The sad truth….

if he wins re-election, time to ramp it up, people!

From Salon:

Why Does Obama get a pass on Civil Liberties?

Let us stipulate, as lawyers like to say, that President Obama has a deplorable record on civil liberties, one that threatens long-term damage to the country’s constitutional culture.

Why, then, has his base of support not been eroded decisively? Why have so many on the left fallen silent, after railing against George W. Bush’s rights violations, as Obama has prolonged and codified most of the same practices? And why have so few on the right, riding a groundswell of resentment toward big government, failed to resent the biggest governmental intrusions into personal privacy since the FBI’s domestic spying during the Cold War?

The facts are not in dispute. While Obama has ordered an end to CIA kidnapping and torture, he has personally approved kill lists containing the names of American citizens to be targeted by drones. While he has tried to move the accused masterminds of 9/11 and others from Guantanamo to civilian courts (only to be blocked by congressional Republicans), he has also embraced military commissions and indefinite detention. He voiced misgivings about a bill subjecting suspected terrorists to military arrest — whether foreigners or Americans, whether in Afghanistan or Alabama — and then signed it into law.

In practically every significant court case, his administration has argued for an expansive encroachment on individual rights, much as the Bush administration did. Obama’s Justice Department has successfully opposed the habeas corpus petitions of Guantanamo prisoners, persuading conservative judges to rule in one case that sketchy, unverified intelligence reports must be presumed correct. This absurdity has now entered case law as an erosion of the venerable right, dating from the Magna Carta, to summon your jailer before an impartial magistrate.

The administration has continued undermining the Fourth Amendment. It argued in the Supreme Court, unsuccessfully, that law enforcement should be free to attach GPS tracking devices to vehicles without showing probable cause and getting warrants. It has vigorously used a tool that Obama denounced in the 2008 campaign: the administrative subpoenas known as National Security Letters, which are issued without warrants to acquire the library, Internet, banking and other records of individuals suspected of nothing at all. His Justice Department has invoked state secrets, as did Bush’s, to deny wrongfully imprisoned and tortured victims the right to sue the government. The administration has sought broad immunity for Secret Service agents and others in law enforcement who arrest people exercising their First Amendment right to speech.

Obama’s solicitor general has just made a catch-22 argument before the Supreme Court that could exempt from constitutional challenge the law that authorizes the interception of Americans’ international communications without probable cause — the Foreign Intelligence Surveillance Act, broadened in 2008 with Obama’s vote as senator. Because the surveillance by the National Security Agency is secret, his administration argues, there is no way for the lawyers, journalists and rights organizations who suspect they are being monitored to prove that they are, in fact, targets of surveillance, and therefore they have no standing to sue.

These acts aren’t deal-breakers for many voters, except among a small number of civil liberties advocates, such as Conor Friedersdorf of The Atlantic, whose blog “Why I Refuse to Vote for Barack Obama” deplored the left’s lack of outrage. Other liberals, seeing a constellation of social and economic issues, don’t want to damage Obama’s re-election chances by speaking out. He’ll probably get the votes of most lawyers for the ACLU, which has criticized him persistently. And his judicial nominees will be more liberal than Mitt Romney’s. So there is no opportunity for principled voting. Without a civil liberties candidate with a chance to win, pragmatic balloting is unavoidable.

A symmetrical silence about Obama’s rights policies afflicts Republicans. They worry that government is too big when it funds programs for the poor but not when it funds wars. It is too big when it regulates business but not when it regulates individual lives. It can decide whom people may marry, restrict women’s control over their pregnancies and evade the Fourth Amendment by invading Americans’ privacy. Only true libertarians seem to care.

But there is more here than hypocrisy. Terrorism remains a threat, as the FBI repeatedly reminds the country with sting operations that lure hapless wannabes into dramatic plots they couldn’t execute without undercover agents. Each arrest stokes the public’s fear. Furthermore, rights violations are largely clandestine and invisible. Their targets are “others,” meaning foreigners, terrorists, common criminals and various people not like “us.”

Ten years after the 9/11 attacks, polling by the AP and the National Opinion Research Center found that those surveyed supported, by 65 to 21 percent, a government policy to read, without warrants, any emails to people inside the U.S. from countries known for terrorism. By 48 to 37 percent, respondents favored warrantless monitoring of U.S. citizens’ Internet searches “to watch for suspicious activities,” not further defined. In other words, I’m willing to give up your rights for my security.

It’s not generally understood that constitutional rights are not divisible, that those denied to others, including suspected terrorists, are also denied to “us.” For example, Ernesto Miranda of the Miranda warning, who secured our right to silence during police interrogation, was not a model citizen. He had a long record and had kidnapped and raped a mentally defective teenager. Yet his right now belongs to us all.

A certain appreciation of constitutional law is required to grasp what has happened under the Bush and Obama administrations, and neither the press nor the school system educates well on these issues. It has been widely noted that global warming went unmentioned in the presidential debates, but hardly anyone has observed that both poverty and civil liberties (and the Supreme Court) were also ignored by the candidates and moderators.

It took a comedian, Jon Stewart, to raise Bush-era surveillance policies with Obama, on The Daily Show on Oct. 18. “We have modified them,” the president said. “Now, they’re not real sexy issues.”

Stewart replied: “You don’t know what I find sexy.”

Number Six

Privacy-*favorable* ISP….?

be still my heart….From Declan McCullagh’s Privacy Inc. CNET column…. Number Six

This Internet provider pledges to put your privacy first. Always.

Nicholas Merrill is planning to revolutionize online privacy with a concept as simple as it is ingenious: a telecommunications provider designed from its inception to shield its customers from surveillance.

Merrill, 39, who previously ran a New York-based Internet provider, told CNET that he’s raising funds to launch a national “non-profit telecommunications provider dedicated to privacy, using ubiquitous encryption” that will sell mobile phone service and, for as little as $20 a month, Internet connectivity.

The ISP would not merely employ every technological means at its disposal, including encryption and limited logging, to protect its customers. It would also — and in practice this is likely more important — challenge government surveillance demands of dubious legality or constitutionality.

A decade of revelations has underlined the intimate relationship between many telecommunications companies and Washington officialdom. Leading providers including AT&T and Verizon handed billions of customer telephone records to the National Security Agency; only Qwest refused to participate. Verizon turned over customer data to the FBI without court orders. An AT&T whistleblower accused the company of illegally opening its network to the NSA, a practice that the U.S. Congress retroactively made legal in 2008.

By contrast, Merrill says his ISP, to be run by a non-profit called the Calyx Institute with for-profit subsidiaries, will put customers first. “Calyx will use all legal and technical means available to protect the privacy and integrity of user data,” he says.

Merrill is in the unique position of being the first ISP exec to fight back against the Patriot Act’s expanded police powers — and win.
Nick Merrill, who once challenged a demand from the FBI for user data, is planning to create the world's first privacy-protective Internet and mobile phone provider.

Nick Merrill says that “we will use all legal and technical means to resist having to hand over information, and aspire to be the partner in the telecommunications industry that ACLU and EFF have always needed but never had.”
(Credit: Sarah Tew/CNET)

In February 2004, the FBI sent Merrill a secret “national security letter” (not an actual court order signed by a judge) asking for confidential information about his customers and forbidding him from disclosing the letter’s existence. He enlisted the ACLU to fight the gag order, and won. A federal judge barred the FBI from invoking that portion of the law, ruling it was “an “unconstitutional prior restraint of speech in violation of the First Amendment.”

Merrill’s identity was kept confidential for years as the litigation continued. In 2007, the Washington Post published his anonymous op-ed which said: “I resent being conscripted as a secret informer for the government,” especially because “I have doubts about the legitimacy of the underlying investigation.” He wasn’t able to discuss his case publicly until 2010.

His recipe for Calyx was inspired by those six years of interminable legal wrangling with the Feds: Take wireless service like that offered by Clear, which began selling 4G WiMAX broadband in 2009. Inject end-to-end encryption for Web browsing. Add e-mail that’s stored in encrypted form, so even Calyx can’t read it after it arrives. Wrap all of this up into an easy-to-use package and sell it for competitive prices, ideally around $20 a month without data caps, though perhaps prepaid for a full year.

“The idea that we are working on is to not be capable of complying” with requests from the FBI for stored e-mail and similar demands, Merrill says.

A 1994 federal law called the Communications Assistance for Law Enforcement Act was highly controversial when it was enacted because it required telecommunications carriers to configure their networks for easy wiretappability by the FBI. But even CALEA says that ISPs “shall not be responsible for decrypting” communications if they don’t possess “the information necessary to decrypt.”

Translation: make sure your customers own their data and only they can decrypt it.

Merrill has formed an advisory board with members including Sascha Meinrath from the New America Foundation; former NSA technical director Brian Snow; and Jacob Appelbaum from the Tor Project.

“I have no doubt that such an organization would be extremely useful,” ACLU deputy legal director Jameel Jaffer wrote in a letter last month. “Our ability to protect individual privacy in the realm of telecommunications depends on the availability of phone companies and ISPs willing to work with us, and unfortunately the number of companies willing to publicly challenge the government is exceedingly small.”

The next step for Merrill is to raise about $2 million and then, if all goes well, launch the service later this year. Right now Calyx is largely self-funded. Thanks to a travel grant from the Ford Foundation, Merrill is heading to the San Francisco Bay Area later this month to meet with venture capitalists and individual angel investors.

“I am getting a lot of stuff for free since everyone I’ve talked to is crazy about the idea,” Merrill says. “I am getting all the back-end software written for free by Riseup using a grant they just got.”

While the intimacy of the relationship between Washington and telecommunications companies varies over time, it’s existed in one form or another for decades. In his 2006 book titled “State of War,” New York Times reporter James Risen wrote: “The NSA has extremely close relationships with both the telecommunications and computer industries, according to several government officials. Only a very few top executives in each corporation are aware of such relationships.”

Louis Tordella, the longest-serving deputy director of the NSA, acknowledged overseeing a project to intercept telegrams in the 1970s. Called Project Shamrock, it relied on the major telegraph companies including Western Union secretly turning over copies of all messages sent to or from the United States.

“All of the big international carriers were involved, but none of ’em ever got a nickel for what they did,” Tordella said before his death in 1996, according to a history written by L. Britt Snider, a Senate aide who became the CIA’s inspector general.

Like the eavesdropping system that President George W. Bush secretly authorized, Project Shamrock had a “watch list” of people whose conversations would be identified and plucked out of the ether by NSA computers. It was initially intended to be used for foreign intelligence purposes, but at its peak, 600 American citizens appeared on the list, including singer Joan Baez, pediatrician Benjamin Spock, actress Jane Fonda and the Rev. Martin Luther King Jr.
Nick Merrill says that "if we were given any orders that were questionable, we wouldn't hesitate to challenge them in court."

Nick Merrill says that “if we were given any orders that were questionable, we wouldn’t hesitate to challenge them in court.”
(Credit: Sarah Tew/CNET)

Even if Calyx encrypts everything, the surveillance arms of the FBI and the bureau’s lesser-known counterparts will still have other legal means to eavesdrop on Americans, of course. Police can remotely install spyware on a suspect’s computer. Or install keyloggers by breaking into a home or office. Or, as the Secret Service outlined at last year’s RSA conference, they can try to guess passwords and conduct physical surveillance.

That prospect doesn’t exactly please the FBI. Last year, CNET was the first to report that the FBI warned Congress about what it dubbed the “Going Dark” problem, meaning when police are thwarted in conducting court-authorized eavesdropping because Internet companies aren’t required to build in back doors in advance, or because the technology doesn’t permit it. FBI general counsel Valerie Caproni said at the time that agents armed with wiretap orders need to be able to conduct surveillance of “Web-based e-mail, social networking sites, and peer-to-peer communications technology.”

But until Congress changes the law, a privacy-first ISP like Calyx will remain perfectly legal.

“It’s a really urgent problem that is crying out for a solution,” Merrill says.

Update 12:05 p.m. PT: This article sparked a lengthy Reddit thread, complete with repeated suggestions that Nick Merrill should turn to Kickstarter to raise money. Merrill told me this morning that Kickstarter “wouldn’t accept Calyx as a campaign because it’s not a physical product, or arts-related.” But he has set up a contribution page, with a $1 million target, on, a self-described crowdfunding platform. “There has been a ton of interest in the idea,” Merrill told me. “Due to popular demand I have decided to try crowd-sourced funding the idea in order to prove that the demand exists.” If he makes the $1 million target, IndieGogo takes a smaller percentage. Internet privacy aficionados, what say you?