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Incitement is the New Terrorism
You can only make up your own definition of “incitement” in the movies and at presidential impeachment trials. Otherwise the actual law is going to have to do.
The picture is becoming clearer now: 1/6 will be sold to frightened Americans as a new 9/11, the prime mover for a whole new range of “crimes.” Incitement will become this generation’s version of “material support to terrorism,” meaning the complex legal definition will be massaged in the name of safety so that it will become a not-real crime based on the flexibility of a word that will mean whatever the Dems/MSM/FBI want it to mean in a particular scenario.
So the kid in his bedroom chatting online will be talking to a Fed pretending to be a white supremacist instead of pretending to be ISIS. The kid’s arrest for incitement (those social media messages supposedly about white supremacy) will be played across the news and, like post-9/11, add fuel to the fires calling for more censorship, more surveillance, more arrests. It is literally the exact playbook from 2001.
Only better. The upgrade to the old playbook is that incitement scales well. So instead of just being pointed at naive kids online, it can be a death ray aimed at a conservative writer, a Congressperson, anyone with a platform. It is a way to eliminate an opinion, take out a rival, even impeach a president. That is why incitement is not aimed at stopping violence but alongside big tech censorship, a tool aimed at thought, at unpopular ideologies, a tool to crush free speech. All in the name of preserving democracy.
What stands in the way is current law, which following the evolution of free speech over the decades, has created increasingly specifics test on when speech becomes such a danger it must be stopped. And there’s a lot more to it than just that old bit about not being allowed to shout fire in a crowded theatre.From its earliest days concerns existed about the interplay between the 1A and the ability of speech to incite violence to the point where words should be censored or criminalized. It sounds easy to sort out, until you consider almost any political viewpoint, passionately expressed, has the potential to incite. But a democracy can’t exactly lock up everyone who says aloud “abortion is murder” or accuses the president of murdering young boys sent into an unwanted war. Speech which inspires, motivates, stirs up the blood is not incitement, and in fact is an important part of a rugged democracy. Can every speaker be held responsible for what people who hear him talk do later? A finer line was needed.The Fire! quote from the Supreme Court decision in Schenck v. United States is often cited as justification for limiting free speech. Justice Oliver Wendell Holmes wrote “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”Words in these decisions have hyper-specific legal meanings, often defined through multiple cases, which is why simply Googling a term and passing judgment on its vernacular via Twitter usually is wrong. The Fire! line is actually a kind of inaccurate shorthand. The full decision says the First Amendment doesn’t protect speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately.
But Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer opposing WWI to stop free speech, not protect it. The case was eventually overturned, and Holmes’ statement is better understood not as a 21st century test but to simply mean that while the First Amendment is not absolute, restrictions on speech should be narrow and limited. It would be for the later case of Brandenburg v. Ohio to refine the modern standard for restricting speech.
Brandenburg v. Ohio (Clarence Brandenburg was an Ohio KKK leader who used the N-word with malice) precludes speech from being sanctioned as incitement to violence unless 1) the speech explicitly or implicitly encouraged the use of violence or lawless action; 2) the speaker intends their speech will result in the use of violence or lawless action, and 3) the imminent use of violence or lawless action is the likely result of the speech, a more specific definition than in Schenck. Brandenburg is the Supreme Court’s final statement to date on what government may do about speech that seeks to incite others to lawless action. It was intended to resolve the debate between those who urge greater control of speech and those who favor as much speech as possible before relying on the marketplace of ideas to sort things out.
Intent as included in Brandenburg is purposely hard to prove. A hostile reaction of a crowd does not automatically transform protected speech into incitement. Listeners’ reaction to speech is thus not alone a basis for regulation, or for taking an enforcement action against a speaker. The speaker had to clearly want to, and succeed in, causing some specific violent act. The reliance on intent exposes the danger of the 1A not applying to corporate censors. Twitter suppressed the speech of 70,000 users simply for retweeting material with “the potential to lead to offline harm” under its Orwellian named Civic Integrity Policy, no intent required. They made up their own version of the law.
The law is similar for (incitement to) sedition, seeking to overthrow the U.S. government by force. It is intimately tied to the concept of free speech in that any true attempt at overthrow, as well as any legitimate criticism of the government, will include persuasion and stirring up of crowds. The line between criticizing the government and organizing for it to be overthrown is a critical juncture in a democracy. Current law requires the government prove someone conspired to use force. Simply advocating broadly for the use of violence is not the same thing as violence and in most cases is protected as free speech. For example, suggesting the need for revolution “by any means necessary” is unlikely to be seen as conspiracy to overthrow the government by force. But actively planning such an action (distributing guns, working out the logistics, actively opposing lawful authority, etc.) could be considered sedition.
A 1982 case, Claiborne v. NAACP, not only made clear the Court’s strict standards on blocking speech for incitement but also how such suppression can strike any view, not just conservative ones. In the 1982 Claiborne v. NAACP the Court ruled NAACP civil rights leaders were not responsible for a crowd which, after hearing them speak, burned down a white man’s hardware store. The state of Mississippi had wanted to charge the NAACP leaders with incitement on the grounds their speeches urging a boycott of white-owned stores incited their followers to burn down a store. The state’s argument was that the NAACP leaders knew their inflammatory rhetoric would drive the crowd to violence.
The Supreme Court rejected that argument, explaining that free speech will die if people are held responsible not for their own violent acts but for those committed by others who heard them speak and were motivated in the name of that cause. The Court wrote “there is no evidence — apart from the speeches themselves that [the NAACP leader] authorized, ratified, or directly threatened acts of violence… To impose liability without a finding that the NAACP authorized — either actually or apparently — or ratified unlawful conduct would impermissibly burden the rights of political association that are protected by the First Amendment.” They concluded instead the NAACP “through exercise of their First Amendment rights of speech, assembly, association, and petition, rather than through riot or revolution, sought to bring about political, social, and economic change.”
All of this may soon change, however. Joe Biden and the Democratic Congress are actively considering new laws (“Patriot Act 2.0”) against domestic terrorism which will likely draw from and enlarge the current definitions of incitement and sedition, with the Trump impeachment as their philosophical touchstone. The new laws may seek to define beliefs such as “whites are a superior race” not as bad science or an unsavory opinion but as an actual threat, an illegal thought. Proposals include prohibiting people with such beliefs from joining the military or law enforcement.
The groundwork is already in place. Don’t forget Biden often claims credit for writing the original Patriot Act. The MSM has been priming Americans to believe they have too many rights for their own safety. The NYT is opening soliciting stories about “right wing extremism” in the military.
It is necessary to say it again. America at present, on paper at least, legally holds apart from some very narrow exceptions free speech exists independent of the content of that speech. This is one of the most fundamental precepts of our democracy. There is no need for protection for things people agree with, things that are not challenging or debatable or offensive. Free speech is not needed to discuss the weather or sports. The true tests for a democracy come at the edges, not in the middle.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
NSA Spying Costs U.S. Companies Up To $180 Billion in Lost Overseas Business
The German government will end its contract with Verizon. Brazil dumped Boeing for Swedish company Saab to replace its fighter jets. Sources told Bloomberg News “The NSA problem ruined it” for the U.S. defense contractor.
Unfettered NSA spying has cost U.S. companies up to $180 billion in lost overseas business. The number is expected to grow.
Cisco saw a ten percent drop in overseas business. Dropbox and Amazon Cloud Services reported immediate drops in their sales abroad. Qualcomm, IBM, Microsoft, and HP all reported declines in sales in China due to NSA spying. The total costs to U.S. businesses could reach as high as $180 billion.
ServInt Corporation, a Virginia-based company providing website hosting services, has seen a 30 percent decline in foreign customers since the NSA leaks began in June 2013, said Christian Dawson, its chief operating officer.
Big Losses for U.S. Tech Firms
According to a new report by the nonprofit New America Foundation, in total NSA spying could slow the growth of the U.S. tech industry by as much as four percent in the short run, though the massive hit to American credibility could have long-range repercussions that are hard to estimate at present. The NSA spying is leading many nations to develop their own, indigenous capabilities that suggest fewer opportunities for American tech firms into the future. For example, Brazil and India are planning domestic IT companies that will keep their data centers within national boundaries and thus hopefully out of NSA’s reach. Greece, Brunei, and Vietnam have announced similar plans.
The point really stings: cloud storage services are already a $150 billion industry, a number expected only to grow. The question now is how much of that growth for American companies will be siphoned off by foreign competition because of the NSA’s wholesale spying. One-third of Canadian businesses said in a survey they were moving their data outside the U.S. as a result of NSA spying. Artmotion, a Swiss web hosting provider reported that within a month after the first revelations of NSA spying, business jumped 45 percent.
You’re an American Company? No, Thanks
“We’re not an American company” may prove to be a decisive sales point, and the NSA activities a persuasive marketing tool. The point is not theoretical. “Ties revealed between foreign intelligence agencies and firms in the wake of the U.S. National Security Agency affair show that the German government needs a very high level of security for its critical networks,” Germany’s Interior Ministry said in a statement about the canceled Verizon contract.
While the NSA likely is even now working on ways to break into foreign data centers, the immediate concern for many governments abroad is the “sharing” agreements NSA enjoys with American firms. As revealed by Edward Snowden, most American tech companies are required by the U.S. government to make themselves open to the NSA, either by directly sharing data (for example, Verizon) prepackaged to NSA needs, or by allowing the NSA to dictate what technological back doors will be built into the actual hardware (Cisco.) Either way, in the minds of many foreign governments, purchasing goods or services from an American company is the equivalent of exposing by default all data that passes through those goods or services to the American government.
“I can’t imagine foreign buyers trusting American products,” said security expert Bruce Schneier. “We have to assume companies have been co-opted, wittingly or unwittingly. If you were a company in Sweden, are you really going to want to buy American products?”
Corrupting the Entire Internet
The New America report also explains that the NSA has fundamentally attacked the basic security of the Internet by undermining essential encryption tools and standards, inserting backdoors into widely-used computer hardware and software products, stockpiling vulnerabilities (“zero day defects”) in commercial software rather than making sure those security flaws get fixed, dropping spyware into routers around the world, impersonating popular sites like Facebook and LinkedIn to gather data, and hacking into Google and Yahoo’s backbone data links to harvest emails, address books and more.
This all in spite of one of the core missions of the NSA being to protect America’s cybersecurity.
A Wake Up Call?
The cynical might say that with the loss of business revenues abroad, the American government finally has a reason to reign in the NSA, at least overseas. Tech companies, after all, are traditionally big political donors, especially to the Democrats and thus hold some clout. Domestically, there is little financial incentive for less spying; remember, the only person on earth Obama has personally and specifically assured is not being monitored via her cell phone is a foreigner, German Chancellor Angela Merkel. No, sorry, Americans are still fair game.
Perhaps the worst news for American tech is hardest to quantify. “It’s not possible to put an exact dollar figure on the cost of lost business for U.S. companies as a result of the NSA revelations,” said Chris Hopfensperger, policy director for BSA/The Software Alliance, a Washington-based trade association. “If a customer goes directly to a non-U.S provider for something, you never know that you didn’t get the call.”
Funny, because while the American company may indeed never know they didn’t get the call, the NSA might. Who could have thought the wake up call to U.S. firms would be so ironic?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Dissecting Obama’s Proposed NSA Reforms
So, after nine months of ignoring the Snowden revelations, downplaying the the Snowden revelations, not telling the truth about the Snowden revelations, insulting the Snowden revelations, sending members of his administration to lie to Congress about the Snowden revelations and claiming everything the NSA does is legal, righteous and necessary to keep the barbarians outside the gates, Obama is coincidentally now proposing some “reforms” without acknowledging the Snowden revelations. Let’s have a look based on what we know right now.
Starting with a Question
Right away we have a question about these proposals. Almost everything (we know) the NSA has been doing to us was imposed either by Executive Orders (Bush and Obama) not subject to Congressional review or approval, or done under wide, almost farcical interpretations of the Patriot Act (Section 215 especially) not subject to judicial review, or blessed in secret by the secret Foreign Intelligence Surveillance Court (FISA) court not subject to any review. So the question of why Obama’s proposed reforms are being sent to Congress for a vote looms large.
Why doesn’t the president just pull back what he and his predecessor rammed forward? Well, of course we know the answer: politics. If Congress approves, then the president can say that the task is done, the Constitution restored, let’s look forward again and not backward. If Congress does not vote for the reforms or changes them, well, anything from there forward is their fault. Neat. You’ll recall Obama played the same trick, albeit in a somewhat kludgy way, trying to throw the decision to bomb Syria into Congress’ fetid lap last September.
We also have a handy delay built into the proposal. The current spy programs technically expire March 28, but Obama is asking that good old Foreign Intelligence Surveillance Court to renew the program as it exists for at least one more 90-day cycle. So while the reforms are needed according to the president, there’s no real hurry and the NSA can keep on spying on us at least into the summer. With some irony, that additional 90 days brings us quite close to the anniversary of Snowden’s revelations last June.
The Reforms Proposed
Reform 1: The NSA, proposes Obama, would end its systematic collection of data about Americans’ calling habits. Well, sort of. First we all just have to trust that what the NSA has been and would have continued to do in secret if Snowden had slept in will just stop. There’s a whopper of a maybe, especially given that these changes come only after the whole evil mess hit the news. Better yet, just because the NSA may not collect data, someone else will, because…
Reform 2: The bulk records would stay in the hands of the phone companies, which would not be required to retain the data for any longer than they normally would. So the data still exists, just reshelved. Most phone companies hold such data anyway for 18 months, plenty of time for some leisurely snooping. And just because the phone companies are not required to hold the data longer, that does not mean some government agency which controls their contracts, licenses, technology and all that will not suggest they hang on to it longer. Hey Verizon, just buy a bigger hard drive, they’re cheap these days. Slap a non-disclosure type order on the phone companies and we’ll never know what they keep for how long. Again, this reform requires trusting organizations that lied to us consistently since 2001 until caught red-handed.
Reform 3: The NSA could only obtain specific records with permission from a judge. I think we all can see through this one like it was as sheer as a Miley Cyrus costume. Likely enter the handy FISA court again, which has a long record of rubber stamping government requests, no doubt in no small part because only the government is allowed to speak to the court (in its entire history, the FISA court denied just 11 of the more than 33,900 surveillance requests put to it.)
In addition, it is unclear what level of detail and introspection the court could apply to what no doubt will be hundreds of thousands of new requests, most of which will no doubt be marked as urgent in response to the endless parade of “imminent threats” only the NSA sees.
Sub-Reform: Obama will ask Congress to convene a panel of public advocates to represent “consumers” before the FISA court. Are Citizens now just “consumers” as far as the government is concerned?
The members of this panel, to be drawn from civil liberties, technology and privacy advocates, will be given security clearances and other benefits. Their job will be to represent Americans, but only when the FISA court faces “novel issues of law.” Left open is who these people will be, who will pay them, who will choose them, and how aggressive the government will be in using the security clearance process to keep true advocates away from the court. Who and how “novel issues of law” will be determined is another question. What rights these advocates will have to see government data is unclear. And of course everything will be secret.
Back to the court orders themselves. These court orders are lined up to be another forward-looking thing: once a phone company starts providing call data on an individual, they would be required, on a continuing basis, to feed the NSA data about any new calls placed or received after the order is received. For how long? Not mentioned in the proposal. Better classify that time period or you’ll alert the terrorists when they can start talking freely again. The court orders would also automatically give the NSA related records for callers up to two phone calls, or “hops,” removed from the number that has come under suspicion. So if they look at your records, they are also allowed to look at the doctor you call and the journalist you call.
Worse yet is the way math works with that two-hop rule. One writer has speculated that if one of those hops includes a popular take-out pizza joint, that hop will automatically link the NSA to a very, very large number of people. Other data suggests a typical two-hops set of links will pull in over 8,000 people. Reconfigure your two-hops to restart with one of those 8,000 and so forth until the set of permissible monitoring grows geometrically.
What’s Missing
The only category of people Obama has specifically exempted from surveillance is allied foreign leaders. He has not extended any exemptions to American citizens.
The reform proposals seem specific only to bulk phone records collected by the NSA under Section 215 of the Patriot Act. They do not appear to apply to any other collections by the NSA (email, Skype, chat, GPS, texts, and so on and on), or any other federal or state agency, or to any programs in place today that we are not aware of or which may be created in the future, perhaps in response to the reforms.
This omission is significant; The Guardian reports the NSA collects each day more than five million missed-call alerts, for use in contact-chaining analysis (working out someone’s social network from who they contact and when), details of 1.6 million border crossings a day, from network roaming alerts, more than 110,000 names, from electronic business cards, which also included the ability to extract and save images and over 800,000 financial transactions, either through text-to-text payments or linking credit cards to phone users. NSA also extracted geolocation data from more than 76,000 text messages a day, including from “requests by people for route info” and “setting up meetings.” Other travel information was obtained from itinerary texts sent by travel companies, even including cancellations and delays to travel plans.
The Obama reforms do not even mention surveillance of Internet communications internationally under Section 702 of the FISA Amendments Act; and surveillance of communications overseas under Executive Order 12333.
The reforms do not mention pulling back the NSA’s ongoing efforts to weaken overall internet security, such a demanding companies provide them with backdoors to bypass encryption.
The reforms leave the door open. Obama’s proposal includes a provision asking Congress to validate that Section 215 of the Patriot Act may in the future be legitimately interpreted as allowing bulk data collection of telephone data.
The reforms leave in place far too many secret court actions and loopholes.
The reforms will be changed in the Congressional process and are likely to be further weakened by frightened representatives terrified of being blamed for the next act of terror (or by fear of losing votes for appearing “weak.”)
The reforms, even if enacted exactly as proposed or even slightly strengthened, only alter the security state in some minor and superficial ways. Our Fourth Amendment rights against unwarranted search and seizure remain jackbooted.
Some might even say the reforms are not reforms at all, but just some pretty words like “Hope” and “Change” that a smart politician might toss off to appear to be listening to his People without doing anything of substance.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Judge Rules Part of Patriot Act Unconstitutional
In significant victory for reality (and freedom), two provisions of the so-called “Patriot Act” were ruled unconstitutional because they allow search warrants to be issued without a showing of probable cause.U.S. District Judge Ann Aiken ruled that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, “now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.”
By asking her to dismiss the lawsuit, the judge said, the U.S. attorney general’s office was “asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. This court declines to do so.”
Here’s the money quote from the judge:
“For over 200 years, this Nation has adhered to the rule of law — with unparalleled success. A shift to a Nation based on extra-constitutional authority is prohibited, as well as ill-advised.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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