• The 4th Amendment’s logic in history and implementation is place-focused concerned with spaces and further mitigated by reasonableness analysis with respect to spaces
• Identity is not really within the protection
• Roving wiretap could be allowed because it wasn’t space-focused and was politically feasible through fear and statutory enactment
• Exclusionary rule is disappearing, and used to be a concern in the 80s, but now it doesn’t matter since the subpoena blank is the real action
• Power of the government, which used to be limited by the Constitution to protect sanctity of spaces, is now just a matter of a prosecutor saying “Mother, may I?”
• We used to think this mattered, but now it’s remarkable that we don’t think it matters that these protections no longer exist
• Two generations ago, we would have said that liberty was not worth getting a few cents back
• Everybody had porn, but the reason we enjoyed it was because it was in our house and the protection of the 4th Amendment prevented the prosecution of it
• Michael Phelps doesn’t need to be prosecuted in order for the fine to be imposed upon him
• Cloud computing makes it “all the more convenient” and all the more “free” because the organizers will get compensated in some other way
• Some of the reasons why “we wanted this” were not good reasons, and we opened the can of worms
• The Zombie Constitution doesn’t look like it’s going to ride over the hill to save us → it’s living pretty fast, so it might die pretty young
• Can we get it to say that reasonableness requires a much more complicated analysis protecting identity and not places? People would laugh about it
• Principles of forgetting in the criminal process may indeed have been too good (too forgiving) if we just couldn’t do the math but we had all the data
• To what degree can we allow all that search to happen all the time after the end of forgetting
• Whenever there’s an “ongoing investigation,” the government doesn’t have to release any data
• We’re going to have to sunset data that will still exist in private hands regardless
• We can at least tell the state that it must continue to forget things (for now) → statutes of limitations, oblivion of data, etc.
• Freedom of Non-Information Act: rules about when forgetting must occur → if it were to start moving through Congress
• There will be an exception for national security purposes (they hate us for our amnesia theory)
• Exception for “ongoing investigations”
• Redacted “forgetting reports”
• Perhaps tie data with publicized religious beliefs for peer derision?
• We’re going to have to play this game and imagine these statutes
• Gray-mailing: you can’t prosecute my client without having to disclose a lot of secrets → the jury will believe whatever we tell them, etc.
• They can use the phone calls they have (even though they won’t be admitted, they still have the information to use against you in other permissible ways)
• Passport/CUID/ATM cards all have RFID and yowl the same number → you are a walking resource howling your personal data all the time
• Actually linking it up is just looking at you on the public street (no warrant necessary because you’re in public)
• We need to privatize the problem by doing things like “disrupting the RFID” → fuck everybody else, we’ll have a little bit of freedom back, but not everybody else can do it
• Power will help people not pay attention
• Email: encryption (PGP → GPG) – uses simple convention on how to operate public key encryption in a simple way that allows transmitted emails and files in an encrypted fashion
• Trivial, not costly, everyone can do it, and everyone else would benefit if the adoption would have been more widespread
• If everybody uses it, domestic surveillance is basically over
• IM: OTR (free) would allow encryption in IM clients
• Voice: VoIP? → cheap, easy, life-changing → can end wiretaps for all practical purposes
• Even the NSA would be wasting their time to try to unencrypt telephone conversations transmitted over VoIP?
• Skype exists because it’s an easy, cost-free service with secret police inside, but if you have end-to-end encryption, there’s no problem no matter what provider you’re using
• Since the Mumbai attacks, politicians are more convinced that users of VoIP? are terrorists unless they allow secret police inside
• The technology is there to implement freedom with end-to-end encryption, but it does require that both ends use it
• People have to want freedom
• Freedom is a network effect → people are lazy and don’t really want to do freedom
• We need a way to get people who don’t want to work for freedom to have it
• Do we force people to be free? Or just teach them to be free?
• This is the problem of virtue in Republics
• Jefferson thought you do this by giving them a farm to make them want it to work and be independent and free
• This is the big problem of founding father political philosophy: republics degenerate into autocracies and democracies, led by dictators or by the mob
• How to instill a sense of virtue in the modern state
• Nobody ever did figure out how to maintain virtue in the state without constant effort of the citizens to keep vigilant → today is a case study of how to lose freedom
• 1984 is read as a routine and doesn’t really scare anybody anymore
• No intellectual dissent…people just went on consuming
• Credit: don’t leave home without cash. Say no to an ATM card with RFID. Say no to the supermarket discount cards that will track every purchase forever.
• Government data sharing with the banks they own → “Know your customer” initiative in 2002
• Enhanced spying on everyone’s economic affairs
• Spitzer withdrawing cash was walking straight into the middle of the surveillance state (wired bank account)
• Most people say “I’m too unimportant, nobody is ever going to care about me.”
• Self-fulfilling prophecy because then if you ever got important, they’d have information on you and you wouldn’t have anything to worry about
• It’s gotten to the point where being in favor of freedom is inferred as having something to hide
• Because we allowed normal to be taken over by the other fellow rather than freedom being the default
• Compulsory nakedness would be an improvement if it applied to everyone equally (like the CEOs), but it’s not a long-term strategic goal to laud
• Schmidt: gets $1 in salary but an expense of $500k for personal security (like the head of most centralized intelligence agencies)
• 10 cases with evidence obtained through OnStar? remotely turned on (sold as a feature of course)
• No free software so you don’t know what it’s doing
• Cellphone: we are going to have to really get rid of it as such → there is an effort to replace the internet (and freedom) with controlled networks
• See spectrum allocation
• Cellphones are the platform for listening to you. The one you wear closer to your body than anything else.
• First and last object in the story of how you constitute your identity and you have no idea what it does, and it has gotten very sophisticated without knowing anything about what was going on insde
• People did this because it was sexy/convenient/cute
• Could have been issued to every Czech person or Pole as a mode of surveillance
• “Here, take this. Carry it with you. Put it on the table. Keep it close to you.”
• So dominant that companies selling them are near saturation and don’t know how to sell more
• Nobody ever said, “I want to know what this does. Prove that it doesn’t hurt me.”
• Computers have tons of computing power in them → more than enough power to do everything you might want not done
• You could have your phone calls being recorded at all times, even if you’re the Prime Minister of the state (happened in Greece)
• The networks are designed to undermine freedom and require non-free software phones on their networks → Nokia will free Symbian soon, and then you could have free software…but not on the U.S. networks
• Open wireless routers were cautioned against as enabling kiddie porn and terrorism
• People force people to close open wifi routers under terrorism laws
• Destroy the incipient infrastructure for something that would have been a free telecommunications system
• This is the major payoff.
• We pay the tax to Verizon, who just buys the congressmen → uses the taxes to purchase the legislature (the legislature organizes, collects and keeps the tax)
• What the people want (free communication) is illegal or dangerous
• Tax on newspaper vending machines would have been held unconstitutional, but no problem to tax peoples’ rights to communicate through telecommunications
• We’re relegated to “bad” private remedies with free software
• The infrastructure is there, but people will continue to drag their feet and organizing a constitution without the state
• Anarchist production of civil liberties is tough (much more so than the infrastructure). The network effects are the complexity that anarchism involves
• “The hard part of socialism is that it takes up too many evenings.”
• Rational ignorance allows the other fellow to win
• We’ve reached the tipping point where he already owns enough to solidify the win
• He’s got the War on Terrorism → people who hate your freedom and want to take it away from you require you to give up your freedoms
• All they have to do is upgrade firmware from time to time, since you bought the device and are habituated to the reality
• They’ll even give you a new one in a month or two with “more features”
• You have to show your papers everywhere you go (airplane, etc.)
• Penumbra of the 4th amendment (contraception, porn, drugs, etc.)
• It used to have shade, but now it doesn’t even exist
• Real rights were thought to arise out of the inferences that arose from the rule against unreasonable searching and seizing
• That was then, this is now.

-- RickSchwartz - 16 Feb 2009

<--/commentPlugin-->