Tuesday, 14 January 2014

Professor Geoffrey R Stone concludes NSA activity illegal

Professor Geoffrey R Stone is an important person.
Professor Geoffrey R Stone: Edward H. Levi Distinguished Service Professor of Law
The University of Chicago - The Law School

Professor Stone has at least Top Secret clearance. He hired President Barrack Obama in 1992 to teach Constitutional Law at the University of Chicago. Professor Stone is one of the five trusted wise men to be part of the President's Review Group on Intelligence and Communication Technologies. The recent public report, Liberty and Security in a Changing World, recommends sweeping changes though it does not stop the data collection but rather seeks to improve controls.

During an interview and debate on DemocracyNow, Prof Stone said [about 8:40 into the you-tube clip] words to the effect that there was "absolutely nothing illegal or criminal" about what had been revealed about the NSA programs. He said the claim that they are "unconstitutional and illegal" was "wildly premature."

At the Huffington Post, Prof Stone has concluded a series of articles with the headline and conclusion that, "The NSA's Telephone Metadata Program Is Unconstitutional."

It shows, to me at least, how far legal thinking can get from reality. It would seem obvious to the average Joe that collecting and storing hundreds of millions, if not billions, of meta-data records on citizens every day is obviously against what the founders had in mind when they wrote the Fourth Amendment. Whilst Prof Stone's series of articles leading to the same conclusion are interesting, well reasoned and insightful, it is, to me, a tortured indictment of bottom-up legal reasoning for something so obvious. What is wrong with top-down reasoning starting at the Fourth Amendment itself?

Prof Stone's article's final paragraph fires a warning at those claiming obviousness:
"There are those who maintain that this program is obviously constitutional and those who maintain that it is obviously unconstitutional. They are both wrong. There is nothing "obvious" about this. If this ever gets to the Supreme Court, it will be interesting."
And herein lies the fundamental problem. That which is obviously wrong to a citizen is not obviously wrong to those with smart and strong legal minds such as Professor Stone. It is the world of court-facts versus real-world-facts.

It is nice to see Professor Stone conclude the existing program is unconstitutional:
"In conclusion, then, in my judgment the existing program is unconstitutional. As currently structured, it violates the Fourth Amendment's requirement of "reasonableness." On the other hand, it should be possible for the government to correct the deficiencies in the program in a manner that both preserves its legitimate value and substantially mitigates the risks to privacy that it currently poses."
I guess he is saying that from his perspective an unconstitutional verdict is now less "wildly premature."

Professor Stone is one of the saner voices in the debate and his new "considered" view is a welcome evolution. The US Supreme Court ruling he points to regarding wholesale collection of GPS data is particularly enlightening. The intricate arguments I just can't buy as there should be no need and such arguments smack of post justification and integration with existing laws from an activity that is an obvious abhorrence. Professor Stone's claims that there is nothing obvious about this may be true in the sense of a bottom up legal post-justification but surely not in a principled adherence to the US constitution where the Fourth Amendment rights are fairly succinct and clear.

There is another larger story here pointing to the introspective nature of the legal system, its growing distance from reality and its perversion of purpose where it is becoming more polarised into a system of contract resolution and further away from being a justice system. As a recent victim of court injustice, I'm keenly aware of the lack of justice present in the modern legal system where dollars, patronage and hubris rule over a contract resolution system without proper justice. President Obama needs to consider the equitable course of action here, borrow from the purpose of the Court of Chancery, and thank Mr Edward Snowden properly by giving him the relief of a homecoming without persecution.



PS: Without much thought, I think the controlled collection and warrant-based search procedures may be a good advance but I'm not sure I understand how something that is illegal due to unconstitutionality becomes legal, but the good Professor's articles hint at that reasoning via meandering thoughts on what is "reasonable" and what constitutes a "search." A state sanctioned protected passive collector of data, the Data Guardian, that only lets targeted court warranted searches or algorithms to run without the agency having their own ability to examine or investigate is perhaps possible with careful cryptographic means. Perhaps this is where encrypted local government CCTV footage should also be stored? How can such mass surveillance ever be made safe from not just abuse but future abuse? Collecting mass data just seems wrong. Whilst the ability to hunt down terrorists and criminals retrospectively via their metadata is noble, the debate on balancing security, privacy, anonymity and freedom needs more work. Mass surveillance and storage of data on children is gut wrenchingly evil. Unwitting mass surveillance is a gross violation of the Fourth Amendment. Humanity needs boundaries to protect itself against its own behavioural boundaries.

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