Government Has Already Fooled Us More Than Once On Privacy; History Belies How CISPA Will Be Used

from the let's-get-real dept

One of the key things we’ve seen in the pushback on CISPA is that its backers insist that people arguing against it don’t really understand how the bill works, and that it does protect privacy. CISPA sponsor Rep. Mike Rogers himself took to Twitter this morning to tell the EFF that it’s misreading his bill. But, of course, as we’ve seen, it seems that Rogers himself is the one being misleading when it comes to privacy. If he truly believed in privacy protections, he would have supported a variety of straightforward amendments that made it clear how privacy could be protected. But he didn’t. Instead, he clearly left it open for abuse.

One of the key points that Rogers keeps saying over and over again is that this bill is not a “surveillance” bill. Why? Because it doesn’t allow the NSA or others to go in and automatically get info. But Rogers is choosing his words very carefully, such that he absolutely misrepresents how the bill can and almost certainly will be used. And while he and other CISPA supporters will (and have) argued that the possible abuses of CISPA are crazy conspiracy theories that wouldn’t happen in practice, we have too many examples of how the US government’s intelligence infrastructure very quickly expands to make use of every single loophole provided to them within the law — sometimes going so far as to interpret laws in ways clearly contrary to Congressional intent, just because they can. Let’s just highlight two examples:

  1. The FISA Amendments Act, which was passed in association with the Patriot Act, supposedly to give the NSA more powers to scoop up communications of folks involved in terrorist activity. Now, the NSA is — by mandate — not allowed to spy on Americans. And yet, multiple whistleblowers and hints from folks who know in Congress have made it quite clear that the NSA has interpreted the FISA Amendments Act to allow exactly that — even as many in Congress clearly don’t understand how the bill is being used.

    While it’s still not official, enough information has been revealed to show that the NSA interprets the requirement that its surveillance target foreign persons to mean that as long as it’s looking for foreign terrorist activity, it can spy on everyone. Get that? It’s a sneaky trick that many have not realized. The NSA argues — likely with agreement from a secret court ruling — that so long as it can claim that it is investigating a foreign threat somewhere, somehow, the prohibition on spying on Americans does not apply. There is increasing evidence that this now means that the NSA is scooping up pretty much all data it can get its hands on. While it may not be going through it in real time, it appears to believe that as long as it can make the argument that it’s searching for a foreign threat, that it can delve into that treasure chest of, well, everything.

  2. Next: the “national security letters” (NSL) issue. While a court recently ruled these unconstitutional, this process has been widely abused by the FBI for years to get private information on people without a warrant and with a gag order on recipients. Every time it’s been investigated, it’s been shown that the FBI has widely abused its NSL powers. However, since there’s almost no oversight, the FBI still feels free to make widespread use of the tool, which was only supposed to be used in extreme circumstances.

    Along those lines, the FBI has gotten so comfortable with asking companies for data without a warrant or any formal oversight process, that it was revealed a few years ago that, rather than going through the drudge of actually processing paperwork to get private info from AT&T, some agents simply used Post-It Notes to make their requests, which AT&T readily coughed up without question.

The point, hopefully, is clear. We’ve never seen law enforcement show any hint of not making use of any and all powers it has at its disposal to twist and interpret laws to allow it to get private information on people without a warrant or any real oversight. While the latest version of CISPA pays some tiny lip service to privacy, the simple fact is that, by definition, it wipes out all privacy laws in protecting companies entirely from liability for coughing up your information.

CISPA supporters also like to claim that since CISPA is “voluntary,” companies will have no reason to give up your private info. That’s nice in theory. And, sure, perhaps some principled companies will resist, but we’ve already seen the AT&T example above. And, even more importantly, we’ve seen how pressure from the US government, or even threats of the government shaming them publicly for not “helping” have been incredibly effective in making “voluntary” action suddenly seem obligated.

The saying goes “fool me once, shame on you. Fool me twice, shame on me.” We’ve been fooled many times by the US government insisting that certain laws won’t be used to violate our privacy, when it later comes out that they were used in exactly that way. So forgive us for calling bullshit on Mike Rogers’ claims that CISPA doesn’t “allow” the government to spy on Americans. It absolutely does. It opens up a clear path for law enforcement and intelligence agencies (and others!) to hide behind the liability protections within the law to pressure companies to reveal whatever they want with absolutely no repercussions.

That seems like a pretty serious issue, and one that Congress and supporters of CISPA don’t seem to want to admit.

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Comments on “Government Has Already Fooled Us More Than Once On Privacy; History Belies How CISPA Will Be Used”

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Ninja (profile) says:

As pointed out in ad nauseam everywhere if a law can ve abused it WILL be abused.

Even if we do believe this Government is all sweet and honest we don’t know what will happen in 10, 20, 50 years. There should not be any room for abuse in any law. If what they say is true and this Government is not going to abuse the law then any measures put in place to prevent abuse are not going to harm the Govts ability to act within the law. Simple as that.

Anonymous Coward says:

Re: Re:

That seems a bit broad. The reason why we elect politicians is that we cannot vote on every issue. That politicians nowadays are crooked is not a result of representative democracy, but how we apply it.

“Laws like this” have to be possible to pick out and it has to be a result of politicians choosing to label it like that. I am having a hard time seeing politicians giving up anything like this to a public vote since their backers might not like the result!

Anonymous Coward says:

Re: Re: Re:

The reason we elect politicians is due to historic problems of communicating with people over any distance, as much as the problem of voting. Because it took days to exchange letters, politicians had to be empowered to act on behalf of their constituents with being required to consult with them.
With the Internet, it is possible for politicians to consult with their constituents, via blogs etc.
Requiring politicians to do so would probably reduce the number of laws passed, which would be no bad thing, and make them more accountable to their electorate. While doing this avoids that people vote on all issues, it would increase their input into law making, and allow them to exercise some control over politicians.
Making politicians listen to their electorate would also weaken the party system, by increasing the connection between politicians and their electorate.

out_of_the_blue says:

First problem is corporations collecting the data.

Corporations whose charter is spying, such as Google and Facebook.

Speaking of spying, Mike: I’ve at last seen ads here, from and, both of which when right-clicked want permission to use one’s camera and microphone. Why do they want to do that? Why do you encourage corporations to SPY on your readers? Why not worry about corporate spying TOO?

Gwiz (profile) says:

Re: First problem is corporations collecting the data.

Corporations whose charter is spying, such as Google and Facebook.

If you have a problem with these corporations then take your own advice that you give everyone else concerning copyright – don’t use them. Simple.

And since you are so concerned with your privacy and Google, should I assume you’ve donated cash or at least some of your hard drive space and bandwidth to YaCy?

Reality Check (profile) says:

Re: First problem is corporations collecting the data.

That’s all you got?

All you can say in defense of your precious government is that someone else might be worse than the government?

A sane person who realized that the blog was about legislation currently being discussed, might actually consider the legislation. But you chose to whine because the author didn’t choose to focus on a something else.


MRK says:

In the end its moot. The government is above the law.

If the banks are too big to jail, how could a government agency not also be so?

Take your pick:
1 – Government agency has its own secret interpretation of the law. The government decides no laws were broken by the government.

2 – Agency’s actions are considered a state secret; No prosecution can move forward.

3 – Agency’s actions are exposed, it becomes a partisan issue, and one party or the other does their very best to make the problem go away. Only a token scapegoat goes to jail. That scapegoat being the whistle-blower who exposed the agency in the first place.

Anonymous Coward says:

how the US government’s intelligence infrastructure very quickly expands to make use of every single loophole provided to them within the law —

That’s funny. When I pointed out Aereo was exploiting a loophole to monetize the content of others without paying a retrains fee- you berated me saying that Aereo was only obeying the law

Now the shoe is on the other foot and Masnick-The-Hypocrite has shit on his face while crying over some maybe exploiting “loopholes”. As least you’re consistent in applying a double standard.

Anonymous Coward says:

Re: Re: Re:

Apparently you are easily amused. If you were able to read and understand English, you’d discover that my post was about Masnick’s hypocrisy in selectively decrying people using loopholes. I have no particular interest in this bill one way or the other. Perhaps your helper can explain it better. I’m sure she’ll be waiting for your short bus to arrive.

Anonymous Coward says:

Re: Re:

Aereo isn’t exploiting loopholes, it’s going through a convuleted process in order to not violate the law following the rules laid out in earlier rulings.

This is exploiting the law in such a way that they may act contrary to provisions within the law itself by using tricky legalese.

It’s one thing to go “the law says we have to do this to remain legal, so we did it” compared to “well the law says we can’t do this, but we CAN do this, and if we interpret this in this selective way, we can override the first thing.”

special-uninteresting says:

So. The president said that he will veto or let die on the desk CISPA if some limits on the invasion of personal privacy are not met. So the game of word-war begins.

Special interest groups (financed by intelligence agencies?) will rush back to their hives and convene several secret meetings to discuss the current dilemma; ?exactly what do we have to say to get this bill passed.? or ?How do we word the sensitive privacy passages to do what we want and yet everyone will still think their privacy is protected?? Since much of bill/act/legal writing submitted to the house and senate are written by special interest groups this is a real problem.

After the clever doublespeak rewording sessions the new passeges would be incorporated into the proposed legislation and the special interest lobbyeists would hit the party circuit and pound on doors expounding how the ‘new’ version protects everything (including their back door interpretations) and will help you flush your toilet for your also, by the way. (complete with hints that your Asthma and or stomach indigestion will get better as soon as the bill is signed into law)

Its government bureaucratic vogue/style/tendency these days for every agency/department/office to pay lawyers to come up with their own special interpretation of (any) law. With the poorly written special interest infested legislation pumped out of Washington lately thats not hard to do. Since its a round-robin affair it grows in severity each time new legislation is passed. CISPA would be the culmination of years of back room wrangling and this time with a corporate angle.

The recent post about IBM sending 200 lackeys to Washington for lobbying reasons underlines the obvious profit motive/potential. Businesses make money offering services and selling personal info/dirt/gossip on average citizens is considered (un) fair play.

In the last decade we have seen a switch from the expected legal and customer loss trouble a firm would suffer from when basic privacy rights were violated to the present free for all profit center.

It would be nice to see the pensions canceled for any government worker or elected officer who voted for or enforced secret interpretations. (Public be willing.) It would be fair and reasonable that if one does not do their job they get fired with no pension at all. (and don’t forget to throw a few bankers in jail too.)

The antics of Washington are getting predictable for any who watch it long enough.

special-interesting (profile) says:

?It doesn’t matter what the politician says it matters what he does.?

So true. And. True for all humankind and every social institution/entity within. Implied might be the hope naturally infused when we depend on people elected to make these decisions in our behalf. Which all is so sweet and nice but possibly over hopeful in light of historical and political trends. (the last 40-50 years specifically)

CISPA’s intent/design/core-beliefs seem based on a complete removal of democratic constitutional values. In addition the backers don’t ever mention citizen privacy needs except in terms of reducing them for political and government agency bureaucratic needs. (read as constitutional laziness) Its an Act almost designed to ignore privacy in spite of the obvious constitutional flaws.

The ‘war of words’ phrase attempts to point out the shell game words can play hiding the actual written meaning and meaninglessness alike. (throw in a bunch of FUD or doublespeak as a steak-sauce for the horse meat so its hard to sort out the true beef.)
Think thats to harsh? Try reading some sales books that purport to be able to sell to anyone, anything even if they don’t want or need, a proffered product.

Does anyone think that a high profile special interest group with overly paid ex-politicians as lobbyists don’t train/coach them using BASIC adversarial sales techniques? These groups are paid to get results in spite of public resistance or opinion.

Its always a bad sign when legislation is enacted in spite of significant public protest. Note not mentioning corporate and government special interest groups. Business profit needs are always taken with salt and government bureaucratic inbreeding is always to be ignored.

So. What are our elected representatives going to do? History says they will be swayed by money and words (political pressure) that goes against common hope for constitutional reason and wisdom.

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