Scanlyze

To the NSA: Preserving the Open Internet and the Constitutional Republic of the United States of America

In 2014, I was invited by the Harvard Berkman Center to a closed seminar titled, “Intelligence Gathering and the Unowned Internet.”

Here’s my RSVP acknowledgement:

Thank you for your RSVP to the event, “Intelligence Gathering and the Unowned Internet,” taking place tomorrow (4/8) at 12:00PM at Harvard Law School, Wasserstein Hall, Millstein West A (Second Floor). The panel will feature Berkman Professor of Entrepreneurial Legal Studies Yochai Benkler, Director of Compliance at the National Security Agency John Delong, Director of the NSA/CSS Commercial Solutions Center Anne Neuberger, Berkman Fellow Bruce Schneier, and Professor of Law, Government, and Computer Science Jonathan Zittrain, moderated by WilmerHale Professor of Intellectual Property Law Terry Fisher.

For more information about the event, visit http://cyber.law.harvard.edu/events/2014/04/unownedinternet.

This luncheon will be brown bag / bring your own. We encourage you to arrive a few minutes early to secure a seat. Please note that this event is at capacity and accruing a wait list — if you find yourself unable to attend, please let me know ASAP.

We look forward to seeing you.

Best,
Dana

When I attended I found it was standing room only. I was the only one who brought a statement, which I distributed. Several people came up behind me and said things like, you are not alone, and we are doing what we can. At the end I hand delivered the statement below to several participants including Anne Neuberger and John Delong. We had a cordial discussion. I told them they’ve been living in a bubble and going to closed seminars with hand-picked attendees from the highest levels of academia and the IC wasn’t enough to get them out where they could hear the people. Anne said maybe we have or to that effect.

MEMO
To: The NSA and the Intelligence Community
From: Henry Edward Hardy
RE: Preserving the Open Internet and the Constitutional Republic of the United States of America

2014-04-08

Summary
Recommendations:

1. Re-establish the firewall between foreign intelligence and domestic law enforcement.
2. Require a specific, not general, warrant with probable cause for any surveillance of anyone in the world. The idea that you can segregate US persons from others as far as surveillance is a legal fiction, and in practice, next to impossible.
3. Ban and retroactively abolish all general warrants and bills of attainder. Retroactively rescind, and ban the future use of National Security Letters.
4. Disallow active duty military personnel from working for NSA.
5. Remove CSS from NSA.
6. Abolish FISA and the FISA court.
7. Abolish the Communications Assistance to Law Enforcement Act.
8. Repeal the USAPATRIOT Act and the FISA Act.
9. Re-establish posse comitatus.
10. Re-establish habeus corpus.
11. Eliminate the pen register exemption from the fourth amendment which has been used to justify the coillection of so-called metadata.
12. Restore and strengthen the Electronic Communications Privacy Act.
13. Strengthen whistleblower protection for US Government employees, and extend this protection to contractors as well.
14. Abolish the UK/USA Pact, the so-called “Five Eyes.” Disallow sharing of foreign intelligence with any other nation or entity which cannot be held accountable to the US Constitution.
15. Hold NSA employees and contractors and the FISA court judges legally accountable.
—
main text follows:

The new aristocracy was made up for the most part of bureaucrats, scientists, technicians, trade-union organizers, publicity experts, sociologists, teachers, journalists, and professional politicians. These people, whose origins lay in the salaried middle class and the upper grades of the working class, had been shaped and brought together by the barren world of monopoly industry and centralized government. As compared with their opposite numbers in past ages, they were less avaricious, less tempted by luxury, hungrier for pure power, and, above all, more conscious of what they were doing and more intent on crushing opposition. This last difference was cardinal. By comparison with that existing today, all the tyrannies of the past were half-hearted and inefficient. The ruling groups were always infected to some extent by liberal ideas, and were content to leave loose ends everywhere, to regard only the overt act and to be uninterested in what their subjects were thinking. Even the Catholic Church of the Middle Ages was tolerant by modern standards. Part of the reason for this was that in the past no government had the power to keep its citizens under constant surveillance. The invention of print, however, made it easier to manipulate public opinion, and the film and the radio carried the process further. With the development of television, and the technical advance which made it possible to receive and transmit simultaneously on the same instrument, private life came to an end. Every citizen, or at least every citizen important enough to be worth watching, could be kept for twenty-four hours a day under the eyes of the police and in the sound of official propaganda, with all other channels of communication closed. The possibility of enforcing not only complete obedience to the will of the State, but complete uniformity of opinion on all subjects, now existed for the first time.

–George Orwell
1984
1948

My name is Henry Edward Hardy. I am a senior systems administrator at Tufts University, and I am speaking here only for myself and not for my institution or any other group or entity.

I’ve been a system administrator since the days of the ARPAnet. Back then when I started there were only maybe 100 thousand to 200 thousand people on the net, and a few thousand administrators. We were few enough that we could all be identified by our initials. My NIC handle is HEH. We were all together then. Anyone who knew enough to ask, could get an account on dockmaster. I thought you guys were heroes. I thought you kept us safe from tyranny and a godless totalitarian surveillance state.

Suffice it to say you aren’t my heroes anymore. You *are* the totalitarian face of a comprehensive surveillance state which would have put the KGB and Securitate to shame.

We were all together then and we all worked to nurture and protect that which we recognized as so dear, so unique and valuable, the Internet. The greatest achievement of mankind, and the greatest gift of the United States to the world, a vehicle and a venue for cooperation, understanding, learning and creativity. For freedom and liberty guaranteed by anonymity and privacy.

It is a truism to say that “everyone has secrets.” More profoundly, everyone knows something which they would literally do anything to prevent being made known to others. It might be something criminal, but in most cases it is not. It could be knowledge of a family matter, of an affair, or a child whose father isn’t who they think it is. It could be a medical matter, or a sexual fetish. It could be a key, a password to a bank account or a brokerage account. It could be a business matter. In any event, if you and you alone have access to all the world’s secrets, and when there is no public accountability or restraint through the mechanisms of a democratic society, then your power, and the inevitability of its abuse, is unlimited.

System administrators should be your allies. We both want to protect the Internet and keep it safe. In theory anyway. But when we read in the popular press snarky blather such as “I Hunt Sysadmins” then how can we regard you as friends?

Before the United States was founded, the British had a secret court called, “The Star Chamber”. The Star Chamber started by 1398 and was shut down in 1640. One of the motives in establishing the Bill of Rights was to insure there would be no secret Star Chamber-like courts in America. As wikipedia puts it,

The historical abuses of the Star Chamber are considered a primary motivating force behind the protections against compelled self-incrimination embodied in the Fifth Amendment to the United States Constitution.[14] The meaning of “compelled testimony” under the Fifth Amendment – i.e., the conditions under which a defendant is allowed to “plead the Fifth” to avoid self-incrimination – is thus often interpreted via reference to the inquisitorial methods of the Star Chamber.[15]

As the U.S. Supreme Court described it [in Faretta v California], “the Star Chamber has, for centuries, symbolized disregard of basic individual rights.”

Spying on everyone all the time without a specific warrant for which there is probable cause: if that isn’t compelled self-incrimination then I don’t know what is.

The Federal Intelligence Surveillance Court, sometimes called “The FISA Court” is just such an unconstitutional secret Star Chamber. Shut it down now, and repeal and invalidate all of its decisions retroactively.

One of the Abuses of the British which led to the US Revolution was the use of General Warrants. People were not secure in their homes or papers. The British ultimately used this power to quarter British soldiers in the homes of unwilling citizens. The result was a violent revolution, and the writing of a constitution intended to prevent General Warrants from ever being used again.

My advice: stop using General Warrants. They are both Totalitarian and Unconstitutional.

My message to you is: Stop Spying on us.

Follow the Constitutional process. Get a specific warrant based on probable cause and approved by a judge in open court. And use open source methods whenever possible, and surveillance as a last resort.

My recommendations are:

1. Re-establish the firewall between foreign intelligence and domestic law enforcement.
2. Require a specific, not general, warrant with probable cause for any surveillance of anyone in the world. The idea that you can segregate US persons from others as far as surveillance is a legal fiction, and in practice, next to impossible.
3. Ban and retroactively abolish all general warrants and bills of attainder. Retroactively rescind, and ban the future use of National Security Letters.
4. Disallow active duty military personel from working for NSA.
5. Remove CSS from NSA.
6. Abolish FISA and the FISA court.
7. Abolish the Communications Assistance to Law Enforement Act.
8. Repeal the USAPATRIOT Act and the FISA Act.
9. Re-establish posse comitatus.
10. Re-establish habeus corpus.
11. Eliminate the pen register exemption from the fourth amendment which has been used to justify the collection of so-called metadata.
12. Restore and strengthen the Electronic Communications Privacy Act.
13. Strengthen whistleblower protection for US Government employees, and extend this protection to contractors as well.
14. Abolish the UK/USA Pact, the so-called “Five Eyes.” Disallow sharing of foreign intelligence with any other nation or entity which cannot be held accountable to the US Constitution.
15. Hold NSA employees and contractors and the FISA court judges legally accountable.

Sincerely,

Henry Edward Hardy
senior systems administrator
Tufts University
institutional affiliation for identification purposes only
[email elided]

20 October, 2019 Posted by scanlyze | 2014, Anne Neuberger, John Delong, politics, scanlyze, USA | 1984, 2014, Anne Neuberger, Constitution, internet, John Delong, NSA, republic, spyng, surveillance, totalitarianism, United States, USA | Leave a comment