Monday, May 15, 2006

Monitoring Borders and Boundaries…

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Relying on the government to protect your privacy is like asking a peeping tom to install your window blinds.
--John Perry Barlow
In the spirit of full disclosure, I have spent two decades working in legal compliance related telecommunications recording, call records and other associated information and compliance measures from Wall Street trading floors to E-911 systems across the world.

Being familiar with the field, I find it somewhat remarkable that so many appear to be untroubled by the warrantless wire tapping program and the call records gathering by the NSA. It might be appropriate to spend just a moment or two describing how these things actually work and what they're used for ...more », the regulations and who has access.

First, the recording piece: The FCC has little enough to say about telephone recording—most of the laws that govern it are state laws and revolve around the issue of one or two party consent. Recording is seldom mandated and generally occurs with a centralized system that taps into the main distribution frame of your switch on premise (MDF or IDF if internal) and replicates the voice stream and copies it into a specific system designed for archival and retrieval and tagging with specific data and monitoring capabilities. Many of these systems are tied into carrier's CO switches—those are the big ones telephone companies use to provide service to your office PBX or home. In terms of consent, you either live in a 'one party consent' state meaning as long as one of the two party's consents to the recording, it's legal, or a 'two party consent state' in which case both parties must consent to the recording. Consent can be obtained in one of several ways—a beep tone generated on the line every ten seconds or so, someone asking your permission or informing you it's a recorded line, a prerecorded announcement prior to switching your call through to your party, or the fine print of the contracts you signed with a specific organization you do business with.

In all circumstances 'no party consent'—that is a third party recording the call without either of the two parties of the conversation consenting (absent a warrant) is considered a felony. This is the first part that ought to concern you; the notion of 'dumbing down' the definition of a felony when all that's required not to do that is procurement of a warrant is unnecessary, prone to abuse, virtually impossible to properly oversee and intrusive in ways that ought to be unacceptable to Americans who espouse the benefits of liberty while acting more like a police state. When there is a conflict between what you say and what you do people inevitably believe your actions over your words. It's hard to be the beacon of liberty when you're busy conducting surveillance.

The NSA's collection of call records is slightly less intrusive—but equally if not more alarming. It's alarming for several reasons—the first of which is that neither the warrantless wiretapping nor the collection of call records have proper oversight. That may not sound like much of a problem to you now, until you start to think about the facts that 1) nobody can really tell you that this information is being properly used (that's why we have checks and balances—because we don't place sole authority with the President) 2) that 'lack of oversight' is what traditionally leads to abuse (see the reasons why the FISA court was created in the first place and the conclusion of the reports on Abu Ghraib—lack of proper oversight is one of the conclusions for what went wrong) and 3) those records contain more about you than you think.

Don't believe me? Go back and look up all of your call records from your carrier(s) over the last six months. I just audited mine—a quick look (mere database, stuff, forget the actual data mining that reveals far more) would tell you who I do business with (what companies and people), where I've been and when, where I stay, what airlines I use, where my family lives, where and who my friends are and the nature of my business. That's information I don't want any single person in government or any single agency for that matter deciding they are entitled to without some reasonable check on that kind of authority and inherently intrusive breech of privacy.

There are several reasons for that—having been involved in several investigations of this type (the one I'll use here is the infamous Banker's Trust scandal years ago that made the cover of Business Week which decried the 'rip off' factor traders were building into complex derivative instruments they didn't understand. In the 'war room' set up at that time, I saw federal investigators and regular employees and vendors and all sorts of other people listening to conversations and checking calling patterns. Within 48 hours I could tell you everything there was to know about a particular trader's social life and business life. The fact is that many people had access to that information and used it to satisfy their curiosity (is he having an affair) or out of sheer boredom (he's doing what?) or to take an advantage of an opportunity (I hate this guy—wonder who he talks to all day—hey I know that person… what's going on here?!) The fact is that people who ought not have access to this information routinely do, and with no check or improper oversight, you are vulnerable. You may believe you are not and this is appropriate for the administration. Fine—Hillary Clinton (or whomever the next Democratic nominee will be) is pleased to hear it—remember that this sort of power will not always be with merely those you trust, and that this administration in particular has displayed difficulty in understanding its own limits.

Further, this kind of information so readily available and without checks or balances provides law enforcers with a discretionary authority explicitly reserved for law makers--that in turn opens the door to prosecution based on specific personal biases and agendas, random and haphazard enforcement and creates an opportunity for corruption. All of this has deleterious effects not only on our nation as a democracy, but on law enforcement itself, lessening both respect for and adherence to the law and actions that appear to be both capricious and sporadically acted upon.

Worse, it's ineffective. I'm not saying that such a database shouldn't exist, or that it shouldn't be a focused objective with proper checks and balances, but I am saying that as a primary tool, there's too little there to go on and investments in human intelligence, information sharing between domestic and international agencies. What would have prevented 9-11 is people paying attention to the warnings about Atta and others prior to 9-11—they were given, just not collated and paid attention too. The call records, amongst so much flotsam and jetsam is at best less useful than other tools and at worst false comfort and a distraction that we can ill afford that undermines the very liberties we are trying to protect.

Tonight, it is anticipated that President Bush will focus on 'securing our borders' by deploying the already overextended National Guard to keep out immigrants that are not the people that comprise the terrorist threat the administration keeps pointing to—you hear precious little about protecting the Canadian boarder this is curious given terrorists have actually attempted to enter the country from there and a it has much larger Muslim population than Mexico and a 12-page document recently posted on an al-Qaeda-affiliated on line forum urges would be terrorists to enter the US from Canada.

Cynics would see this speech tonight as a diversion—pragmatists as further incompetence. Perhaps both. I find it somewhat ironic that those so obsessed with 'securing the borders' and protecting 'our way of life' care so little for their own boundaries and the decisions that actually undermine that way of life in far more subtle and effective ways.

Perhaps it would benefit us not to confuse borders and boundaries, as if security rests entirely with keeping those unlike us out instead of defending our own liberties and integrity—and to start worrying a little less about the former when we seem to understand so little about the latter.

We love to overlook the boundaries which we do not wish to pass.
--Samuel Johnson
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