead of the real world. There's a reason being a lawyer is a highly trained profession for people of above-average intelligence and self control.]
Who would this hypothetical neutral entity be? Would you like some sort of technical representative from the courts? That would be reasonable, but still part of the "government" so to speak.
I'd take if if the results could be published in an open-ish fashion (i.e. available on request should the ACLU wind up taking a case on this guy's behalf).
Arguably, my biggest
single complaint with government overreach is that so much of it occurs in secret that we can't actually make any confident statements about whether it happens or not. We can't know the decision process for deciding to blow up an American citizen abroad with a drone strike*. We can't know the conditions under which the NSA monitors our personal communications. And in a case like this we may not even know what pressure the FBI is putting on private actors to reveal information about us to the state, because
they're under a gag order.
This is the ideal climate for breeding distrust of the government. The problem is not just that the government is doing things that
might be questionable. It's not that we assume in advance that all federal security organs are full of bad people. It's that they won't tell us what's going on, and often work very long and hard to punish anyone who
does tell us what's going on.
How can you trust someone who won't tell you why they kill and spy on people, and in fact responds to anyone who does tell you that by trying to kill or spy on
them?
This is not a reasonable way for a democratic government to behave, unless it
wants to rule by nebulous fear of state surveillance.
_______________________
*(something we've discussed in the past that I mention purely as an example; if you wish to say anything about the subject right now I won't contest it because I don't care about arguing it with you).
