Quis custodiet ipsos custodes?

One cannot use spies without sagacity and knowledge,
one cannot use spies without humanity and justice

–Sun Tzu

who is watching you?

Polvo gallery will be hosting an art show in Chicago, from August 3rd to September 1st 2007, called echelon: who is watching you? I suppose we earn the honor of hosting this little historical survey of US surveillance since “Chicagoans may soon be the most watched urbanites in the world.” PoliceOne has an online copy of a 2004 AP article Chicago Moving to ‘Smart’ Surveillance Cameras that is worth a look, in case this is news to you.

But we are the second city after all, and NYC will soon be enjoying a “London-style surveillance veil,” a phrase that’ll send me to the bar for some scotch any day of the week. This package includes Automatic Number Plate Recognition (ANPR) technology which, since at least 2004, has been helping London tighten the weave of its dragnet & capture a carnival of suspects more effectively. (Check out the excellent Spy Blog from the UK which is Watching Them Watching Us; there are numerous discussions of ANPR to be found)

I definitely hope to attend opening night of the echelon show, in part to see try and understand what this surveillance means to me as a relatively new Chicagoan. I have been known to peek in on official industry presentations about these kinds of technologies; likewise the echelon show will be a great way to take a read of current discussion in Chicago about escalating digital data-capture technology. Of course the Bush administration is more than happy to support pervasive ground-level invasions of personal citizens’ privacy while drawing lead blinds on its own activities. So far the courts have kept some of these inclinations in check (TOO SLOWLY, in case they’re listening in) but it’s only gotten worse since the Geneva convention-denying Attorney General Alberto Gonzalez was confirmed with a notable lack of enthusiasm.

On July 6th 2007, and from an unexpected corner, San Francisco’s Ninth Court of Appeals ruled in US vs Forrester that “Feds can read e-mail, IP addresses without warrant[s].” The crux of their argument is that monitoring email addresses and IP addresses constitutes no greater invasion than that of identifying the information on the outside of a sealed letter, or recording a roll of phone numbers, which are both protected levels of surveillance. Numerous commentators feel that the volume of information available to an agency looking through an electronic list of email chains as well as the volume of information to be gleaned from web sites is far greater than can be traditionally gathered, and constitutes something worthy of 4th amendment protections.

The Volokh Conspiracy in particular has a substantial comment roll about both sides of the issue; JohnMc brings summarizes an interesting point for consideration in our current Web2.0 environment:

Orin, I am going to side with TechieLaw not on the legal merits but the technical issues. The crux of my argument is that as a general basis, with internet your private data is hosted off your premieres. From a business perspective, were the general public not to be afforded the same 4th amendment protections as in their residence then you might as well forget about Web 2.0 and close Sun Corp. down (“The network IS the computer”).

The visionaries see a not too distant future where you keep your data on a contracted provider who has the resources to guarantee always available access and multiple redundant backup. Think Google. However If the only way I can keep my papers private is to keep them on my own server in my own home then that is what will happen. At that point we are back to a technical future equivalent to 1960. It just all runs faster.

The 4th needs to be amended to expand ‘reasonable searches and seizures’ to your papers regardless of location or format.

Couple this with the FBI’s use of exigent letters to illegally convince telephone companies to immediately surrender documents on their existing clients, usually by claiming that appropriate necessary documents were filed, and suddenly the reality seems explosive. With such a large number of free data hosting sites (i.e. ewedrive, JustUpIt, etc.) which will maintain uploaded data for you in a personal account, as well as traditional paid hosting services, the problems seem endless.

Until clear and non-politicized language is developed, within an internationally accepted framework, to erect legally defendable digital borders for private citizenry there will be no lasting security. Lamenting concessions made by the big players can seem academic, especially when we undeniably enjoy so many other freedoms protections in the US, but my feeling is that until a service such as Yahoo can be held accountable, then we are all as vulnerable as Shi Tao.

Als sie mich holten, gab es keinen mehr, der protestieren konnte
–Pastor Martin Niemöller

(Then they came for me and there was no one left to speak up for me.)


Just minutes after launching this post, which I finished a draft of yesterday afternoon, I came across this apropos ruling in today’s NYT article Court Tells U.S. to Reveal Data on Detainees at Guantánamo by William Glaberson:


A federal appeals court ordered the government yesterday to turn over virtually all its information on Guantánamo detainees who are challenging their detention, rejecting an effort by the Justice Department to limit disclosures and setting the stage for new legal battles over the government’s reasons for holding the men indefinitely.

The ruling, which came in one of the main court cases dealing with the fate of the detainees, effectively set the ground rules for scores of cases by detainees challenging the actions of Pentagon tribunals that decide whether terror suspects should be held as enemy combatants.

It was the latest of a series of stinging legal challenges to the administration’s detention policies that have amplified pressure on the Bush administration to find some alternative to Guantánamo, where about 360 men are now being held.

A three-judge panel of the federal appeals court in Washington unanimously rejected a government effort to limit the information it must turn over to the court and lawyers for the detainees.


It didn’t end there, though:

The ruling also included significant victories for the government, including a decision allowing the Pentagon to limit the subjects that the lawyers can discuss with detainees and authorizing special Pentagon teams to read the lawyers’ mail and remove unauthorized comments.

Why are these rulings often such mixed blessings? This is how New York Lawyer Wells Dixon, from the Center for Constitutional Rights, sums up the essential stalemate at the close of the article:

“Once again,” Mr. Dixon said, “we are left to rely on the government to produce all of the information that it says exists.”


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