Leaking Furore Par For The Course For Nation That Over-Classifies

America over-classifies information. The designations ‘secret,’ ‘top secret,’ ‘for your eyes only,’ and many others like them are thrown around too freely; too many folders and dossiers receive the dreaded stenciled stamp that indicates their contents may not be perused by the wrong people. The consequences of this bingeing on classification are predictable: all around us, ‘leaks’ and ‘unauthorized disclosures’ take place; many stand accused of dangerous ‘whistleblowing,’ of ‘criminal activity,’ of espionage. When all is secret, violating secrecy restrictions is easy–as is posturing as a protector of ‘secrecy vital to the national interest’; and the penalties for such ‘violations’ can be ratcheted up arbitrarily. (Just ask Chelsea Manning, who is due for early release tomorrow from a three-decade prison sentence–thanks to a presidential commutation.)

In this national context, the furore over the alleged disclosure by Donald Trump of supposedly top-secret information to visiting Russian dignitaries looks ever so precious. Unsurprisingly, no one is quite clear–or can be–about what was leaked, and what its significance was; what we do know, or are offered words of reassurance to that effect is Something Very Very Secret was disclosed. We cannot find out how secret or how important, or indeed, any other relevant details, because those, of course, are a Secret. I do not doubt for a second that Donald Trump is a bumbling incompetent, a buffoon who should not be allowed within a mile of the Oval Office, that his foreign policy blunders may yet be the death of us all. But I’m afraid the mere reporting that Something Very Very Secret is now no longer so fails to move me when it is quite evident from many other contexts that very often, such classification is a case of bureaucratic overkill. Especially when the reassurances that such a disclosure should be considered an actionable problem are forthcoming from the very people who simultaneously over-classify while demanding ever more cover, legal and otherwise, for their activities.

The reaction to Donald Trump’s ‘leaking’ has been predictable: impeachment! These dreams of impeachment, in response to ‘unauthorized disclosures of classified information’ are not just a political fantasy; they also perpetuate a long-running fraud on the American polity–that when the government and the administration decides to get into a tizzy about some supposed ‘violation of secrecy’ it gets the citizenry worked up in response. At that moment, all questioning of the unhealthy layers of classification and secrecy that continue to build up around our rulers’ activities is suspended, and we all chime in with syncopated chorus of outrage: How dare you disclose?

It has been a depressing feature of ‘liberal’ responses to the Trump administration that so many unsavory political alliances have now become increasingly respectable: among them, none will be more surprising than the willingness of so-called ‘liberal and ‘progressive’ factions to find, in the Deep State and its national security agencies, the ones that have done so much to abrogate the civil liberties of so many Americans, their best political allies.

Report On Brooklyn College Teach-In On ‘Web Surveillance And Security’

Yesterday, as part of ‘The Brooklyn College Teach-In & Workshop Series on Resistance to the Trump Agenda,’ I facilitated a teach-in on the topic of ‘web surveillance and security.’ During my session I made note of some of the technical and legal issues that are play in these domains, and how technology and law have conspired to ensure that: a) we live in a regime of constant, pervasive surveillance; b) current legal protections–including the disastrous ‘third-party doctrine‘ and the rubber-stamping of governmental surveillance ‘requests’ by FISA courts–are simply inadequate to safeguard our informational and decisional privacy; c) there is no daylight between the government and large corporations in their use and abuse of our personal information. (I also pointed my audience to James Grimmelmann‘s excellent series of posts on protecting digital privacy, which began the day after Donald Trump was elected and continued right up to inauguration. In that post, Grimmelmann links to ‘self-defense’ resources provided by the Electronic Frontier Foundation and Ars Technica.)

I began my talk by describing how the level of surveillance desired by secret police organizations of the past–like the East German Stasi, for instance–was now available to the NSA, CIA, and FBI, because of social networking systems; our voluntary provision of every detail of our lives to these systems is a spook’s delight. For instance, the photographs we upload to Facebook will, eventually, make their way into the gigantic corpus of learning data used by law enforcement agencies’ facial recognition software.

During the ensuing discussion I remarked that traditional activism directed at increasing privacy protections–or the enacting of ‘self-defense’ measures–should be part of a broader strategy aimed at reversing the so-called ‘asymmetric panopticon‘: citizens need to demand ‘surveillance’ in the other direction, back at government and corporations. For the former, this would mean pushing back against the current classification craze, which sees an increasing number of documents marked ‘Secret’ ‘Top Secret’ or some other risible security level–and which results in absurd sentences being levied on those who, like Chelsea Manning, violate such constraints; for the latter, this entails demanding that corporations offer greater transparency about their data collection, usage, and analysis–and are not able to easily rely on the protection of trade secret law in claiming that these techniques are ‘proprietary.’ This ‘push back,’ of course, relies on changing the nature of the discourse surrounding governmental and corporate secrecy, which is all too often able to offer facile arguments that link secrecy and security or secrecy and business strategy. In many ways, this might be the  most onerous challenge of all; all too many citizens are still persuaded by the ludicrous ‘if you’ve done nothing illegal you’ve got nothing to hide’ and ‘knowing everything about you is essential for us to keep you safe (or sell you goods’ arguments.

Note: After I finished my talk and returned to my office, I received an email from one of the attendees who wrote:

 

The Most Likely Fate Of The Trump Presidency

Should Americans be cheering as the Deep State brings down an American President? Expressed in abstract schema form, this question requires an answer considerably more nuanced than the simple ‘yes’ that results if asking ‘Should Americans be cheering as the Deep State brings down an American President as clownishly, offensively incompetent as Donald Trump? (Today’s rambling press conference was merely the latest in a series of incoherent public speaking performances.) Unelected string-pullers bringing down an elected representative of the people–even if one who jets off to a golfing resort every weekend–sounds like the stuff of dystopian nightmares. Cheer now if you will, and pay later when the Deep State happens to dislike a representative you do like. (My ‘yes’ clashes with the anguished ‘no’ that would emanate from the millions of Trumpistas still hoping their anointed Savior will, any moment now, stop bragging about his election and actually get down to some work.)

That things have come to this is an acute indication of just how far through the looking-glass our polity has gone; the national security apparatus–or at least, its intelligence component–is in open warfare with the executive branch, and it is not clear that this battle will end any time soon. If more dirt emerges on the President, including evidence of illegal activity–such as directing Michael Flynn’s contacts with Russian intelligence–this Presidency would be over. (As before, I do not think Trump will be impeached but I think he could be persuaded to resign by his legal advisers. Easier money, even if not as plentiful, will be waiting on the paranoid conservative talk show and lecture circuit; book deals and bestseller lists are all but guaranteed; our culture is truly degraded, and will make ample room for Trump even if he is exiled from the White House.)

There is another possibility, of course. Which is that the Republican Party, whose ability to plumb the depths is apparently still not clear to those who hope that an investigation will be launched into Trump’s malfeasance, will bring in an experienced operator–perhaps someone like James Baker–to calm the waters, negotiate a truce, and start running day-to-day affairs at the White House. The Republican Party will then have the best of all worlds: they will be able to keep a President in power, the loss of whose loyal ‘base’ cannot be afforded; they will be able to exert some control over policy and legislation; and they will be able to keep the most hostile components of the opposition to Trump at bay. I expect this to be the most likely outcome of the current ‘fubar‘ state of affairs. Such a development will certainly come as some disappointment to those of us who were settling down with the popcorn to see what further entertainment was coming down the pike, but I think most of the other President Pence possibilities that have been floated are extremely unlikely. The Republican Party’s bottom line has always been party above country, and all other outcomes put the country first.

Self-Policing In Response To Pervasive Surveillance

On Thursday night, in the course of conversation with some of my Brooklyn College colleagues, I confessed to having internalized a peculiar sort of ‘chilling effect’ induced by a heightened sensitivity to our modern surveillance state. To wit, I said something along the lines of “I would love to travel to Iran and Pakistan, but I’m a little apprehensive about the increased scrutiny that would result.” When pressed to clarify by my companions, I made some rambling remarks that roughly amounted to the following. Travel to Iran and Pakistan–Islamic nations highly implicated in various foreign policy imbroglios with the US and often accused of supporting terrorism–is highly monitored by national law enforcement and intelligence agencies (the FBI, CIA, NSA); I expected to encounter some uncomfortable moments on my arrival back in the US thanks to questioning by customs and immigration officers (with a first name like mine–which is not Arabic in origin but is in point of fact, a very common and popular name in the Middle East–I would expect nothing less). Moreover, given the data point that my wife is Muslim, I would expect such attention to be heightened (data mining algorithms would establish a ‘networked’ connection between us and given my wife’s own problems when flying, I would expect such a connection to possibly be more ‘suspicious’) ; thereafter, I could expect increased scrutiny every time I traveled (and perhaps in other walks of life, given the extent of data sharing between various governmental agencies).

It is quite possible that all of the above sounds extremely paranoid and misinformed, and my worries a little silly, but I do not think there are no glimmers of truth in there. The technical details are not too wildly off the mark; the increased scrutiny after travel is a common occurrence for many travelers deemed ‘suspicious’ for unknown reasons; and so on. The net result is a curious sort of self-policing on my part: as I look to make travel plans for the future I will, with varying degrees of self-awareness about my motivations, prefer other destinations and locales. I will have allowed myself to be subject to an invisible set of constraints not actually experienced (except indirectly, in part, as in my wife’s experiences when flying.)

This sort of ‘indirect control’ might be pervasive surveillance’s most pernicious effect.

Note: My desire to travel to Iran and Pakistan is grounded in some fairly straightforward desires: Iran is a fascinating and complex country, host to an age-old civilization, with a rich culture and a thriving intellectual and academic scene; Pakistan is of obvious interest to someone born in India, but even more so to someone whose ethnic background is Punjabi, for part of the partitioned Punjab is now in Pakistan (as I noted in an earlier post about my ‘passing for Pakistani,’ “my father’s side of the family hails from a little village–now a middling town–called Dilawar Cheema, now in Pakistan, in Gujranwala District, Tehsil Wazirabad, in the former West Punjab.”)

Apple’s ‘Code Is Speech’ Argument, The DeCSS Case, And Free Software

In its ongoing battle with federal law enforcement agencies over its refusal to unlock the iPhone, Apple has mounted a ‘Code is Speech’ defense arguing that “the First Amendment prohibits the government from compelling Apple to make code.” This has provoked some critical commentary, including an article by Neil Richards, which argues that Apple’s argument is “dangerous.”

Richards alludes to some previous legal wrangling over the legal status of computer code, but does not name names. Here is an excerpt from my book Decoding Liberation: The Promise of Free and Open Source Software (co-authored with Scott Dexter) that makes note of a relevant court decision and offers arguments for treating code as speech protected under the First Amendment. (To fully flesh out these arguments in their appropriate contexts, do read Chapters 4 and 5 of Decoding Liberation. I’d be happy to mail PDFs to anyone interested.) Continue reading

The FBI, Online Brokerages, And The Hiring Of ‘Potheads’

This almost-two-years-old story about the FBI’s claim that it could not find hackers–AKA ‘cybersecurity experts’–to hire because they smoke marijuana (and thus would fail their pre-employment drug tests) reminds me of a story from the days of the Internet gold rush, as demand for programmers, system administrators, and the like meant the instant hiring and satisfaction of salary requests with little regard for the background of the applicant other than their technical credentials.

The background to this story, as described in a previous post, is as follows:

As the summer of 1997 ended, I found myself, within the confines of New York City, a nomad. A break-up with my girlfriend meant I had to find new accommodations, and it had resulted in my moving thrice in three months. Finally I settled on the Lower East Side, renting a room in an apartment still under construction. I was broke; the moving had cost me; I had lost apartment deposits and spent too much money eating out, drinking beer, whiling away my time in bars playing pool. My meager summer employment hadn’t kept pace with my reckless expenditures and I found myself skimping, saving, borrowing money from friends, just to get by and pay rent. Even more problematically, my doctoral oral examinations awaited; I had an ambitious reading list–in philosophy of language, logic, and science–to get through.

As the fall semester began, I found myself caught, willy-nilly, in a form of monastic discipline. I had wasted enough time over the summer; I had to buckle down now. I had two section of Introductory Philosophy to teach, a long list of journal articles to get through, and very little money to spend. So I did what all abstainers do: I enforced a routine. I tried to wake up at the same time everyday, avoided my old haunts, and kept my nose to the wheel.

Well, it worked. I passed my oral exams (I was told I had earned ‘a distinction.’) But I was still broke. I needed work, and would have to take a semester–the coming spring of 1998–off from graduate school. So, I typed up a CV, detailed my previous experience as a C programmer and a UNIX system administrator, and faxed it to a dozen or so head-hunters in New York City. By the end of the day, I had received several call-backs. The next morning, I spoke to one of the agencies, and was directed to an interview with an online brokerage for the position of a UNIX system administrator (to take care of their battery of SUN servers that powered their website.) I interviewed, made my salary demands known, and waited for a call. It soon came, informing me I was hired. But I had to take a drug test first.

I had smoked pot several times over the past summer, but from September onward, I had abstained. You see, folks who smoke marijuana can make reasoned decisions about whether they think indulgence in it may interfere with personal and professional projects of importance. I wanted to concentrate on my teaching and exam preparation; simple abstinence seemed like a good way to facilitate that process.  And now, it seemed my abstinence would also help me pass the drug test my employer wanted me to undertake.

There was one problem though: the drug test was not the usual ‘piss-in-a-bottle’ test; instead it tested hair samples. I found this out on the day I went for the test. Surprised at not being handed a bottle, I dutifully raised my arms for clippings to be taken from my armpits. This did not bode well, for I had learned that traces of marijuana can be found in hair samples for months longer than in urine samples.  A day later, I received a phone call from the Human Resources Department. The conversation went as follows:

Administrative Lady: Mr. Chopra, we want to let you know that you tested positive for marijuana in your drug test.

Me: Oh, really?

Administrative Lady: We would like you to know that at XXX, we have a drug-free workplace.

Me: Uh-huh

Administrative Lady: Can you please come in as soon as possible to fill out your remaining forms?

Me: Sure.

And that was it. I had failed the drug test, but I was still hired. I was a UNIX system administrator; I ‘knew’ Solaris; I was in a possession of a ‘rare’ skill. What were they going to do? Go find another system administrator, back into the madness of trying to find someone qualified, in competition with other brokerages and Wall Street employers? Fat chance. I was in.

Six months later, I quit. I had saved enough money to float my graduate school boat for a while. And I continued to abstain from pot till the day I defended my doctoral thesis, on January 6, 2000. Then, I celebrated.

Oscar López Rivera and the Cabanillas

My essay on the Puerto Rican political prisoner Oscar López Rivera “Oscar López Rivera and the Cabanillas” is out in the Los Angeles Review of Books. Please read and share. Oscar’s case–and the miscarriage of justice at the heart of it–deserves to be known and talked about far more widely than it is now.  I owe many thanks to Fernando Cabanillas and Jan Susler of the People’s Law Office for their help in writing this essay.