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Cryptography Gilmore response to NSA mathematician's "make rules for NSA" appeal John Gilmore gnu at In his Big Data argument, NSA analyst Roger Barkan carefully skips over the question of what rules there should be for government *collecting* big data, claiming that "what matters" are the rules for how the data is used, *after* assuming that it will be collected.

Governments seldom lose powers; they work to grow their powers, to loosen the rules that govern what they can do. NSA's metadata database has fewer restrictions today than it did when it was collected, all carefully "legal" and vetted by a unaccountable bureacracy that has its own best interests at heart. My own Senator Feinstein claims from her "oversight" post that whatever's good for NSA is good for America; my Congresswoman Pelosi worked hard to defeat the bill that would have stopped the NSA phone metadata program in its tracks; and both of them run political machines that have made them "lifetime" congresspeople, no matter how out-of-step they are with their constituents. NSA and these overseers conspired to keep the whole thing secret, not to avoid "tipping off the terrorists" who already knew NSA was lawless, but to avoid the public backlash that would reduce their powers and maybe even reverse a decade of hugely growing secret budgets.

Having watched the Drug War over the last 50 years, NSA for 30 years, and TSA/DHS over the last decade, I have zero faith that NSA can collect intimite data about every person in America and on the planet, and then never use that data for any purpose that is counter to the interest of the people surveilled. There will always be "emergencies", always "crises", always "evildoers", always "opportunities", that would be relieved "if we could just do X that wasn't allowed until now". So what if general warrants are explicitly forbidden? And if searching people without cause is prohibited? We could catch two alleged terrorists -- or a few thousand people with sexual images -- or 750,000 pot smokers -- or 400,000 hard-working Mexican migrants -- every year, if we just use tricky legalisms to ignore those pesky rules. So the government does ignore them. Will you or your loved ones fall into the next witchhunt? Our largest city was just found guilty of forcibly stopping and physically searching hundreds of thousands of black and latino people without cause for a decade -- a racist program defended both before and after the verdict by the Mayor, the Police Commission, the City Council, and state legislators. NSA has secretly been doing warrantless, suspicionless, non-physical searches on every American with a phone for a decade, all using secret gerrymandered catch-22 loopholes in the published constitution and laws, defended before and after by the President, the Congress and all the courts. Make rules for NSA? We already have published rules for NSA and it doesn't follow them today!

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So Mr Barkan moves on to why NSA would never work against the citizens. The US imprisons more people than any country on earth, and murders far more than most, but it's all OK because those poor, overworked, rule-bound government employees who are doing it are "defending freedom". Bullshit they are! Somehow scores of countries have found freedom without descending to this level of lawlessness and repression. NSA cannot operate outside of this context; rules that might work in a hypothetical honest and free government, will not work in the corrupt and lawless government that we have in the United States.

NSA employees are accountable for following the rules, Mr. Barkan? Don't make me laugh. There's a word for it: impunity. EFF has diligently pursued NSA in court for most of a decade, and has still gotten no court to even consider the question "is what NSA did legal?" Other agencies like DoJ and HHS regularly retain big powers and budgets by officially lying about whether marijuana has any medical uses, rather than following the statutes, despite millions of Americans who use it on the advice of their doctor. None of these officials lose their jobs. Find me a senior federal official anywhere who has ever lost their job over major malfeasance like wiretapping, torture, kidnapping, indefinite imprisonment, assassination, or malicious use of power -- let alone been prosecuted or imprisoned for it. Innocent citizens go to prison all the time, from neighborhood blacks to medical marijuana gardeners to Tommy Chong and Martha Stewart -- high officials never.

Re Big Data: I have never seen data that could be abused by someone who didn't have a copy of it. My first line of defense of privacy is to deny copies of that data to those who would collect it and later use it against me. This is exactly the policy that NSA supposedly has to follow, according to the published laws and Executive Orders: to prevent abuses against Americans, don't collect against Americans. It's a good first step. NSA is not following that policy.

Where Big Data collection is voluntary, I do not volunteer, thus I don't use Facebook, Google, etc. When collection is involuntary, like with NSA's Big Data, I work to limit their power, both to collect, and to use; and then I don't believe they will follow the rules anyway, because of all the historical evidence. So I arrange my life to not leave a big data trail: I don't use ATMs, I pay with cash, don't carry identification, don't use Apple or Google or Microsoft products, etc.

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Your government will not make a big announcement when it has become a police state. So if you're a patriot, you'd better practice now: how to avoid stupid mistakes that would let a police state catch you when telling the truth to your fellow citizens becomes a crime -- like it did for Mr. Snowden, Ms. Manning, Mr. Ellsberg, Mr. Nacchio, Mr. Assange, and Ms. Mayer (who claims she's been dragged silently kicking and screaming to spy on her customers rather than be prosecuted for telling them the truth). NSA and its Big Data will not be defending you when the secret police come to bust you for publishing secrets. NSA will be on the cops' and prosecutors' side. They have recently filed legal memos declaring that they don't have to help the defense side in any criminal trials, even when NSA has exculpatory data, and even when NSA provided wiretapped Big Data that led the prosecutors to you. Defending the citizens from the excesses of government isn't their job. Defending their turf, their budget, and their powers is their job.

John Gilmore