Jun 24, 2008

Things We Lost in the FISA Fire

Mon Jun 23, 2008 at 10:26:25 AM EST

I started thinking about FISA from a different perspective after reading and writing so much about it over the weekend. Here is my attempt to look at the possible results of the FISA legislation as a practical application .

Reasonable people can disagree but I find the broad hyperbole over the recent amendment to FISA legislation to be quite unreasonable at times.

Yesterday I tried to engage the Kos Community in a serious debate over the specific language in the FISA Bill - OBAMA WAS RIGHT ON FISA The debate generated quite a bit of reasonable discussion accompanied by some ranting about how Obama has sold out the Constitution for political expediency from folks who could not point to any wording in the actual bill to substantiate their claims.

The "throw Obama under the bus" group had little desire to engage in a discussion based on the language of the bill. It's easier to get all self righteous about the issue based on the ACLU or Glenn Greenwald than it is to study the actual language and be specific about your objection. Some of it seems like the NRA "protecting" their interpretation of the 2nd Amendment.

But this diary is about taking a look at the FISA legislation from another angle that does not involve study of the language of the bill.

This is about the practical application of the FISA legislation and the possible results, trying to find examples of how it might be used to see where it leads. What are your worst fears about how this legislation could possibly be used against us?

This FISA amendment is about electronic and oral communication via computer and telephone mainly international and to and from the United States. It is supposed to be about protecting us from plots against Americans by uncovering evidence of these plots before they occur.

So what if you know every email and telephone call sent and received across the United States borders was subject to surveillance? What if we decided that expecting these communications to be private was unreasonable given what we know?

Ridiculous you say??? Well not so fast.
I want to explore what we lose if we simply consider all email and international telephone conversations to be insecure as I always have.

Ultimately FISA is about rooting out plots against us and we don't want to give up any real freedom from intrusion in the process so let us take a long look at the reality of how this bill is implemented in practice to see what we have lost.

How many communications fall under the scope of this FISA legislation?
Does anyone doubt that the numbers of international communications using email or telephone number in the millions a day?

Electronic communication comes in the form of email, usenet groups, message board websites, chatrooms, and forums like this one any of which could be used by a group targeted by FISA. The sheer volume of these communications is enormous. It is speculated that certain groups use a hide in plain sight method of communication by going to libraries or internet cafes where they log on to some obscure interest group website like orchid growers or or an ancestry surname group and post messages in code as a part of their planning. With the advent and massive expansion of the Internet there are thousands of such groups and millions of websites and forums or chat rooms where groups seeking to do harm can communicate.
Start a weblog on blogger for free and add a haloscan comment section for free and you have a site where your group can go and communicate through the comment section 24/7 that is hidden in plain sight. Of all forms of communication some of these obviously have no expectation of privacy other than the use of a screen name that conceals true identity.

According to recent statistics from blog-tracking site Technorati, the blogosphere has doubled every six months for the last three years. That's 175,000 new blogs per day worldwide. Technorati added its 50 millionth blog on July 31, 2006. On average, there are 1.6 million posts per day, or 18.6 posts per second. An April, 2008 USA Today article cites ComScore Media Metrix figures for February, 2008:
Microsoft webmail properties: 256.2 million users
Yahoo: 254.6 million users
Google: 91.6 million users
AOL webmail properties: 48.9 million users
In February, 2008, a Yahoo executive claimed the company served 260 million email users.
In October, 2007, an official Yahoo! blog cited statistics suggesting Yahoo represented 255 million of the world's 543 million webmail accounts.

In 2001 it was estimated that there were 180 million cell phones in use in the USA. By 2007 it is estimated that there are 3.3 billion users worldwide and there are 2.6 text messages per day per user for 7 billion text messages per day. If only 10% of that traffic involves the USA it is a whopping 700 million text messages a day. Now prepaid cellular phones are available for purchase on every city street corner without any information available as to the user

Looking at this data it is impossible to conceive how any FISA type program can significantly impact the privacy and freedom of American citizens. How many thousands of people would have to be employed to screen our communications if there were no restrictions on listening in on oral or reading electronic communications? Do we feel relatively private in our communications because we don't think the government can listen as a matter of law or do we feel relatively secure in communicating because of the absurdly large number of communications that are taking place every minute of every day?

Some folks here are worried about an assault on our expectation of privacy from 'unreasonable' access to our cell phone or computer communications. Now I live a rather uneventful life and I can't imagine being upset if some computer somewhere was monitoring every communication I make looking for key words that might prompt a human to review because I am not involved in anything that I think anyone would find interesting. And if I were to become involved in discussing anything I would suspect might cause concern I would find a way to do it that would confound any FISA attempt to know it.

You do know that it is very easy to clone a cell phone don't you? You do know that it is quite easy to hack a computer and view your email don't you?
It amazes me that people actually think their email and cellular communications are secure in the first place. Now if you have sufficient reason there are plenty of ways to try to secure your communications. But cell phones are as a rule a very insecure means of communication. Even some cell phone spying services leak the data they obtain. There is no easy way to fix cell phones to make them secure. It is best to use prepaid throw away phones and change them often. On the other hand there are plenty of programs available to encrypt email so it can only be read by someone with the encryption decoding program.

So what if we as a country decided that unencrypted email and cellular telephones were not covered under the 4th Amendment and there was no right to privacy for this type of communication? What would we lose?

I can't think of anything that would be lost because I don't think the expectation of security or privacy exists for those communication tools. We are more or less secure from unreasonable monitoring because of the sheer number of these communications - not because of a law or the Constitution.
We know these things are not secure from hackers and it may well be that agencies in our government or other governments intercept these communications and run them through computers trying to find the proverbial needle in a stack of needles. My reaction is - good luck with that because you won't find anything with my email or phone calls. What is more of a concern is having my identity stolen or my screen identity stolen and used by some terrorist cell implicating me in something nefarious in which I have no involvement.

So what are we losing in this FISA fire by bashing Obama for failure to protect our rights to a privacy that only exists in our dreams? If you want private email - encrypt it. If you want private cellular communication buy prepaid throwaway cell phones and change them often. But don't blame this FISA bill for "POTENTIALLY" taking away a privacy that you don't really have. The privacy that is available comes from the massive number of communications and this FISA law may have surveillance loopholes but it cannot make a dent in the tsunami of messages. The real protection or problem for intelligence gatherers is in the numbers.

We seem to be fighting over the figment of some imaginations about a privacy/security that does not truly exist. The ACLU has an agenda and seems to be behaving in a manner suggestive of the NRA's protection of the 2nd Amendment. The FISA bill doesn't make me feel more secure or more vulnerable to surveillance. I have very little objection to it's language. It certainly does nothing to dampen my enthusiasm for electing Barack Obama over John McCain.

Stop for just a minute and consider the real impact of this FISA legislation. Is it really worth it to condemn Barack Obama for his stance on this bill? Do you sound like an NRA lawyer protecting the 2nd Amendment when you argue that this bill destroys the 4th Amendment? I want to be secure in my home and my person but I'm not as concerned about my voice or electronic data once it leaves my body and and my home and becomes a tiny part of the massive flood of communication away from me. I think it is unreasonable to assume that it is secure once it has left me. Can someone convince me that I am giving up something by that thought? We need Barack Obama not some hollow indignation over the loss of something that is not truly lost.

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