[Cryptography] Gilmore response to NSA mathematician's "make rules for NSA" appeal

John Gilmore gnu at toad.com
Tue Sep 17 19:50:38 EDT 2013

Re: http://www.zdnet.com/nsa-cryptanalyst-we-too-are-americans-7000020689/

In his Big Data argument, NSA analyst Roger Barkan carefully
skips over the question of what rules there should be for government
*collecting* big data, claiming that "what matters" are the rules for
how the data is used, *after* assuming that it will be collected.

Governments seldom lose powers; they work to grow their powers, to
loosen the rules that govern what they can do.  NSA's metadata
database has fewer restrictions today than it did when it was
collected, all carefully "legal" and vetted by a unaccountable
bureacracy that has its own best interests at heart.  My own Senator
Feinstein claims from her "oversight" post that whatever's good for
NSA is good for America; my Congresswoman Pelosi worked hard to defeat
the bill that would have stopped the NSA phone metadata program in
its tracks; and both of them run political machines that have made
them "lifetime" congresspeople, no matter how out-of-step they are
with their constituents.  NSA and these overseers conspired to keep
the whole thing secret, not to avoid "tipping off the terrorists" who
already knew NSA was lawless, but to avoid the public backlash that
would reduce their powers and maybe even reverse a decade of hugely
growing secret budgets.

Having watched the Drug War over the last 50 years, NSA for 30 years,
and TSA/DHS over the last decade, I have zero faith that NSA can
collect intimite data about every person in America and on the planet,
and then never use that data for any purpose that is counter to the
interest of the people surveilled.  There will always be
"emergencies", always "crises", always "evildoers", always
"opportunities", that would be relieved "if we could just do X that
wasn't allowed until now".  So what if general warrants are explicitly
forbidden?  And if searching people without cause is prohibited?  We
could catch two alleged terrorists -- or a few thousand people with
sexual images -- or 750,000 pot smokers -- or 400,000 hard-working
Mexican migrants -- every year, if we just use tricky legalisms to
ignore those pesky rules.  So the government does ignore them.  Will
you or your loved ones fall into the next witchhunt?  Our largest city
was just found guilty of forcibly stopping and physically searching
hundreds of thousands of black and latino people without cause for a
decade -- a racist program defended both before and after the verdict
by the Mayor, the Police Commission, the City Council, and state
legislators.  NSA has secretly been doing warrantless, suspicionless,
non-physical searches on every American with a phone for a decade, all
using secret gerrymandered catch-22 loopholes in the published
constitution and laws, defended before and after by the President, the
Congress and all the courts.  Make rules for NSA?  We already have
published rules for NSA and it doesn't follow them today!

So Mr Barkan moves on to why NSA would never work against the
citizens.  The US imprisons more people than any country on earth, and
murders far more than most, but it's all OK because those poor,
overworked, rule-bound government employees who are doing it are
"defending freedom".  Bullshit they are!  Somehow scores of countries
have found freedom without descending to this level of lawlessness and
repression.  NSA cannot operate outside of this context; rules that
might work in a hypothetical honest and free government, will not work
in the corrupt and lawless government that we have in the United

NSA employees are accountable for following the rules, Mr. Barkan?
Don't make me laugh.  There's a word for it: impunity.  EFF has
diligently pursued NSA in court for most of a decade, and has still
gotten no court to even consider the question "is what NSA did legal?"
Other agencies like DoJ and HHS regularly retain big powers and
budgets by officially lying about whether marijuana has any medical
uses, rather than following the statutes, despite millions of
Americans who use it on the advice of their doctor.  None of these
officials lose their jobs.  Find me a senior federal official anywhere
who has ever lost their job over major malfeasance like wiretapping,
torture, kidnapping, indefinite imprisonment, assassination, or
malicious use of power -- let alone been prosecuted or imprisoned for
it.  Innocent citizens go to prison all the time, from neighborhood
blacks to medical marijuana gardeners to Tommy Chong and Martha
Stewart -- high officials never.

Re Big Data: I have never seen data that could be abused by someone
who didn't have a copy of it.  My first line of defense of privacy is
to deny copies of that data to those who would collect it and later
use it against me.  This is exactly the policy that NSA supposedly has
to follow, according to the published laws and Executive Orders: to
prevent abuses against Americans, don't collect against Americans.
It's a good first step.  NSA is not following that policy.

Where Big Data collection is voluntary, I do not volunteer, thus I
don't use Facebook, Google, etc.  When collection is involuntary, like
with NSA's Big Data, I work to limit their power, both to collect, and
to use; and then I don't believe they will follow the rules anyway,
because of all the historical evidence.  So I arrange my life to not
leave a big data trail: I don't use ATMs, I pay with cash, don't carry
identification, don't use Apple or Google or Microsoft products, etc.

Your government will not make a big announcement when it has become a
police state.  So if you're a patriot, you'd better practice now: how
to avoid stupid mistakes that would let a police state catch you when
telling the truth to your fellow citizens becomes a crime -- like it
did for Mr. Snowden, Ms. Manning, Mr. Ellsberg, Mr. Nacchio,
Mr. Assange, and Ms. Mayer (who claims she's been dragged silently
kicking and screaming to spy on her customers rather than be
prosecuted for telling them the truth).  NSA and its Big Data will not
be defending you when the secret police come to bust you for
publishing secrets.  NSA will be on the cops' and prosecutors' side.
They have recently filed legal memos declaring that they don't have to
help the defense side in any criminal trials, even when NSA has
exculpatory data, and even when NSA provided wiretapped Big Data that
led the prosecutors to you.  Defending the citizens from the excesses
of government isn't their job.  Defending their turf, their budget,
and their powers is their job.

	John Gilmore

More information about the cryptography mailing list