Why Civil Liberties Matter - An Open Letter
To The Obama Administration
By David Alexander Sugar
09 October, 2010
Countercurrents.org
"They made us many promises, more than I can remember, but they kept
only one; they promised to take our land, and they did." - Ma¿píya Lúta
In a recent Rolling Stone magazine interview, you spoke of this administrations
commitment to civil rights while simultaneously insulting the intelligence of
those who are concerned with civil liberties. It is this administrations
actual record on civil liberties, a record that is in fact worse than the
preceding one, that is both clearly inexcusable and dangerously
irresponsible.
The civil rights movement that you spoke about, and as we recognize today,
would not have been possible without civil liberties. While laws were clearly
misused to try suppressing that movement, those efforts failed largely because
the United States at the time was institutionally committed to essential core
legal principles that included privacy, the freedom of speech and association,
due process, and the presumption of innocence. Although each of these
fundamental legal principles had been challenged on a reversible basis by the
Bush administration, it is your justice department that has worked tirelessly
to make those temporary transgressions become a permanent and enduring part of
the institutional law of the United States.
Perhaps most people remember your administration's dramatic assertion of the
right to assassinate American citizens abroad on the whim and statement of a
government official alone. This is certainly not by far the only threat to
civil liberties today your administration has engaged in. Other important
actions include efforts by the United States Department of Justice to
explicitly use state secrets to dismiss lawsuits of those seeking redress from
the unlawful practice of rendition and torture at the hands of private
contractors, and to establish state secrets as an institutional protection for
those carrying out unlawful actions on behalf of the United States government
in general, including telecom companies that had facilitated widespread
illegal domestic intercept in the past.
Other actions by this administration make it explicit it wishes to reverse the
institutional practice of presumption of innocence and replace it with
presumption of guilt. One clear example of this is the assertion of the right
of the United States government to automatically blacklist websites merely
"accused" of copyright infringement in some manner, with neither court
oversight nor due process. Related to this is the effort to create a new
copyright treaty entirely in secret (ACTA) that seeks the ability to punish
individuals directly for alleged crimes with no due process recourse. As these
examples illustrates, in a society based on presumption of guilt, one can be
punished for crimes that have not only not been proven, but that do not even
have evidence presented that can be challenged. It is very clear to see, and
history proves, how such tools can be misused to silence or censor independent
and critical sources of speech on the public Internet.
Equally troubling are the recent raids on the homes of domestic dissidents and
peace activists. As already reported by your own justice department, many of
these investigations of domestic dissidents were improperly initiated without
any actual evidence whatsoever, and often using knowingly false statements.
Yet, this fact did not stop the FBI from engaging in "terrorism raids" on peace
activists across the country or afterward asserting "state secret" privilege
when challenged to actually justify these actions.
Perhaps the most disconcerting departure into a society based on the
presumption of guilt is the effort of this administration to seek a new law to
mandate that government backdoors exist in all communication services and
software. This effort wishes to both expand upon and fully institutionalize
the illegal use of domestic surveillance as practiced by the Bush
administration.
Back in the Clinton years, a law was created called CALEA (the Communications
Assistance for Law Enforcement Act). This law required that all telephone
systems sold and deployed by commercial carriers in the United States include
backdoors to enable government intercept of voice communications. While the
United States government and local police only engage in about 1000 lawfully
initiated wiretap investigations nationwide in any given year, this law
mandated the capability to simultaneously spy on millions of people at once be
created. At the time it was "promised" that such widespread abuse would"never"
actually happen. Yet we have learned that as early as the spring of 2001 the
Bush administration had already used presidential directives authorizing
private telecom carriers to use CALEA backdoors to engage in large scale
domestic surveillance, presumably, given the date, entirely for domestic
political purposes. This administration not only refuses to repudiate these
past secret and illegal acts, but both defends and explicitly wishes to re-make
into fully institutionally legal ones.
When we speak of introducing backdoors into communication systems, such
back-doors rarely remain secret and often present themselves to abuse not only
by national governments, but also by private corporations and even individuals.
Such mandates do not make a society more secure, but in fact less. Perhaps
most terrifying is adding backdoors to operating systems such as Microsoft
Windows, already known to be insecure and defective by design, which simply
further increases their vulnerability and the dangers inherent in their
continued use.
This is a very real danger, one that can be lethal. Whether we speak of a
compromised airline alarm system that resulted in an plane crash in Spain, a
battleship rendered dead in the water, or an alarm system failing on an oil rig
in part contributing to a catastrophic oil spill in the Gulf of Mexico,
innocent people are put to great risk by enactment of this policy. While these
accidents resulted in part from the shoddy workmanship of an already poorly
designed operating system being used in inappropriate places, imagine the
further possibilities for deliberate mischief by exploitation of any such
guaranteed and mandated backdoor facility.
In the United States the 4th amendment did not come about simply because it was
impractical to directly spy on everyone on such a large scale. Nor does it end
simply because it may now be technically feasible to do so. Communication
privacy furthermore is essential to the normal functioning of free societies,
whether speaking of whistle-blowers, journalists who have to protect their
sources, human rights and peace activists engaging in legitimate political
dissent, workers engaged in union organizing, or lawyers who must protect the
confidentiality of their privileged communications with clients. Privacy is
ultimately about liberty while surveillance is always about control.
To this end, back in 2006, and at the time in response to the illegitimate
actions of the prior administration, I created a project who's purpose was
explicitly to create and deliver peer-to-peer cryptographically secure
communication software directly to the general public. This software was
licensed as free (as in freedom) software explicitly to facilitate people to
verify that no backdoors are present and to enable them to legally modify and
redistribute the software to others as they see fit. If a new law is created
that tries to legally mandate the inclusion of backdoors in such software, we
will openly refuse to comply.
What is most troubling of all about the expansion of illegal domestic
surveillance is how this will reshape the institutional nature of society. To
fully appreciate the effect of such surveillance on human societies, imagine
being among several hundred million people who wake up each day having to
prove they are not "terrorists", however that may be whimsically defined at the
moment, compounded by the impossible task of doing so without being accorded
the right to face their accusers in summary 'proceedings' or even to be
informed of the alleged 'evidence' produced by whatever arbitrary, secretive
methods such agents of repression use, and where their prosecution is carried
out under the shroud of "state secrets" that all such police states use to
abuse their own citizens. Such is a society who's foundation is built on the
premise of everyone being guilty until proven innocent and where due process
does not exist; a society where the ends justifies the means. It is the
imposition of such a illegitimate society that we choose to openly oppose,
and to do so in this manner.
Thank you for your time and attention,
David Alexander Sugar
Chief Facilitator
GNU Telephony Project
