Brindle

Hello, and welcome back to today’s episode of “Why? LOL BECAUSE WE CAN.”

Tired of your dumb old microwave that just shoots friggin’ radio waves at food to cook it? Stupid thing probably can’t even play animated GIFs or send Snapchats or download the Fergie. What’s the point?

In the coolest mod I’ve seen in ages, developer Nathan Broadbent has hacked away at his microwave to add stuff that any self-respecting microwave manufacturer of the year 2013 should have probably added themselves. Voice commands! Barcodes that pre-set cooking times! A SELF SETTING CLOCK.

Meet the Raspberry Picrowave. As you might’ve gathered from the name, it’s a Microwave mashed up with a Raspberry Pi, the $25 micro-computer adored by modders, hackers, and geeks ’round the world

Here’s what it can do so far:

• Clock sets/updates itself across the Internet
• A barcode scanner pulls cooking instructions from an online database. Such a database didn’t actually exist, so he’s building one himself, adding directions as he goes.
• Voice Commands, like “Microwave, Twenty seconds, Low.” (Alas, Nathan says his kitchen’s acoustics screw this up a bit.)
• Custom sound effects (because beeps are for chumps).
• You can control the microwave from your phone. The only uses I can think of for this are: when you know you’ll want microwaved popcorn later and can preload a bag, or when you want to convince your friends that you’re the biggest geek on the planet because you have a microwave that you can control with your phone.
• It tweets when it’s done cooking, because of course it does.

If nothing else, man oh man do I want that self-setting clock. My (two-year old) microwave uses the most ridiculous and impossibly obfuscated series of button presses for clock setting, so a power outage at my house generally means at least three months of the microwave swearing that it’s blink-thirty.

Stuffing a Pi into your microwave is cool and all, but the scale of the project gets a whole lot more impressive once he starts getting into the deeper details, from wiring the Pi into the microwave’s power supply, to designing a new control panel, to etching and producing a custom PCB that fits in the place of the original.

The fallout over the NSA leaks has been wide and varied, as you'd expect. Pissed off foreign nations are looking to offer leaker Edward Snowden asylum in a manner that almost seems punitive. College kids are giving NSA recruiters the proverbial business on campuses. And even if there is still some support for the invasive program, or otherwise apathy towards it, generally the public has been giving the spy agency a verbal middle finger.

Now we can add DEF CON, the enormously popular hackers conference, to the list of displeased parties. As a result of the recent revelations, DEF CON founder Jeff Moss has indicated that the feds are not welcome at the upcoming DEF CON 21.

"When it comes to sharing and socialising with feds, recent revelations have made many in the community uncomfortable about this relationship," Moss said. "Therefore, I think it would be best for everyone involved if the feds call a time-out and not attend DEF CON this year."

This may be a bigger deal than it would first appear. A great deal tends to come out of these conferences, which are built on an open dialogue about security and research with the hacker culture. It should also be noted that the feds have provided serious contributions to the conference in the past.

Alas, when you undertake to treat everyone like an enemy, you should expect to be treated likewise. A shame.

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Note: Originally posted in July but moved here because the internet is cyclical and it's going around again. Entering part of the Konami code (up, up, down, down, left, right, left, right, B, A -- and then keep pressing A) on any page of Vogue's UK website will make a sexy velociraptor in a different hat appear and shoot across the page. I've been doing it for fifteen minutes straight. This is probably the most time I've spent on a women's fashion and lifestyle website since I was reading sex secrets on Cosmo last night. PROTIP: If a sex move you've been wanting to try is defined on Urban Dictionary, your lover probably isn't gonna be thrilled about it. Thanks to Alex, Lauren S, Matty W, Kt, carpe_ , Ford, TheDead and Michelle, who are convinced dinosaurs are the future of fashion and they are CORRECT.

This is the $45,000 conference table made from a retired 747's General Electrics engine. Only the nacelle of the engine though, so it's not like you could use it to build your own plane if you bought one. WHICH FOR $45,000 YOU SHOULD. Man, could you imagine investing your hard earned money in a company, then finding out later they bought a $45,000 table for the conference room? Because if that happened to me they'd have A SERIOUS F***ING PROBLEM on their hands. Namely, an unannounced guest at the next board meeting swinging a baseball bat. *shattering projector* YOU NO GOOD SONS OF BITCHES TOTALLY ENRON'D ME! Thanks to Dunc, who holds conferences at a table made from a closet door laying across two folding chairs.

So, we were just discussing the insanity of the FISA court (FISC) basically acting as a shadow Supreme Court, making broad rulings in total secrecy that have created a secret body of law that the public is not allowed to know about. Given increasing revelations about these shadow laws, the ACLU and other public interest groups are trying, yet again, to get access to some of these key rulings. All along, they've been extremely careful to note that they're not asking FISC to reveal specific foreign intelligence issues, operations or targets: merely the parts of the rulings that identify what the law is -- i.e., how it's being interpreted by the courts. Because that seems rather fundamental to a functioning democracy.

However, as you might expect, the Justice Department has now hit back with a new filing that says, flat out, the public has no right to know what the secret court is ruling on and how it's codifying secret laws. The argument is, basically, that because FISC rulings have almost always been secret, then it's perfectly reasonable that they're secret. In other words, it's perfectly legal for secret laws to remain secret, because they're secret. Later it also argues that actually revealing the law would be (oooooooh, scary!) dangerous.

Let's make this simple: yes, revealing specific details of various surveillance efforts and targets could create security issues, no doubt. But revealing how a United States' law is interpreted can never by itself create a national security issue. And that's all that's being asked of here. The DOJ is being incredibly dishonest and disingenuous in conflating the two issues, arguing that because the FISC deals with intelligence operations, that its rulings on the interpretation of the law must also be secret. But that's wrong. You can reveal the basic interpretation of the law without revealing the specific intelligence efforts and methods. The only reason to keep the interpretation of the law a secret is because it'll be a huge embarrassment and show widespread abuse.

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I'm not sure what the NSA recruiters were expecting when they made a recruiting trip to the University of Wisconsin, but I'm sure the following wasn't it. Maybe they thought they wouldn't be challenged. The sort of students looking to work with the NSA would presumably have had a healthy deference to authority drilled into them since an early age. Maybe they thought that any challenges could be waved away with a simple refusal for "security reasons." Maybe they thought the attending instructor would attempt to moderate the discussion.

None of that happened.

The student who transcribed the recording of the recruiters' visit thought there might be a bit more discussion about current events, and how Snowden's actions had affected recruiting and the agency itself. Instead, more time was spent trying to paint the NSA employees as a fun-loving bunch who spy all day before heading out to blow off steam getting drunk, wearing costumes and singing karaoke. (I am not making this up.)

One of the recruiters discussed how they tend to socialize after work, dressing up in costumes and getting drunk (referenced below). I can imagine that also exerts a lot of social pressure and works as a kind of social closure from which it would be difficult to escape.

Yes, NSA agents are human beings and will relax like other humans do once off the clock. There's nothing wrong with that, but the recruiters seemed unwilling to be dragged into a discussion of the actual "job," and the repercussions of the work they do. Instead of meeting the questions head on, they both made the rather poor decision to play word games with linguistic students.
Students Question the NSA at Recruiting Session by Madiha

Here are few of the highlights.

Student A (female): I have a lifestyle question that you seem to be selling. It sounds more like acolonial expedition. You know the “globe is our playground” is the words you used, the phrasing that you used and you seem to be saying that you can do your work. You can analyze said documents for your so-called customers but then you can go and get drunk and dress up and have fun without thinking of the repercussions of the info you’re analyzing has on the rest of the world. I also want to know what are the qualifications that one needs to become a whistleblower because that sounds like a much more interesting job. And I think the Edward Snowdens and the Bradley Mannings and Julian Assanges of the world will prevail ultimately.

NSA_M: I’m not sure what the –

Me: The question here is do you actually think about the ramifications of the work that you do, which is deeply problematic, or do you just dress up in costumes and get drunk?

...

NSA_M: We take it very seriously that when we give info to our policy makers that we do give it to them in the right context so that they can make the best decision with the best info available.

Student B: Is that what Clapper was doing when he perjured himself in front of Congress? Was he giving accurate information when he said we do not collect any intelligence on the US citizens that it’s only occasionally unintentionally or was he perjuring himself when he made a statement before Congress under oath that he later declared to be erroneous or at least, untruthful the least truthful answer? How do you feel personally having a boss whose comfortable perjuring himself in front of Congress?

NSA_F: Our director is not general Clapper.

Student B: General Alexander also lied in front of Congress.

NSA_F: I don’t know about that.

Student B: Probably because access to the Guardian is restricted on the NSA’s computers. I am sure they don’t encourage people like you to actually think about these things.

…

Me: Right, but you’re here recruiting so you’re selling the organization. I mean I’m less interested in what your specialized role is within in the NSA. I don’t care. The fact is you’re here presenting a public face for the NSA and you’re trying to sell the organization to people that are as young as high schoolers and trying to tell us that this is an attractive option in a context in which we clearly know that the NSA has been telling us complete lies. So, I’m wondering is that a qualification? [ref. to earlier question: "So, this is a job for liars?"]

NSA_F: I don’t believe the NSA is telling complete lies. And I do believe that you know, people can, you can read a lot of different things that are portrayed as fact and that doesn’t make them fact just because they’re in newspapers.

Who knows what song you have to belt out to shake off something like this, but whatever it was, I'm sure recruiters M and F were at least a half-dozens sheets to the wind when they did it. It's tough to find a fiery, angst-unloading track written from the perspective of The Man, so perhaps they settled for a quiet duet of Radiohead's "Fitter, Happier," a song most normal people don't find aspirational.



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Edward Snowden is not a constitutional lawyer. But his public statement explaining his decision to blow the whistle on what he and Congress both know to be only the "tip of the iceberg" of state snooping secrets expresses a belief in the meaning of the Constitution: in a democracy, the people – not his defense contractor employers or the government that hires them - should ultimately determine whether mass surveillance interfering with everyone's privacy is reasonable.

Some have tried to minimize the import of the snooping exposed by Snowden on the grounds that the government is just storing the information it gathers, and has not yet searched it. The Fourth Amendment of the Constitution prohibits "unreasonable searches and seizures." Seizure – the taking of private information – is what the government has now been forced to admit in its decision to prosecute Snowden for telling the truth about their secret seizures. Whether or not the state ever chooses to "search" the seized information, the universal, non-consensual seizure itself of what used to be called "pen register" data grossly invades individual privacy and vastly empowers government, all in violation of the Constitution if "unreasonable."

The Supreme Court reads the Fourth Amendment's "unreasonable" test to mean not "objectively reasonable," United States v. Leon, 468 U.S. 897, 922 (1984). This would mean "reasonable" as viewed by ordinary citizens - like Snowden. The Fourth Amendment is a unique exception to the Constitution's general choice of representative democracy ("a Republican Form of Government," Art. IV, §4) over direct democracy. The term "reasonable" appears nowhere in the Constitution except in the Fourth Amendment, although it is a concept well-known to law. For example, legal negligence is a breach of what a jury determines a "reasonable man" would do in the same circumstances. A similar standard has been imported into Fourth Amendment determinations. The Supreme Court long ago said that "probable cause for a search exists when the facts and circumstances within the police officer's knowledge provide a reasonably trustworthy basis for a man of reasonable caution to believe that a criminal offense has been committed or is about to take place." Carroll v. United States, 267 U.S. 132 (1925). So what the public deems reasonable is what the Constitution means by reasonable. Though public opinion is always relevant to interpretations of the Constitution, this is the only context where the Constitution directly assigns to the people the power to determine what the Constitution means.

By definition, the people cannot deem to be "reasonable" what they do not know about. Snowden uniquely did know. So like a digital era Paul Revere he decided to share his knowledge with his fellow citizens to test his hypothesis that they would not consider dragnet surveillance of their private electronic communications any more reasonable than he did, and like him, as citizens, they might choose to act upon that knowledge.

A strong case can be made that Snowden is right. Hence there is no need for him, or his supporters, to concede that he has broken any law. According to the Supreme Court, "it remains a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." California v. Acevedo, 500 U.S. 565 (1991) (quoting Katz v. U.S.)

The scope and duration of the seizures revealed by Snowden make them inherently non-judicial in nature, as discussed below. Any exception to the Fourth Amendment's "right of the people to be secure in their persons, houses, papers, and effects" in the absence of showing individualized probable cause – or even reasonable suspicion – that a crime is being or will imminently be committed places it well outside the judicial process. This imposes a heavy burden on the state to prove that its search was otherwise “reasonable,” and not a breach of the Fourth Amendment's “bulwark against police practices that prevail in totalitarian regimes.” (id. Stevens, J. dissenting).

According to the Snowden revelations the Obama administration has violated this rule. A valid warrant could not have been issued under this rule when no reasonable person could possibly believe, no matter how much irrational fear the state and its propagandists are able to drum up, that universal crime by the general public, or by Verizon subscribers in particular, has been committed or is about to take place.

The state's burden of proving reasonableness is more difficult to carry in that the Constitution was designed to prohibit in every conceivable way known to its framers just the kind of authoritarian intrusion by central government on autonomous self-governing citizens that the Bush and Obama administrations' power-grabbing, privacy-invading nationwide snooping on innocent citizens represents. At least three constitutional protections against tyranny in addition to the Fourth Amendment reasonableness requirement should also invalidate such encroachments.

1. In his Federalist #47, James Madison explained the separation of powers principle: “The accumulation of all powers legislative, executive and judiciary, in the same hands ... may justly be pronounced the very definition of tyranny.” The dual sovereignty of the federal system was intended to further divide those separated powers between what is truly of national concern and what is of only local concern. "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. "Bond v. United States,131 S. Ct. 2355, 2365 (2011) (Kennedy, J., for unanimous Court ).

   1. The question as to separation of powers is: which branch of the state, if any, can be trusted to accurately discern and express the judgment of the people as to the Fourth Amendment reasonableness of a permanent and universal regime of search and seizure of private communications? Since the subject restrained by the Fourth Amendment is the state acting in its executive capacity, the contours of the restraint on executive powers cannot be left to the subjective determination of the executive branch itself. Allowing the executive branch to decide the reasonableness of its own actions would defeat the purpose of the Fourth Amendment. Hence the views of Obama, his prosecutors, military, and spies are all irrelevant to this determination. They stand accused of violating the rule of reasonableness which, not them, but the people must decide.

      The judicial power under Article III of the Constitution extends only to the application of law in individual cases. Like stories, cases have a beginning, a middle and an end. The state does not have the power to initiate and courts do not have the power to hear a never-ending case against the whole population of the United States, or even against the subset of all the customers of Verizon. Only a police state with its secret tribunals takes such an adversarial posture against its own people. Where the government diffusely suspects and secretly snoops on the whole people, in a democracy, it is the government itself that proves itself illegitimate, unrepresentative, unreasonable, and in violation of its oath to support the Constitution.

      The power to make rules that affect everyone into the indefinite future is inherently a legislative and not a judicial power. An unelected “court” that violates the separation of powers by exercising legislative powers in order to make new rules empowering the executive in secret collaboration between the two separate branches is the very definition of tyranny, in Madison's terms. Having a judge authorize an act does not turn that authorization into a “judicial process” as required by Katz. No judge or magistrate, let alone one judge of a multi-judge tribunal, Colleen Kollar-Kotelly acting in secret even from her own secret FISA court, can exercise Article III judicial authority, let alone collaborate with Article II executive power, to decree a universal and unending search or seizure of private communications. Any such unlimited “search and seizure” of persons who are not even suspects takes place inherently “outside the judicial process” of cases. As stated in Acevedo and Katz quoted above, it is therefore presumed “per se unreasonable under the Fourth Amendment.”

      A legislature authentically representative of the people might determine that such a generalized search is a reasonable and necessary exception to this per se rule under some “specifically established and well-delineated” circumstance “that society is prepared to recognize as 'reasonable,'" Katz (Harlan, J, at 361). That has obviously not been done. Few in Congress were even aware of the scope of the snooping being conducted by the Obama administration and its strained interpretations of law. Nor were they aware of the advisory opinions from a nominal court in fact acting as a secret unelected legislature acting in secret complicity with the executive branch to circumvent constitutional norms and usurp its legislative power.

      Legislators were in any event proscribed from sharing with their constituents any knowledge they did acquire. Hence they could not represent any views of their constituents about the reasonability of secret spying which their constituents did not even know about.

   2. With respect to federalism, the general police power to define and enforce criminal law resides with the states, not the federal government. Most of what the federal government now targets as part of its domestic “war on terrorism,” which it invokes to justify universal snooping, in fact constitutes the local common law crimes traditionally described as “riot” or “mayhem.” The federal government has no generalized power to enforce state criminal law or make its own. There is no general power given the federal government in the Constitution to “fight terror,” which is a tactic. The government therefore has an initial burden to prove that its invasion of the privacy of every target of its dragnet surveillance program was “necessary and proper” to enforce some specific federal power that is enumerated in the Constitution.

      This proof has been alleged but, if it exists at all, it remains hidden under a blanket assertion of state secrecy. What the people can see before their own eyes is the most expensive security state in the history of the world incompetent to prevent, except for those attempts resulting primarily from the state's own entrapments, several atrocious domestic crimes having varying degrees of international provenance. If spying actually did prevent other attempted crimes, as alleged, then where are the attempt indictments and prosecutions to prove it?

2. Since the “war” against terrorism is not a war in any traditional meaning of the term, but rather law enforcement by military means, and the NSA is a military spy agency, the Third Amendment command that, “No solider shall, in time of peace be quartered in any house” may be dusted off for application in the information age to this extreme case of state intrusion into private homes.

   This is a time of peace in North America both because Congress has not declared war in any traditional notion of the term, and because the framer's original concept of war did not include overseas imperial adventures. The Third Amendment bespeaks war within the United States.

   Electronic communications capacity has become an inherent feature of any modern dwelling house in the United States. Yet every electronic communication originated and sent from private homes is being seized by the military. Such permanent residence by Big Brother military spies within one's private stream of communications could be seen as an updated form of unconstitutional “quartering,” the same kind of abuse of power by the military against citizens that the founders detested and prohibited, except in time of war

Aside from these constitutional restrictions on Congress from authorizing a universal spying program, and Congress's actual failure to assess and represent general public views about the reasonableness of mass spying, there is another factor that precludes Congress as it functions in the era of money in politics from representing the objective public view of Fourth Amendment reasonableness.

What makes a modern Paul Revere like Edward Snowden necessary is that even Congress itself cannot be trusted to represent the will of the people, in these corrupt times, on virtually any subject on which money speaks. Polls consistently show confidence in Congress declining to around 10%, while about 80% of voters consider the government to be illegitimate in terms of the Declaration, i.e., lacking the “consent of the governed.” Of likely voters, 69% think Congress will “break the rules” for their financial contributors. Other polls express the country's universal understanding (95%) that big money invests in politics for the large financial returns it earns by controlling government.

Such polls indicate a widespread understanding that Congress does not represent the people in any real sense. Its members and leadership are widely perceived as instead beholden to money. No politician wins office without some compromise of democratic legitimacy by dependence on plutocrats and special interest money, and certainly not a governing majority and its leadership without a lot of such money. Thus enactment of a law by Congress purporting to determine what the people think is reasonable is not necessarily a valid constitutional law that mirrors objective reasonableness.

Even aside from the lucrative government surveillance contracts that special interest money secures from Congress to subsidize “America’s last growth industry,” the plutocrats who buy enough politicians to dictate policy feel more secure when the people are stripped of their liberties. Without civil liberties, the people of the United States cannot sustain a democracy dependent upon that “consent of the governed” engraved on its foundation stone when laid in 1776. Without civil liberty, money can continue to rule by purchasing influence from its elected peddlers. In this corrupted system what the overwhelming majority of people may consider reasonable is now irrelevant to members of Congress, whether the subject is establishing effective weapon background checks or anything else opposed by the plutocrat class who pays them. See Martin Gilens, Affluence & Influence: Economic Inequality and Political Power in America (2012). Congress can thus not reliably represent the public's view of Fourth Amendment reasonableness, even if it had tried.

What do the American people consider reasonable concerning mass surveillance? A Washington Post poll (question #8) taken after the Boston Marathon bombing suggests that most Americans with an opinion would worry that government surveillance in the name of fighting terrorism would be unreasonable (i.e. “go too far”):

“Which worries you more: that the government (will not go far enough to investigate terrorism because of concerns about constitutional rights), or that it (will go too far in compromising constitutional rights in order to investigate terrorism)?

Will not go far enough: 41%
Will go too far: 48%
Neither (vol.): 5%
No opinion: 4%

A Pew poll taken after the Snowden revelations confirmed that a similar majority finds mass surveillance unreasonable. They answered “no” by 52-45% to the straightforward question: “Should the gov't be able to monitor everyone's email to prevent possible terrorism?”  On the question of whether Snowden's NSA leak “serves the public interest” a majority with an opinion thinks it did, by 49-44%. If they “knew government had collected their data,” 63% said they “would feel their personal privacy was violated.” Of those respondents who agree with the Tea Party, 65% “Disapprove Gov't collection of telephone and internet data as part of anti-terrorism efforts.”

A TIME poll has 54% thinking Snowden did a “good thing,” in response to a neutrally phrased question: “Do you feel that the person who leaked the information about this secret program did a good thing in informing the American public or a bad thing?

A Washington Post/ABC Poll asked: “The NSA surveillance program was classified as secret, and was made public by a former government contractor named Edward Snowden. Do you support or oppose Snowden being charged with a crime for disclosing the NSA surveillance program?”

A majority having an opinion opposed prosecution 48-43%, with independents opposing even more. An overwhelming majority of 65% supported “having the U.S. Congress hold public hearings on the NSA surveillance program,” suggesting the public dismisses the claimed need for secrecy as being more important than their own privacy interests.

When such a majority, or even a substantial minority, opposes government snooping in everyone's electronic communications, that should be a conclusive indication as to whether such a search and seizure is generally viewed as unreasonable.  If reasonable people can differ on the question, then such a search and seizure cannot be held to be reasonable. “Reasonable” is what any reasonable person would accept. As one scholar recently observed, “the actual course that Internet surveillance law will take remains extremely difficult to predict.” That is because such a public consensus of reasonableness has not been reliably and formally determined and expressed. It is important for the public to step in now to resolve this uncertainty by formulating and expressing informed views on reasonableness of dragnet surveillance. The “judicial” appraisal of reasonableness that has taken place outside of public view is only a single data-point for the public to consider in reaching its own independent assessment of reasonableness.

Those who would rely upon Smith v. Maryland (1979) for a rule that pen registers are inherently exempt from the Fourth Amendment, due to the court-determined lack of public “expectation” of privacy with regard to dialed telephone numbers, ignore the Court's important proviso in that case that swallows any such firm rule based primarily on word-play. The five-judge majority held that such attributed “expectations” would not govern, and “a normative inquiry would be proper … [f]or example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry,” 442 U.S. 740-741, n. 5, which has essentially just happened, for all private digital communications purposes. &nbsp

In other words, it is not what the public cynically “expects” from a tyrannical and intrusive government that secretly evades its constitutional obligations, but what the public “normatively” considers reasonable which must govern application of the Fourth Amendment. The people are thus entitled to “expect” what they think is reasonable conduct from their government even if such conduct is not in fact forthcoming from a government demonstrably not dependent upon their opinion, and the public knows it. Otherwise, as Justice Marshall wrote, reliance on public “expectations” in the sense of factual predictions of government behavior, “would allow the government to define the scope of Fourth Amendment protections.”

Three Smith dissenters, Marshall and Brennan, expressly, and Stewart, implicitly, thought the “normative” exception should have governed the Smith case itself. Smith was a case where the pen register targeted the phone of a specific suspect of a specific crime against a known victim involving use of the telephone, the evidence of which crime was strong enough that the suspect was ultimately convicted. The Court's rationale was that Smith reasonably expected the telephone company to know the number he called, which knowledge – once shared with the police - provided evidence of his guilt.

Smith provides no support for the idea that the public would either expect or consider “normatively” reasonable the indiscriminate maintenance of pen registers for all the electronic communications of persons, the overwhelming portion of whom were not remotely suspected, let alone probably guilty, of any specific crime either involving or not involving such communications.

Justice Marshall also cogently attacked the word-play foundations of Smith by pointing out that because persons may release private information to a third party for one purpose “it does not follow that they expect this information to be made available to the public in general or the government in particular. Privacy is not a discrete commodity, possessed absolutely or not at all.“ Since the false dichotomy of expectations used by the majority is a logical fallacy and propaganda technique, the public would likely find far more reasonable the relativist view of privacy expressed by Justice Marshall that “[t]hose who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes” without a warrant.

Whether the contrary holding by the Smith majority was unreasonable is a question for the public to decide, and courts to merely discern, not dictate. For a Fourth Amendment determination of what is “unreasonable” the Supreme Court does not have the power to decree, but only mirror and reflect, the public's objective sense of reasonableness of government intrusions on their individual privacy.

The standard remedy against the state for making an unreasonable search or seizure is a damages claim against the officials involved where a jury would determine reasonableness. At the time of the Constitution this was the practice for protection of citizens from state intrusion. “An officer who searched or seized without a warrant did so at his own risk; he would be liable for trespass, including exemplary [i.e., punitive] damages, unless the jury found that his action was "reasonable.” … [T]he Framers [of the Fourth Amendment] endeavored to preserve the jury's role in regulating searches and seizures.” 500 U.S. 581-2 (Scalia. J., concurring).

A jury, properly selected and informed, can be fairly representative of, and a legitimate disinterested proxy for, informed public opinion. A civil jury is thereby institutionally capable of reflecting what society at large considers reasonable. The Federal Rules of Civil Procedure, Rule 48, requires a unanimous verdict of at least six jurors. Thus a fairly small minority of jurors representing a similar minority of the public can force either a compromise verdict by which alleged snooping is found unreasonable, or at least a mistrial if other jurors refuse to negotiate.

The problem with the civil justice solution contemplated by the Constitution's Seventh Amendment however is that courts have invented official immunities to protect government officials from juries. E.g. Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364 (2009). This tends to remove the question of Fourth Amendment reasonableness from the jury where the Constitution originally placed it, and delegate that decision right back to those very officials who cannot be trusted to guard the chicken-coop, and to the judges who invent defenses subversive of the Constitution in order to exempt those officials from their constitutional responsibility. Even aside from judge-made official immunities, new judge-made “standing to sue” rules prevent victims of unconstitutional secret surveillance from seeking any remedy in court without prior individualized evidence. E.g. ACLU v. NSA. Judge-made state-secret and sovereign immunity doctrines, in catch-22 fashion, block plaintiffs from getting that evidence.

The Justices on the Supreme Court appointed through an increasingly corrupt and unrepresentative political process (three justices of the Smith majority were Nixon appointees) cannot be trusted to reflect the public's objective view of what may be a reasonable sacrifice of privacy in exchange for achieving some proportionate benefit toward achieving legitimate law enforcement goals. As observed by one of the last great Supreme Court Justices, appointed just prior to the institutionalization of Nixonian corruption, in Fourth Amendment cases the “Court has become a loyal foot soldier in the Executive's fight against crime.” (Stevens, J.). The government's proportionality analysis between loss of liberty and security is difficult to take seriously when, as one comedian observes, falling furniture accidents cause more harm than the terrorism offered to justify its new erosion of liberties.

If any branch of the state were conceded the formal power to decide Fourth Amendment reasonableness in the current environment of the independence from the will of the people by all three separate branches of the state, and their corrupt dependence on the will of money, it would inevitably use that power to cancel the people's civil liberties, as it has already done in secret. The remaining public forum where the public may yet formulate and express its judgment about the reasonableness of mass surveillance purporting to target terror is a criminal jury trial.

Bradley Manning was denied his constitutional right to such a trial because of the paradoxical notion that the US Military, which is uniformly sworn “to support this Constitution” as required by Article VI (cl. 3) thereof, can operate as a Constitution-free zone in its treatment of soldiers like Manning under the false pretense that their actual sworn duty is to do anything the military determines necessary or proper for promoting “security” against shadowy “enemies.”

The Supreme Court has held that “the constitutional grant of power to Congress to regulate the armed forces … itself does not empower Congress to deprive people of trials under Bill of Rights safeguards, and we are not willing to hold that power to circumvent those safeguards should be inferred through the Necessary and Proper Clause.” So far this broad principle has been applied only to honorably discharged soldiers, Toth v Quarles, 350 U.S. 11, 21-22 (1955), as well as, fortunately for Snowden, any civilian, even if tried abroad, Kinsella v. U.S. ex rel. Singleton, 361 U.S. 234 (1960), including the military's own civilian employees, like Snowden. Grisham v. Hagan, 361 U.S. 278 (1960); McElroy v. Guagliardo, 361 U.S. 281 (1960).

It remains for a soldier like Manning to expose the military's betrayal of its universal oath to support the Constitution by winning application of the Bill of Rights to at least those cases, like his, involving other than uniquely military crimes like desertion, see Dynes v. Hoover, 61 U.S. 20 How. 65 (1857), or cases not driven by the exigencies of the actual battlefield. The battlefield exception supposedly justifies the betrayal, but in fact excuses only skipping the Fifth Amendment indictment of a soldier who is “in actual service in time of War or public danger” not a Sixth Amendment trial.

Snowden, if he chooses to return to the United States to face trial or is forced to do so – notwithstanding that he has a compelling claim to political refugee status– will present a difficult target for the money-stream media to demonize, although they are trying. Unlike the case of Manning, the government must provide Snowden a public trial fully compliant with the Bill of Rights. On the evidence of his well-articulated public statements, Snowden would seem to have the makings of a good witness and, on a level playing field, a capable match for tyrants, both in and outside the courtroom.

In any Sixth Amendment criminal trial of Snowden, a profoundly important – even defining - issue will be weighed in the balance. If Snowden did catch the state massively violating its Fourth Amendment obligations in the view of even a significant minority of the public, then the interests in maintaining the secrecy of those police-state surveillance methods cannot constitutionally receive any legal support whatsoever from a justice system operating under the Constitution.  

A number even smaller than the majority that polls show generally favor Snowden would be sufficient to predictably prevent a representative jury of 12 peers from unanimously finding the state's search to be reasonable. F.R.Crim.P., R. 23, 31(d).

Obama's aspiring police-state's whole project of classifying its violations of the Constitution should then fall. Keeping his violations of the Constitution secret might be constitutionally “necessary” to carry out Obama's goals, but it is not “proper” if the surveillance state goals themselves are unreasonable. If the underlying snooping is unreasonable, the secrecy of the snooping, and the effort to punish one blowing the whistle on this secret unconstitutional project would all be a profoundly illegal abuse of power.

Snowden has a different argument that his revelation to countries who are not enemies of the United States about US hacking is also not punishable. State-sponsored hacking is increasingly seen as an act of aggression inconsistent with international law, a principle accepted by the U.S. which has also made domestic hacking a serious crime. The same rule that the state cannot enforce any law solely to keep secret and abet its own illegal conduct would apply to these revelations as well. The state must obey the law, not operate like organized crime enforcers eliminating witnesses to their crimes.

A criminal jury's independence in handling this question of reasonableness in Snowden's case would seem definitive of whether the US is a police state or still possesses sufficient civil liberties to peacefully reclaim its democracy. Surely every citizen who has information about a crime is obliged to provide that information in accordance with legal processes that comply with the Constitution. But neither pervasive government secrecy nor enduring mass surveillance is consistent with the democracy established by the U.S. Constitution. In any Snowden trial the preservation of the original constitutional protection against creation of a police state will require that a fairly impaneled and informed jury decide this question of reasonableness without interference from the state apparatus of secret courts and secret laws that belie any notion of due process.

Since the US justice system cannot be trusted, as a matter of course, to provide constitutional due process, Snowden would need to negotiate the rules of the game before consenting to face a U.S. trial. He has some strong cards to play in such negotiations, if he can stay alive. If he plays those cards 1) to draw a judge not blackmailed by or otherwise secretly dependent upon the national security state, 2) to get a fair jury impaneled, and then 3) to fairly place before that jury the question whether the government's snooping was unreasonable, he need not remain a fugitive from US injustice.

Such a trial would constitute a fair test, and a useful one, of whether Snowden was guilty of anything other than defending the Constitution in the noble spirit of '76, whether Obama and his military is guilty of impeachable wholesale violation of the Constitution, and whether the US has retained sufficient liberty that it can still be counted among the world's democracies, a status that Europe is beginning to doubt. Although if ignorant politicians and propagandists in and outside of government continue to charge Snowden with espionage, under the bizarre notion that his revelations to the US public of its government's secret violations of the Constitution amounts to intentional “adhering to [the US's] Enemies, giving them Aid and Comfort,” he may eventually not be able to obtain a fair trial in the US at all, due to jury panel bias.

Given the highly politicized US judiciary, Snowden is wisely playing for time and a stronger hand by first seeking justice in a political asylum process or extradition hearing, whether it would have taken place in Hong Kong or now elsewhere. Hong Kong was a good initial choice. British standards of justice there have not been entirely eradicated under its current Chinese rulers and, unlike the US, the Chinese government had no apparent axe of its own to grind in the Snowden affair.

By international standards, the US and its judiciary rank below Hong Kong on a 2012-13 rule of law index. While American propagandists routinely imply that the US system is a paragon against which all others must be measured, in fact, objectively, Hong Kong ranks #8 and #9 respectively on absence of corruption and quality of its criminal justice system, well ahead of the US's #18 and #26 rankings. The World Economic Forum – which certainly suffers no anti-US or general anti-plutocrat biases -- ranks Hong Kong #12 in its 2012-13 index on judicial independence. That is substantially higher than the appallingly low US ranking of #38 on the same index, which is proportionately not that far ahead of China's #66 ranking. If due process was his priority, Snowden was clearly no fool in choosing sanctuary in Hong Kong, though he is aware of the coercive and corrupting power that the US can and does bring to bear on virtually any country. Though China is better situated than most to resist such pressure, it appears that even China preferred not to pay the cost. Or perhaps his security could not guaranteed as effectively in Hong Kong as in Moscow, for the time being.

The paradox to be resolved is that the US justice system cannot be trusted to rein in a secrecy-obsessed and vengeful government exposed in illegal conduct as necessary to permit a fair trial to go forward under constitutional protections; but at the same time a legal process is the only means to resolve the question about the constitutionality of the government's conduct and Snowden's innocence.

As Snowden forum-shops and otherwise jousts with the US government within an international legal context, he might consider making an offer to voluntarily participate in his trial, prior to any extradition, from outside the country by telecommunication with the courtroom. Such practices for taking evidence are allowed by law and are not uncommon. Rule 43 of The Federal Rules of Civil Procedure provides: “For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” Cf. F.R.Crim.P 26. Snowden's legitimate fear of returning to the US would seem good cause and his now widely followed case a compelling circumstance to use electronic means for cutting through the dilemma and allowing legal proceedings in his case to move toward some conclusion without Snowden having to trust a defective U.S. justice process to preserve his rights.

Such a digital age trial would no doubt attract a large audience, serving the ultimate purpose of educating, along with the jury, the American people – and even the world – about one of the most fundamental democratic rights.

Such an offer by Snowden could only strengthen the hand of any country who takes what his experience in China has apparently shown to be the costly act of resisting an extradition request by the U.S. The asylum country could insist that before it will entertain any extradition request, the U.S, must obtain a conviction of Snowden through such a fair “in absentia” proceeding following constitutional procedures as might be agreed by Snowden – rather than make a mere allegation that can as easily be characterized as political repression. Until then an asylum country would be justified in claiming that what Snowden did was no crime as indicated by the supportive polls indicating that it is the U.S, government, not Snowden, who has acted unreasonably and therefore illegally.

Any trial of Edward Snowden will determine how much of the 1791 Constitution remains in force in one of the great civil liberties contests in American history. The jury – and the American people – would then choose between Obama's Constitution, which insulates the state – and those who buy influence peddled by its politicians – from the consent of the governed by manipulating reality, or Snowden's Constitution which empowers an informed people to protect themselves against tyrannical state intrusions upon their liberty by “uncovering” reality. If Snowden is who he appears to be, his trial could be comparable to the celebrated John Peter Zenger Trial in colonial times. Though, as then, the judiciary presides over what amounts to a taxed-without-representation colony of an illegitimate ruling class which it serves, a fairly selected and instructed jury, supported by the people, watched by the world, could nonetheless – by standing in solidarity against that class – win a resounding victory for liberty.

Rob Hager writes on public corruption issues and is a public interest litigator who wrote and filed briefs in the Supreme Court's 2012 Montana states rights sequel to Citizens United, American Tradition Partnership, Inc. v. Bullock.

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The release of a report from the Inspector General on the Bureau of Internal Information Programs (BIIP) brings with it the surprising news that the various agencies under its purview spent $630,000 pursuing Facebook "likes" in an attempt to increase their popularity. Normally, I would be setting the keyboard to "Mock Relentlessly," but this isn't so much a case of the government blowing tax dollars on stupid stuff as it is a case of using the wrong tool (bureaucracy) for the job (increasing engagement). That being said, it still means the money was ultimately wasted, but not in the "espresso machine in every cubicle" sort of way. (And there will probably be a little mocking.)

The Bureau of International Information Programs is supposed to be the leading edge for the State Department's public relations front, as John Hudson points out in his article for Foreign Policy.

The IG report stings -- especially because the Bureau of International Information and Programs is supposed to be Foggy Bottom's epicenter of online savvy. The bureau includes groovy-sounding divisions such as the Office of Innovative Engagement, which evangelizes on the "importance of using online engagement to drive offline, person-to-person activities and events." The bureau's stated mission is to be Foggy Bottom's "foreign-facing public diplomacy communications bureau" and supports its "growing social media community that numbers over 22 million followers."

An attempt to harness the power of social media through the bureaucratic interworking of 150 agencies is doomed from the start. It makes it very difficult to hone in on a clear strategy and avoid creating a disjointed, inconsistent mess. What makes it impossible is "leadership" that fails to meet even the laxest definition of the word. This is the first thing that greets readers of the report once they scroll past the introductory material, listed as the first item under "Key Judgements."

Bureau of International Information Programs (IIP) leadership failed to convey its strategic vision to staff members, despite formalized communications. Leadership created an atmosphere of secrecy, suspicion, and uncertainty.

"Secrecy, suspicion and uncertainty" are certainly hallmarks of government leadership. It's never a good thing, but it's certainly much worse when the intended aim is to present a unified and engaging social media presence.

According to the report, first flagged by the Diplopundit, overlap and coordination issues trouble the various bureau's 150 social media accounts. The report also mentions a "pervasive perception of cronyism" exacerbating its already "serious morale problem."

Cronyism is also a hallmark of government leadership, common enough that this perception will likely never go away. And again, 150 social media accounts, steered by dozens of agencies with no clear guidance, is a recipe for public affairs disaster. Added to the stultifying mix of secrecy, suspicion, uncertainty and a "perception" of cronyism is the crippling banality of bureaucracy, something that takes a straightforward job and turns it into a soul-deadening morass where the left hand doesn't know what the right hand's doing, but both have signed off on it -- in triplicate.

There is overlap and a lack of clarity in the functions and responsibilities between the Office of Web Engagement and the Office of Innovative Engagement. Staffing gaps in the latter, coupled with a 15-month vacancy in the director position, have left the office adrift and less able to play its role as the bureau's new technology pioneer.

An example of overlap is IIP's 20/100/100 program, which helps 20 embassies at a time raise their social media fan base by 100 percent in 100 days. At the conclusion of an embassy's participation in the program, its social media staff members frequently turn to the Office of Web Engagement rather than the Office of Innovative Engagement for advice. As the number of participating embassies rises with each round of the program, the advising function is shifting to the Office of Web Engagement, drawing staff members away from their primary duties.

The Inspector General does a marvelous job attempting to convey the relation and primary of two nearly identically named offices, but it's obvious the staff views the two as interchangeable. Logically, it would seem the Office of Web Engagement would cover, well, web engagement. The IG explains the distinction between the two, but it isn't so much an explanation as it is a statement of "This is for This." It also fails to clarify how an understaffed office that has run without a director for 15 months is supposed to handle the very important (to the BIIP, at least) social media functions.

The Office of Innovative Engagement is the proper place for this function for two reasons. First, its mandate is to keep up with the latest changes in social media rules and approaches. Second, it runs the Social Media Hub, the Department's primary repository of this information.

In summation, the Inspector General recommends "clarifying the roles, scope and responsibilities" of these two separate, but largely similar offices. It would seem a name change would go a long way towards clearing things up, or better yet, combining the two since everyone's used to going to the wrong place anyway. The staffing issue would be somewhat mitigated and there would actually be someone filling the director position.

As is to be expected from the preceding info, the Department's social media "strategy" seems to be the result of staffers being asked to hit targets (see the 20/100/100 program above) but given very little guidance on how to achieve these goals.

With the Department's use of social media comes strategic questions of the role, purpose, and limitations of the medium. A consensus is emerging that developing numbers of Facebook followers and Twitter fans may not lead automatically to target audience engagement...

The actual worth of a "Like" or a Twitter follower is still up for discussion, but you can go a long way towards negating the value of both by placing numbers ahead of engagement.

The bureau spent about $630,000 on the two campaigns and succeeded in increasing the fans of the English Facebook pages from about 100,000 to more than 2 million for each page. Advertising also helped increase interest in the foreign language pages; by March 2013, they ranged from 68,000 to more than 450,000 fans.

Much of this expense came in the form of paid post promotion, something Facebook makes almost mandatory if you're going to reach the maximum number of "fans." Then again, paying to push it to everyone's feed isn't a guarantee that it will be seen, much less engaged with. Paying for eyeballs also carries with it a faint hint of gaming the system, something both largely ineffective and somewhat morally suspect.

Many in the bureau criticize the advertising campaigns as "buying fans" who may have once clicked on an ad or "liked" a photo but have no real interest in the topic and have never engaged further...

IIP's four global thematic English-language Facebook pages had garnered more than 2.5 million fans each by mid-March 2013; the number actually engaging with each page was considerably smaller, with just over 2 percent "liking," sharing, or commenting on any item within the previous week. Engagement on each posting varied, and most of that interaction was in the form of "likes." Many postings had fewer than 100 comments or shares...

The Inspector notes that engagement is "a means, not an end." The true purpose of the State Departments social media presence is to "accomplish specific PD (Public Diplomacy) goals." This may be true, but if these offices are going to utilize social media, it's rather hard to achieve the "ends" without putting more thought and care into the "means." (Or, at the very least, some sort of unified front.)

Government entities face a much more uphill battle for hearts and minds than commercial entities, considering there's usually no end product to admire and no day-to-day presence in their lives. These entities also tend to view social media as a top-down structure from which they can dump press releases and photo ops onto the masses. This is not unlike government in general which, with the notable exception of campaign season, tends to operate in the same fashion.

If these departments are unwilling to engage on a level that actually feels like engagement to the public, chances are achieving "public diplomacy" goals via social media will be next to impossible. "Managing" this with a bureaucractic layers of redundancy only makes things worse. "Social media" isn't "regular media." It has little interest in regurgitating press releases and waiting around until government officials decide it's convenient to "address the media." The "macro" effort might benefit from committees and 68-point "Recommendations" directive, but the "micro" moves too quickly for that.

What the Inspector General found concerning the State Department and its use of social media is exactly what anyone should have expected to be discovered. The government is bureaucratic, something that meshes not at all with social media. Paying for "Likes" is the least of the State Department's social media problems. The largest problem is that what's detailed in this report is the natural state of many government entities and it's unlikely to be solved by rearranging the desks and issuing "clarifying" memos.

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If you take a hard line in your belief in free speech, you need to double that staunch stance when it comes to humor and satire, because they almost universally require an edge or offense of some kind. Quadruple your stance if that humor or satire is aimed at anything having to do with the government, since they're not allowed to be offended by our speech. Sorry, government, but that's the deal we made two-hundred-plus years ago: you get to pretend like you represent us and we get to make fun of you for it.

But apparently there are a significant number of attorneys general out there who are working hard to show you they don't have a sense of humor at all and they'll be damned if you get to laugh at a joke they don't find funny. At least, that's the conclusion I'm coming to after 23 AGs pressured Urban Outfitters, Inc. to pull their Prescription Line of products, which included a coffee mug dressed up to look like a prescription bottle. Ohio AG Mike DeWine appears to have led this conga line of stupid:

"People die from accidental drug overdoses in this state every day, and these products make light of the problem," DeWine said in a May press release.   "We don't find these products funny at all."

Unfortunately, Urban Outfitters caved and pulled the products, but think of all the things you could nix with this line of thinking: Many people are seriously concerned that they've been abducted by aliens, so we can't allow The X-Files on television. Hitler's Germany killed a buttload of people, so The Producers is not allowed. A certain percentage of the followers of Islam are offended by depictions of the Prophet Muhammed, so we can't show a satirical cartoon in...oh, wait.

And that's really the point: once we begin giving away our right for humor or satire in speech in favor of the comfort of the offended, we're lost. You might as well just outlaw humor altogether. This case shows that wonderfully, considering that nothing about a prescription coffee mug is directly poking fun at anyone overdosing or dying. Making that leap requires legs for which my mental faculties won't allow. Besides, I have to imagine there are better things twenty-three attorneys general could be doing than writing letters about coffee mugs.

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We recently discussed the US Chamber of Commerce's incredibly strange statement on the state of India's IP protection (or lack thereof). The CofC first applauded the success of India's Bollywood industry, achieved without strong IP protection, before insisting the only way it would survive was by implementing strong IP protection. This, of course, was the CofC advancing its own agenda, despite being faced with evidence to the contrary.

It's the sort of doublespeak frequently deployed by IP-reliant industries in the US in their attempt to force the world to align their laws with ours. The argument always seems to be for more "protection," even if foreign industries are thriving without it.

In a Congressional letter sent to the administration by 170 "concerned" members of Congress, India's IP laws come under attack again. This time it's the pharmaceutical industry being defended from India's supposedly inadequate protections.

Under the umbrella of claiming that policies of the Government of India favor domestic producers over U.S. Exporters – in other words, that India is protectionist – the Members of Congress claimed that “the intellectual property (IP) climate has become increasingly challenging in India.”

What's so challenging about it? Well, it seems that India actually practices some sort of quality control on patents, much to the dismay of American pharmaceutical companies looking to exploit the system the way they do domestically.

Under the WTO TRIPS Agreement, India has every right to define standards of patentability so long as they satisfy minimum standards of patentability set forth in TRIPS, namely novelty, inventive step, and industrial activity. India has elected to define and apply standards of patentability rigorously. When this rigorous standard is applied in India, it prohibits patents on secondary patents involving new uses of existing medicines or minor modifications of existing medicines/active ingredients that do not significantly enhance therapeutic efficacy.

This raises the bar for American companies, who are finding it harder to extend patents past the 20-year exclusivity through evergreening (or as pharma companies refer to it: "patent lifestyle management"). While a majority of patents run through the process smoothly, some just don't meet the Indian standard.

Although Members of Congress and Big Pharma executives, including those from Novartis and Pfizer, condemn an Indian decision denying a patent on secondary form of the anti-cancer medicine Glivec, they neglect to acknowledge that both Novartis and Pfizer have received hundreds of patents on medicines in India in the past 8 years and that it is only the frivolous or unworthy patents that are being screened out.

This rejection, and the more rigorous patentability standards India adheres to, suggest there will be more of the same in the future. That's simply not acceptable for pharmaceutical companies, who are used to extending patents for decades at a time. Also upsetting is the government's issuance of compulsory licenses on lucrative imported drugs, something India is legally allowed to do by the TRIPS agreement.

Using fully lawful compulsory licensing procedures, India did issue a compulsory license on an overpriced Bayer cancer medicine, citing three justifications in a 60-plus page decision: excessive pricing, failure to supply the market, and refusal to produce locally. As a result of this license, the cost of the cancer medicine has now fallen more than 97%, showing the excess mark-up that Bayer imposes on patients. Rather than acting arbitrarily, the legal system in India allows a court review of the compulsory license decision, which Bayer is now pursuing.

The members of Congress and the corporations behind him have decided to portray these actions as evidence the Indian government skews its protections in favor of domestic producers, a claim that's rather audacious in its hypocrisy.

It is deeply ironic when the world's biggest wolf cries wolf. Any objective examination of U.S. trade policy, including that represented in the current negotiations of the Trans-Pacific Partnership Agreement, would conclude that the U.S. is relentless in its pursuit of heightened standards of patentability, data protection, and enforcement in order to protect the interests of Big Pharma and other IP-intensive domestic industries. Over 600 industry representative sit on advisory committees to the U.S. Trade Representative having privileged access to otherwise secret trade agreement proposals...

It's an insult to our collective intelligence when Members of Congress misleadingly condemn alleged "protectionism" in India while tolerating monopoly encroachment globally and doing so to protect "jobs and investments" in the United States.

The industries propelling these secret trade agreements love protectionism, and want to extend this "home field advantage" to as many foreign markets as possible. This is aided greatly by making these agreements contingent on US-directed overhauls of existing IP law. The lesson is: if you want to do business with the US, you'll play the rules -- our rules. It's an agenda set by favored industries and executed by our legislators, both of whom seem more than willing to undermine successful foreign industries simply because it doesn't fit with the "strong IP protection creates jobs" narrative.

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Etsy seller PeregrineStudios has recreated the button combos to play all 12 songs from The Legend of Zelda: Ocarina of Time as jewelry rings. You can get the entire set for $450, pick six for $250, or buy them individually for $60. Buying them all at once does save you $270 though. Which songs do you get? ALL OF THEM, I ALREADY TOLD YOU. In case you forgot: Be honest, how many of you went to listen to a couple of those on Youtube as soon as you were reminded of them? Because I did. As a matter of fact, I fired up the video of the Song of Storms playing for ten hours straight and I'm going to listen to for the rest of the day and allow to INFLUENCE MY WRITING. Will it get better? Probably not. Will I fall asleep? *shaking Magic 8-Ball* Dammit, I shook it too hard and now it's all bubbly. Thanks to Dagnie, who has every intention of wearing them all at once. Same!

Former President George W. Bush commented on a variety of subjects in an interview with CNN, but of most interest to me was his comments on the NSA surveillance leaks. It's well known that many of the programs started under his administration, and apparently, he insists that the programs are fine because civil liberties are "guaranteed."

"I think there needs to be a balance, and as the president explained, there is a proper balance," Bush said.

Asked about an NSA program that tracks people's Internet activity, Bush said, "I put that program in place to protect the country. One of the certainties was that civil liberties were guaranteed."

Of course, the various leaks to date suggest that's not even close to true. But, really, what does that even mean? How are they "guaranteed"? You can't just say that sort of thing, you have to actually make sure it's true, and so far there's been little to no evidence to support that claim. For civil liberties to be guaranteed there would need to be a clear belief and reverence for things like the 4th Amendment. Instead, we have secret FISA court rulings that reinterpret the plain language of the Patriot Act to mean something different than how it reads in English. How is that "guaranteeing" civil liberties? It sounds a lot more like redefining words so that the administration can "claim" that civil liberties are protected by making sure that any that aren't actually protected are simply written out of what counts as "civil liberties."

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It was fairly amazing in the wake of the initial leaks on NSA surveillance efforts that we saw folks in DC -- including many in the press -- try to claim that it was (a) no big deal and (b) everyone knew it was going on anyway. Soon after this came out, Steve Worona pointed out that many of the arguments appeared to be the equivalent of alternative pleading, in which people (normally) lawyers try to plead things that are clearly contradictory. In this case, Worona noted the alternative pleading went this way, demonstrating the ridiculousness of the attempted "defense" of the program:

• There is no massive secret NSA surveillance program.
• And everyone has known all about it for years; it's no big deal.
• And revealing it would be a major threat to national security.

In fact, to this day, we still see plenty of people making these kinds of arguments -- a Rep. Mike Rogers' specialty. However, as we've seen, while many people have suspected that this kind of extensive program was going on, they were often mocked or brushed aside as conspiracy theorists. However, as more and more evidence has come out, it's served to confirm that these programs do exist, that they go beyond what "everyone has known" and that they don't appear to reveal anything that is a major threat to national security.

Roger Cohen, at the NY Times, has a really good rundown of things we would not know about if it weren't for these leaks:

We would not know how the N.S.A., through its Prism and other programs, has become, in the words of my colleagues James Risen and Eric Lichtblau, “the virtual landlord of the digital assets of Americans and foreigners alike.” We would not know how it has been able to access the e-mails or Facebook accounts or videos of citizens across the world; nor how it has secretly acquired the phone records of millions of Americans; nor how through requests to the compliant and secret Foreign Intelligence Surveillance Court (F.I.S.A.) it has been able to bend nine U.S. Internet companies to its demands for access to clients’ digital information.

We would not be debating whether the United States really should have turned surveillance into big business, offering data-mining contracts to the likes of Booz Allen and, in the process, high-level security clearance to myriad folk who probably should not have it. We would not have a serious debate at last between Europeans, with their more stringent views on privacy, and Americans about where the proper balance between freedom and security lies.

We would not have legislation to bolster privacy safeguards and require more oversight introduced by Senator Patrick Leahy, Democrat of Vermont and the chairman of the Judiciary Committee. Nor would we have a letter from two Democrats to the N.S.A. director, Gen. Keith B. Alexander, saying that a government fact sheet about surveillance abroad “contains an inaccurate statement” (and where does that assertion leave Alexander’s claims of the effectiveness and necessity of Prism?).

Indeed, and that's really only scratching the surface, because more and more info keeps coming out, both directly from the leaks, but also from the responses to those leaks. Tim Lee, over at the Washington Post has tried to put together a list of everything we now know about the surveillance efforts, which is already out of date, given additional leaks and additional statements, but it's a good starting point.

The clear point is that we're learning some very valuable things in terms of the level of government overreach with these programs, and how they've been used to expand the plain reading of the laws that are supposed to protect us, such that the government is basically making a total mockery of those laws. But one thing we cannot say is that these revelations are "nothing new" or that everyone knew about them all along.

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This is a replica of 'The Homer', the car Homer designed in The Simpsons after being given a job at Powell Motors by his half brother Herb in the season two episode 'Oh Brother Where Art Thou?'. This real-life version was built by Porcubimmer Motors, and while not an exact replica (i.e. no bubble driver's compartment), it's pretty close. I'd drive it. Granted it would have to be without a valid driver's license, but that's only because the local authorities don't agree with my style of driving. "You were caught using a mirror to try to drive facing backwards." I'm gonna be a stunt car driver! Hit the jump for several more shots and a video of the thing peeling out all zoom-zoom like.

It appears the New York City council would like to see some changes in the NYPD. Two bills were passed recently (known together as the "Community Safety Act") that have put Mayor Bloomberg and Chief of Police Ray Kelly on the defensive.

The first seeks to install independent oversight of the NYPD, something the Dept. of Justice itself recommends. (The DOJ's recommendation is contingent on a judicial decision finding the department's "Stop and Frisk" program unconstitutional.) This, of course, has enraged Mayor Bloomberg, who's definitely not interested in anyone policing his "personal army." (Just in case anyone feels the previous sentence is hyperbolic, here's the mayor's quote, which he delivered during a speech at MIT in 2011.)

“I have my own army in the NYPD, which is the seventh biggest army in the world. I have my own State Department, much to Foggy Bottom’s annoyance. We have the United Nations in New York, and so we have an entree into the diplomatic world that Washington does not have,” Mayor Bloomberg said.

Bloomberg's reaction to the DOJ's recommendation echoed his previous audacious statement.

The U.S. Department of Justice filed papers Wednesday saying that if a federal judge ruled the NYPD's practices unconstitutional, then the DOJ would strongly endorse the use of a monitor to oversee changes at the department.

The mayor, however, said that the police department needs a clear line of authority. "No military organization or paramilitary runs where you have confusion in the command structure. You just cannot have that. Lives are on the line," he said in a question-and-answer session with reporters.

Part of the NYPD's problem is Mayor Bloomberg himself. The fact that he regards the police department as both "his" and a "military organization" is indicative of his mindset. Bloomberg wants a military force policing his city and has done everything in his power to bring his own brand of martial law to NYC. For its own good, of course.

With this bill passing with enough votes to override his veto, Bloomberg has gone on the attack (along with Chief Kelly), throwing around statements that give the impression New York City is only a single militarized policeman away from a crippling crimewave. The balance is apparently so delicate that any change will destroy the balance and put millions of New Yorker's in jeopardy.

In separate appearances, Mayor Michael R. Bloomberg and his police commissioner, Raymond W. Kelly, sought to portray the bills — one aimed at increasing oversight of the Police Department and the other at expanding the ability to sue over racial profiling by officers — as a divisive tool that would undermine the police’s efforts to get guns off the streets and continue to lower the murder rate.

The problem is neither of these statements are true. Stop and frisk doesn't get guns off the street or lower the murder rate. The NYCLU's report on stop and frisk showed the total number of weapons recovered in 2012 increased by a total of 96 guns compared with 2003 (pre-stop and frisk), an increase of 0.02%. And as the NYCLU's Donna Lieberman pointed out, homicide numbers were dropping before the stop and frisk program was introduced and homicide rates have decreased more dramatically in other large cities.

The first threat to Bloomberg's "personal army" doesn't take effect until Jan. 1st, 2014, meaning this decision would be passed on to the next mayor of New York City. Bloomberg can veto this bill (and will) but it has the support needed to override his veto (it passed 40-11; the override threshold is 34 votes).

The second bill takes aim at the "racial profiling" aspects of the stop and frisk program. As has been noted, 87% of those stopped and frisked over the last decade have been black or Latino. This percentage would be enough to indicate profiling, but even more damning evidence came to light during the still-ongoing lawsuit. A secret recording caught a commanding officer stating explicitly the targets of stop and frisk: "I told you at roll call, and I have no problem telling you this, male blacks 14 to 20, 21."

By expanding the definition of "profiling" to include "age, gender, housing status and sexual orientation" and allowing individuals to sue police in state court for "policies that disproportionately affect people in any protected categories without serving a significant law enforcement goal," the city council hopes to make the first moves towards killing off the stop and frisk program.

As was stated earlier, Bloomberg feels this sort of "interference" would be "harmful" to his "military." His efforts to kill this legislation will include attempts to "turn" a councilperson in order to eliminate the 34th vote needed to override his veto. Even in this, the Mayor took the time to evoke the "victims" of independent oversight and additional NYPD culpability.

He declined to say how he might persuade one council member to switch positions, saying only: “This is a fight to defend your life and your kids’ lives. You can rest assured that I will not give up for one minute.”

If the NYPD resists these reforms as much as their "personal leader" does, it could actually mean a jump in crime numbers. The NYPD may decide to simply do less enforcement or deterrence in order to prove that the meddling bills did indeed "undermine police efforts." And it wouldn't take much to persuade many of these cops to "do less." Like many personal armies, the NYPD is home to plenty of low-level corruption and laziness.

Ten percent of them were malcontents who worked as little as possible. Unless they are being paid overtime, officers seem to avoid writing summonses. Indeed, some police officers need to be weaned of the idea that they are paid to drive around in their patrol cars, eating doughnuts.

And those sentiments came not from critics of the department, but from police commanders and city lawyers.

If the perfect storm comes together, the NYPD could be facing independent oversight and a major disruption in the "stop and frisk" process, if not an actual judicial decision declaring the whole thing unconstitutional. Judging from what we've seen so far, we can expect future reactions from Bloomberg and the NYPD to range from "ugly" to "uglier."

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As lots of folks keep trying to delve into the mind of Ed Snowden without really knowing him at all, Andrew Katz at Time has an article about the security clearance process that people go through to get into a job like that, discussing some of the "blind spots" in the process that might have let an Ed Snowden through. Apparently, the EFF sticker on his laptop should have been a warning sign:

In a photograph posted online after Snowden revealed himself, his laptop displays a sticker touting the Electronic Frontier Foundation, a longstanding advocate for online rights and staunch opponent of government surveillance. That would have been enough of a warning sign to make it into his file, Smith says, but investigators wouldn't have come across it because clearance interviews aren't performed at their homes: "You're not around that person's personal belongings to make any other additional observations about that person's characters."

It seems a bit extreme to suggest that merely supporting a group like EFF automatically makes you suspect for jobs in the intelligence world. After all, isn't EFF defending basic Constitutional freedoms that Americans hold dear, and which our government is supposed to be protecting? But, even more to the point, if having EFF paraphernalia makes you a potential security risk in the NSA, what does that say about NSA Director, General Keith Alexander who attended last year's Defcon in an EFF t-shirt: Clearly, the NSA is doomed. Its boss is a huge security risk who never should have been given clearance!

More seriously though, it's getting fairly ridiculous when supporting basic Constitutional rights suddenly makes you a security risk. We're entering witch hunt territory, which is what happens when people get overly paranoid.

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The NSA leaks just keep on coming, and the latest one is a big one. It's concerning the NSA is about the Stellar Wind program -- which had been revealed before, and which former NSA whistleblower Bill Binney has discussed in the past -- but Binney left the NSA in 2001. The latest document is a report from the Inspector General that confirms some of the claims Binney has made in the past, showing that the NSA collected "bulk metadata" on emails of US persons. The program started as only being about non-US persons, but was later expanded by the DOJ in 2007 to cover US persons as well.

According to a top-secret draft report by the NSA's inspector general – published for the first time today by the Guardian – the agency began "collection of bulk internet metadata" involving "communications with at least one communicant outside the United States or for which no communicant was known to be a citizen of the United States".

Eventually, the NSA gained authority to "analyze communications metadata associated with United States persons and persons believed to be in the United States", according to a 2007 Justice Department memo, which is marked secret.

So, remember all that stuff the NSA and the President and various elected officials were saying about how they're not collecting internet data on Americans? And how they have minimization procedures and all of that? Yeah. So, that was -- yet again -- less than 100% accurate. Or, as Director of National Intelligence James Clapper likes to say, it was, perhaps, the "least untruthful" version of the events, meaning that it wasn't truthful.

Of course, the defenders of the program will say that this is okay because it was "just metadata," rather than the contents of email, but that's a huge cop out, since metadata can tell you an awful lot:

The internet metadata of the sort NSA collected for at least a decade details the accounts to which Americans sent emails and from which they received emails. It also details the internet protocol addresses (IP) used by people inside the United States when sending emails – information which can reflect their physical location. It did not include the content of emails.

On top of that, defenders of the metadata collection of phone records claimed that there was no privacy in the phone numbers you called and the duration of calls, because that information was clearly on your phone bill that the company sent to you each month. But that's not the case with email metadata.

For what it's worth, the administration shutdown this particular program in 2011, but that was after it had gone on for 10 years, with the last four involving collecting bulk metadata on Americans.

"The internet metadata collection program authorized by the Fisa court was discontinued in 2011 for operational and resource reasons and has not been restarted," Shawn Turner, the Obama administration's director of communications for National Intelligence, said in a statement to the Guardian.

"The program was discontinued by the executive branch as the result of an interagency review," Turner continued. He would not elaborate further.

However, as Glenn Greenwald and Spencer Ackerman at the Guardian (who broke this story as well) have noted, they have evidence that at least a similar program continues today:

In December 2012, for example, the NSA launched one new program allowing it to analyze communications with one end inside the US, leading to a doubling of the amount of data passing through its filters.

Some of the report actually helps to confirm a Washington Post story from last week about how this bulk metadata collection was initially done under no authority, but when various DOJ officials threatened to resign, they quickly got the FISA court to pull out its trusty giant rubber stamp to allow bulk data collection on emails.

The expansion of metadata collection and analysis to cover Americans came about as the NSA insisted this would help them better find foreign threats:

Wainstein told Mukasey that giving NSA broader leeway to study Americans' online habits would give the surveillance agency, ironically, greater visibility into the online habits of foreigners – NSA's original mandate.

"NSA believes that it is over-identifying numbers and addresses that belong to United States persons and that modifying its practice to chain through all telephone numbers and addresses, including those reasonably believed to be used by a United States person," Wainstein wrote, "will yield valuable foreign intelligence information primarily concerning non-United States persons outside the United States."

Basically this pretty much confirms my earlier post about how the NSA (and the DOJ) are carefully defining "target" in their mandate. Most people believe that since the NSA can only target persons outside the US that they cannot collect data on US persons. However, if (as may be the case) they claim that the overall investigation is "targeting" non-US persons, it appears they believe they can collect and analyze data on US persons, meaning that they've effectively justified bulk spying on Americans if it might possibly bring to light a foreign threat.

One thing that is not clearly described is exactly how the NSA is getting access to this data, but from previous leaks, it appears that the data almost certainly comes from working with telcos to install systems that scoop up all data going through major ISPs/backbones. Either way, it seems abundantly clear, yet again, that the NSA surveillance, contrary to statements from the NSA and its defenders, included a ton of information on Americans.

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The joke around the NSA used to be that the acronym stood for "No Such Agency" as its very existence was denied for years. While the NSA is now very official, it's still probably the most secretive agency out there. That's to be somewhat expected, given its mission, but it appears that when it needs to be transparent, it doesn't do very well at all. We noted yesterday that Senators Ron Wyden and Mark Udall had called the NSA out for flat out lying on a "fact sheet" the agency had posted about its section 702 surveillance efforts. The NSA's response? They quietly deleted the pdf document from their website. Because it's not like the internet notices when you suddenly delete the document you put out to defend your overreaching surveillance techniques... You'd think that, of any agency out there, the NSA would recognize the most that simply deleting something on your local computers doesn't make it actually disappear from the world. But, here's the best part:

Separately Tuesday, another NSA official said the removal of the fact sheets and letter from the senators were unrelated.

Ah, yeah, I'm sure it had absolutely nothing to do with that whatsoever...

In more "unrelated" news, NSA boss, General Keith Alexander has also admitted that perhaps the fact sheet wasn't fully accurate:

"After reviewing your letter, I agree that the fact sheet that the National Security Agency posted on its website on 18 June 2013 could have more precisely described the requirements for collection under Section 702 of the FISA Amendments Act."

Oh, I'm sure that the original wording was fairly "precise." It's just that it was precisely misleading, which is the sort of precision that the NSA seems to specialize in when it comes to any sort of public discussion.

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The top secret "No-Fly" list has been problematic since day one. The DHS and FBI apparently believe over 20,000 people are too dangerous to allow to board a plane but not dangerous enough to arrest.

This is the process the government follows to place would-be travelers on the no-fly list.

1. The government places a person on the no-fly list.

That's all there is to it. The list is too "sensitive" to publish and exposing its methodology would apparently result in airliners raining down around us.

If you're a lucky recipient of the "no-fly" designation, here's how you're informed of your new status.

1. Purchase a ticket and attempt to travel.
2. Be rebuffed by TSA personnel.

This process can sometimes be applied with more flexibility.

1. Purchase a roundtrip ticket and fly to a foreign destination.
2. Attempt to return home.
3. Be rebuffed by local customs/security officials.

You won't know you're on The List until the list is triggered, which could happen when you're a few thousand miles from home. And if you think you're boarding the next boat back to the US, think again. The list is also "no-sail," meaning passenger ships are out of the question.

Now, if you're on the list and wish to be removed or, at the very least, informed of why you've been banned from commercial airline travel, there's no reason to panic. The DHS has a resolution process that relies very heavily on "process" and skips the "resolution" completely.

Their only recourse is to file a request with the Department of Homeland Security's "Traveler Redress Inquiry Program," after which DHS responds with a letter that does not explain why they were denied boarding. The letter does not confirm or deny whether their names remain on the No Fly List, and does not indicate whether they can fly. The only way for a person to find out if his or her name was removed from the No Fly List is to buy a plane ticket, go to the airport, see if he or she can get on the flight – taking the risk of being denied boarding and marked as a suspected terrorist, and losing the cost of the airline ticket.

One wonders what a letter that answers no questions and explains nothing is supposed to "redress."

Dear Sir/Madam No Fly,

Thank you for expressing an interest in our Traveler Redress Inquiry Program. The Department of Homeland Security works in conjunction with all domestic airports, as well as those in 22 other nations worldwide, in order to provide you with a safe traveling experience. We hope that you will continue to make use of our products and services.

Thank you again for your support.

If you have additional comments or questions, please dial (202) 282-8495.

Sincerely,
The Department of Homeland Security

This decade-long lack of specifics or actual redress has led to the ACLU suing the federal government on the behalf of thirteen no-fly list members.

Thirteen people on the no-fly list have sued the U.S. government, arguing that their placement deprives them of due process and smears their reputation by branding them as terrorists. Several of the men who filed suit have been surrounded at airport security areas, detained and interrogated.

The suit seeks to either remove the plaintiffs from the no-fly list or tell them why they are on it.

Government attorney Scott Risner addressed these complaints by arguing that air travel is not a "right" but a "convenience."

Risner said placement on the list doesn't stop people from traveling, and stopping people from using one mode of travel doesn't deprive them of their liberty. That's a key question in determining whether the government must ensure due process and one that's at the heart of the constitutionality of being placed on the list.

"We're not suggesting that there's not a convenience in air travel," Risner said. "(But) there's no right to travel without impediments. That's what's happening here.

Risner went so far as to point out that those stranded by sudden inclusion on the no fly list had made it back to the US via alternate forms of travel, thus "proving" a lack of air travel isn't preventing traveling.

Unfortunately for Risner, Judge Anna J. Brown wasn't buying it.

"To call it 'convenience' is marginalizing their argument," Brown said. [She] said alternatives to flying are significantly more expensive. "It's hugely time-consuming, and who knows what impediments there are between the Port of Portland and other countries."

She also pointed out that sea and land travel options aren't suitable replacements for flying, especially when time is of the essence and that the government's argument "fails to take into account the realities of modern life."

The DHS and FBI would obviously like everything to proceed the way it has for years, which means convincing the judge that flying isn't a fundamental right. This removes the question of constitutionality, as least as far as flight restrictions go.

The ACLU has gone further, though, declaring the entire system to be screwed up.

"We're asking the court to finally put a check on the government's use of a blacklist that denies Americans the ability to fly without giving them the explanation or fair hearing that the Constitution requires. It's a question of basic fairness," said ACLU Staff Attorney Nusrat Choudhury, one of the ACLU attorneys who will argue the case Friday in Portland. "It does not make our country safer to ban people from flying without giving them an after-the-fact redress process that allows them to correct the errors that led to their mistaken inclusion on the list."

It also points out that issuance of notice and due process are required for much less far-reaching actions.

The ACLU argues that this system violates the Fifth Amendment's command that the government cannot deprive a person of liberty "without due process of law." Courts have ruled that the Constitution requires some kind of notice and hearing for far less severe actions, such as losing state assistance for utility bills or being suspended from school for 10 days.

Judge Brown hasn't said when she'll issue a ruling, but so far she seems less than impressed with the government's arguments. In the meantime, 20,000 people, including the 13 US citizens represented here (four of which are military veterans), are still stuck in War on Terror limbo -- unofficially "detained" in the US by secretive travel restrictions.



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Yesterday was George Orwell's birthday, and to celebrate, people in Utrecht perched little party hats atop CCTV cameras in public places.

By making these inconspicuous cameras that we ignore in our daily lives catch the eye again we also create awareness of how many cameras really watch us nowadays, and that the surveillance state described by Orwell is getting closer and closer to reality.

No one tried this in London, because there are not enough party hats in the universe.

George Orwell’s Birthday Party (via Making Light)

Well, this is interesting. Last week, of course, it was revealed that the DOJ has charged Ed Snowden for various crimes, including "theft of government property." In fact, Rep. Mike Rogers, the head of the House Intelligence Committee, seems to think this is the key charge, and argues (ridiculously) that the documents "belong to the people of the US" and that Snowden somehow "stole" them by giving the documents to those very same "people of the US."

However, as Declan McCullagh points out, the DOJ's own manual very clearly says that it is "inappropriate" to charge people who take government documents and information with theft of government property, in part because that might lead to unfair prosecution of whistleblowers:

Section 641 of Title 18 prohibits theft or receipt of stolen government information as well as theft of the documents, computer discs, etc., that contain the information. United States v. Fowler, 932 F.2d 306, 309-10 (4th Cir. 1991); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.), cert. denied, 444 U.S. 871 (1979); United States v. DiGilio 538 F.2d 972, 977-78 (3rd Cir. 1976), cert. denied sub nom. Lupo v. United States, 429 U.S. 1038 (1977). But see United States v. Tobias, 836 F.2d 449, 451 (9th Cir.), cert. denied, 485 U.S. 991 (1988). Nevertheless, for the reasons set forth below, the Criminal Division believes that it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when: (1) the subject of the theft is intangible property, i.e., government information owned by, or under the care, custody, or control of the United States; (2) the defendant obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained as a result of wiretapping, (18 U.S.C. § 2511) interception of correspondence (18 U.S.C. §§ 1702, 1708), criminal entry, or criminal or civil trespass.

There are two reasons for the policy. First, it protects "whistle-blowers." Thus, under this policy, a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft. Second, the policy is designed to protect members of the press from the threat of being prosecuted for theft or receipt of stolen property when, motivated primarily by the interest in public dissemination thereof, they publish information owned by or under the custody of the government after they obtained such information by other than trespassory means.

And yet, the "theft of government property" seems to be central to the government's charges against Snowden, suggesting that, yet again, the administration is really grasping at straws in trying to charge Snowden with anything it can dig up for daring to blow the whistle on the surveillance program.

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Over the past few years, we've found that Rep. Mike Rogers, the head of the House Intelligence Committee, has an incredible knack for spewing pure bullshit in defense of whatever he's supporting, rarely even bothering to make sure his statements are internally consistent. Still, his statements on Meet the Press this weekend take that nonsense to a new high. Rogers goes off on Snowden -- who he has already declared "is a traitor" -- arguing in favor of the "theft of government property" charges against Snowden by making the following statement:

"He has taken information that does not belong to him -- it belongs to the people of the United States."

Right. This information that "belongs to the people of the United States," which has been totally hidden from us, was actually finally given to the people of the United States -- to which Rogers admits it belongs -- by Snowden. And, for that, he's a traitor? How, exactly, does that work? By Rogers' own argument, the information, before Snowden leaked it, was improperly withheld, thanks to people like Rep. Mike Rogers, from the people who own it. Thus, by Rogers' own logic, isn't it actually Mike Rogers who is the traitor in that he withheld crucial information that "belongs to the people of the United States"?

Of course, Rogers didn't stop there. No, no. He continued with his internally inconsistent, and blatantly ridiculous argument by saying that (1) terrorists now know what we're up to and are changing what they do, and (2) so little information has been revealed that everyone thinks they know what's happening, but don't. That makes no sense. If (1) is true, it suggests that the actual details of the program have been revealed and thus wrongdoers now know our methods. But, immediately, he changes course and says that no one really knows what's going on -- in which case he shouldn't be concerned about terrorists changing what they do, because it shouldn't stop the successful programs that no one knows about.

We have seen that bad guys overseas -- terrorists who are committing and plotting attacks on the United States and our allies -- have changed the way they operate. We've already seen that. To say that's not harmful to the national security of the United States, or our safety, is just dead wrong...

[....] This is the problem with having a thousand-piece puzzle, taking three or four pieces, and deciding that you're now an expert on what that picture looks like. You're gonna get it wrong. They're getting it wrong and it's dangerous.

So, let me get this straight. The revealed information means that reporters only see a few pieces of the puzzle so they're getting the story "dead wrong." But... the terrorists, who are reading these stories are somehow, magically, getting the full picture (the one the reporters are getting dead wrong) and miraculously changing how they act to now avoid NSA surveillance dragnets? How's that work? Answer: it doesn't. Rogers is spewing bullshit.

We don't ask for much from our elected officials, but is it really too much to ask that they make statements that are internally consistent within the brief block of time they open their mouths to yap about some subject on which they're supposedly "in charge"?

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Andy Borowitz, who writes popular satirical pieces, has a great one entitled, "U.S. Seemingly Unaware of Irony in Accusing Snowden of Spying," in response to the news from late last week that Edward Snowden has officially been charged under the espionage act. Like all great satire, it works because the underlying point is so true. Edward Snowden isn't a spy. He exposed massive spying by the US government. And yet he's the one charged with espionage?

At a press conference to discuss the accusations, an N.S.A. spokesman surprised observers by announcing the spying charges against Mr. Snowden with a totally straight face.

“These charges send a clear message,” the spokesman said. “In the United States, you can’t spy on people.”

It does seem quite ridiculous that the response to exposing massive spying to the public is to be accused of breaking a law designed to catch spies. But that's what you get when the government is so hell bent on spying on everyone and not letting anyone know about it.

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We recently had a video showing then Senator Joe Biden, from seven years ago, "debating" the current President Obama on government surveillance. I hadn't seen this until now, but someone else has put together a much better video showing Presidential candidate Obama in 2008 vs. President Obama in 2013. The difference is stark. Not only is there a massive difference in what's being said, but also in how it's being said. The Candidate Obama spoke clearly, directly strongly and without equivocation about protecting civil liberties and not giving up our freedoms. President Obama's speech, on the other hand, sounds weak, vague and unpresidential in comparison. In the first one, he makes these clear, declarative announcements:

This administration puts forth a false choice between the liberties we cherish and the security we provide.

But as President, he says (while rolling his eyes -- the video is incredible):

You can't have 100% security... and then also have 100% privacy and zero inconvenience.... We're, we're going to have to make some choices.

As a candidate:

I will provide our intelligence and law enforcement agencies the tools they need to take out the terrorists without undermining our Constitution and our freedoms. That means no more illegal wiretapping of American citizens. That means no more national security letters to spy on Americans who are not suspected of committing a crime. No more tracking citizens who do no more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. That's not what is necessary to defeat the terrorists.

As President, he talks vaguely about how his team made an "assessment" and that these programs keep people safe, and "in the abstract" people might claim these programs are "Big Brother" but he thinks there's a "balance" to be struck. It's funny how different dictatorial surveillance powers look when you're the guy in charge of them.

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In 2008, now President Obama ran with the following as a key plank in his campaign:

Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled as they have been during the Bush administration. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

None of that has happened. Instead, as we've discussed repeatedly, President Obama has been the most aggressive President ever in attacking whistleblowers and bringing the full weight of the law down on them. In fact, in 2012, rather than promote protecting whistleblowers in his campaign, the campaign bragged about how it cracked down on whistleblowers:

President Obama has done more than any other administration to forcefully pursue and address leaks of classified national security information.... The Obama administration has prosecuted twice as many cases under the Espionage Act as all other administrations combined. Under the President, the Justice Department has prosecuted six cases regarding national security leaks. Before he took office, federal prosecutors had used the Espionage Act in only three cases.

The above paragraph is true -- and we've pointed it out in the past as well -- but we thought it was shameful, not something worth bragging about. Furthermore, since he was elected, President Obama has never praised a single federal employee who was a whistleblower. When asked by a reporter from the Huffington Post for an example of President Obama supporting a whistleblower, the White House refused to respond.

Given all of that, it will come as little surprise to read a piece by reporters Marisa Taylor and Jonathan Landay of McClatchy's Washington Bureau, in which they reveal that the White House has a special attack program to deal with whistleblowers called Insider Threat Program (ITP). And, no, contrary to what the administration has claimed, it's not just about "national security" issues. It goes way beyond that:

President Barack Obama’s unprecedented initiative, known as the Insider Threat Program, is sweeping in its reach. It has received scant public attention even though it extends beyond the U.S. national security bureaucracies to most federal departments and agencies nationwide, including the Peace Corps, the Social Security Administration and the Education and Agriculture departments.

And, as the reporters note, the program may emphasize classified material, but actually goes way beyond that to cover leaks of just about anything. Furthermore, it encourages the ridiculous view that leaks which expose questionable behavior to the public are the same as aiding the enemy.

“Hammer this fact home . . . leaking is tantamount to aiding the enemies of the United States,” says a June 1, 2012, Defense Department strategy for the program that was obtained by McClatchy.

Yes, informing the American public of misdeeds by the US government is considered "aiding the enemies of the United States." The reality, of course, is what they're saying is that they really mean "the current government" when they refer to "the United States," and "the enemies" are the American public.

And, part of the program seems to be to put pressure on anyone to snitch on their colleagues if they suspect potential leakers. Government employees who fail to report colleagues who exhibit "high risk" behaviors may be subject to criminal charges. Basically, snitch on anyone who acts suspiciously, or else... And, of course, it's not just the Defense Department. The Agriculture Department has an online tutorial teaching people how to spot potential whistleblowers, entitled "Treason 101."

As becomes obvious, this massively discourages whistleblowing. It massively discourages anyone raising any alarm about programs that might be out of control, for fear that they might be declared a "high risk" person or even guilty of espionage for trying to blow the whistle. President Obama not only has not supported the "courageous" whistleblowers he praised, he's made it so scary to report any malfeasance that when it eventually does come out, it takes the dramatic form of someone like Edward Snowden, rather than someone willing to go through all the "official channels." It's a complete failure and does little to promote good government.

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Most people in the US still associate government use of drones with far away places. But they might want to start paying more attention to what's happening over their own heads. The FBI has now admitted that it uses drones for surveillance purposes domestically. Though FBI director Robert Mueller said that it was done in a "very, very minimal way, very seldom," this is still the first admission that it has happened. Mueller seemed open to having Congress legislate how it can use drones. Oddly, members of Congress who seem unconcerned about the NSA's mass dragnet of information, are apparently concerned about domestic drone use:

Dianne Feinstein, who is also chair of the Senate intelligence committee, said the issue of drones worried her far more than telephone and internet surveillance, which she believes are subject to sufficient legal oversight.

I would argue that both are worrying, in large part because the use of both have been secret to the American public until recent revelations. At the very least, these kinds of surveillance deserve a very public debate about whether or not they are appropriate.

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This is the (currently $99 for a limited time) Intoxicated watch from TokyoFlash. It has a functional breathalyzer built in so you know how crunk you are. The unit reads blood alcohol content in 0.02% increments from 0 to 0.20%. For reference, 0.08% is the typical legal driving limit. The watch's face glows green when you're sober, yellow after blowing between 0.41% - 0.60%, red above that, and would explode if I ever got my lips close to the thing. Hit the jump for several more shots and a video demo.

This is a series of Disney movie covers reimagined by the folks at TheFW with more accurate titles. They're pretty decent, but feel free to make up different ones or titles for cartoons they didn't include. Stuff like, 'Bambi: Thanks, Now I'm an Orphan' and 'Alice Takes Two Of Everything In The Medicine Cabinet'. Then we'll all meet up at the bar for happy hour and discuss our favorites. Jk jk, but we will get drunk and throw darts at each other's feet. "Aaaah, toe darts." So fun, right? Hit the jump for eight more. Thanks to PYY, who always thought Peter Pan should have been called Neverland: You'll Want to Live There.