Posts Tagged ‘TAO’

The Leaky Leviathan

2015/06/21

David Pozen’s Harvard Law Review paper [1] “The Leaky Leviathan: Why the Government Condems and Condones Unlawful Disclosures of Information” explores the issues of leaks, plants, and combinations “pleaks” of confidential government information. Such disclosures represent an art form for U.S. (and I’m sure other nation) politicians. This paper will be required reading for any student of constitutional law or participant in government. For technologists such as readers of this blog, this paper begins the wrestling match around the Snowden leaks, and the battle over the NSA’s previously secret activities to intercept foreign and domestic Internet and telephone communications.

Pozen’s paper analyzes the reality of how government works. It is easy to make something “secret” in one form or another, but government has created informal ways to incrementally relax secrecy. We’ve all heard newscasters attribute a story to an “unnamed source”. When the story supports the government position in a measured way, it is a plant. When the government feels too much pain and the unnamed source was not controlled by the government, then it is a leak, and top executives in the government squeal like little piglets at the wrong done. In reality, Pozen writes, with tongue-in-cheek, plants need to be “nourished” by leaks. Otherwise, if all leaks were suppressed, plants would lose their believability and would be ineffective as a government tool. He points out that historically whistle-blowers and sources of leaks are rarely thrown in jail. They are, however, often shunned, losing valuable access to government executives.

The Creaky Leviathan by Sagar [2] is sometimes cited as a rebuttal, but I found it hugely supportive:

Let me be clear. Leaky Leviathan contains no hasty judgments. Pozen is admirably careful and measured in his praise of permissive enforcement; his broader objective is to show that the varied causes and consequences associated with leaks mean that the prevailing “system of information control defies simple normative assessment.” This conclusion I fully endorse. But the question remains: even if it advances our comprehension, does “middle-range theory” improve our ability to judge the value or worth of the prevailing “system of information control”? For the reasons outlined above, I think the answer must be no, since the overall consequences of permissive enforcement are obscure and hard to ascertain. As far as this “disorderly” system is concerned, the most we can do from a normative perspective, I think, is become clearer about whether particular outcomes it produces are more or less acceptable.

Whistle-blowing protection when it comes to national security issues is a dicey topic. The issue here is that huge losses of life and treasure are at risk. Counterbalancing such risk is that the national security infrastructure is huge: NSA, the Pentagon and all of the DoD, CIA, NSC, and of course all of the Executive Branch (and some of Congress) represent the government side, and the major contractors Boeing, L3, Halliburton, McDonnell Douglas, Raytheon, etc. are also in the mix. A system of secrecy often makes it difficult to generate healthy debate; moreover, these institutions are “wired” to worry about and exaggerate threats. Secrecy in these institutions makes it difficult even for internals to gain enough information to offer opposing views. Senator McCarthy, J. Edgar Hoover, Nixon, and others required outside forces to neutralize their negative actions. However real the communist threat was, McCarthy and Hoover violated the rights of many U.S. Citizens. There were, in the end, no weapons of mass destruction in Iraq, and we went to war over this fabrication. The Maginot line in France was an utter failure. Examples abound. The whistle-blowing that has been legitimized in the private sector is not well legitimized in the government sector. Current law limits disclosure to Congress, does not cover civilian contractors (thus Snowden is not protected; Manning was somewhat, but still got 35 years, possibly due more to the choice of WikiLeaks as an outlet). The Leaky Leviathan screams out for a legal structure to fairly protect national security whistle-blowing. Benkler’s paper [3] “Whistle Blower Defense” takes a solid crack at this.

Benkley starts with an excellent in-depth review of how we got from 9/11 to the mess that Manning and Snowden disclosed. His “Public Accountability Defense” starts with the observation that most leaks are not prosecuted, because if they were, the non-prosecuted leaks would appear to be sanctioned and would lose their credibility to shape public opinion. He focuses on “accountability leaks”, which are those that expose substantial instances of illegality or gross incompetence or error in important matters of national security. These are rare. One set occurred at the confluence of the Vietnam and Cold Wars with the anti-war and civil rights movements. The second deals with extreme post 9/11 tactics and strategies. Such leaks have played a significant role in undermining threats that the national security establishment has made to the “constitutional order of the United States” – in short, a very big deal. For many of us technologists the issues we would consider to leak would wrack our conscience and destroy our moral compass. We would be going out of our element to deal with the failure of mechanisms inside the national security system to create a leak. For example, the CIA’s program of torture, rendition, and secret off-shore prisons somehow leaked without an Ellsberg, a Manning, or a Snowden. (The technology that enabled Ellsberg to release the Pentagon Papers was a massive, highly automated, Xerox machine.) Benkley observes, “The greater the incongruity between what the national security system has developed and what public opinion is willing to accept, the greater the national security establishment’s need to prevent the public from becoming informed. The prosecutorial deviation from past practices is best explained as an expression of the mounting urgency felt inside the national security system to prevent public exposure. The defense I propose is intended to reverse that prosecutorial deviation.” Needed is a defense or at least a sentencing mitigation platform that requires only a belief that the disclosure would expose substantial “violation of law or systemic error, incompetence, or malfeasance.” This defense is based on the leaker serving a public good. It is not individual rights based. It is belief based, and does not depend on later proven illegality of what was disclosed.

This is not a naive proposal, and many subtleties are discussed, for example, to whom the leak is made, how it is made, when it is made, what is redacted, how public the leak mechanism is, etc.

Benkler reviews several historical leaks, going back to 1942 when Morton Seligman leaked decoded Navy messages to a reporter. If published, the fact that Japanese codes had been broken would be disclosed causing harm to the war effort. Since no government wrongdoing was disclosed, the accountability defense would not apply. The long historical review ends with a discussion of the Manning and Snowden cases. Manning’s 35 year sentence is obscenely excessive even though the criteria for an accountability defense are mixed. One would hope, in the presence of an accountability defense that at least a more reasonable sentence would have been handed down. A detailed analysis of the Snowden case is given; with the single exception of leaks on NSA’s Tailored Access Operations, TAO, which target specific computers, the defense applies. One interesting issue is that the legal defense should be structured so that the prosecution cannot “cherry pick” the weakest disclosure and prosecute that, ignoring the public value of the other disclosures.

The institution through which the leaks are made should also be protected by the defense. In some sense, “free press” does this, but this should be clarified in national defense cases.

Finally, “punishment by process” is discussed. The government can ruin someone in many ways. Huge legal expenses, long drawn-out trials, loss of access and jobs, etc. While protection from punishment by process is desirable, how to do this needs to be addressed. I would think that technologists fear this the most.

I strongly recommend these three thought-provoking articles.

[1] http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/vol127_pozen.pdf , “The Leaky Leviathan: Why the Government Condems and Condones Unlawful Disclosures of Information”, Harvard Law Review, December 2013, Vol 127, No. 2, David Pozner

[2] http://harvardlawreview.org/2013/12/creaky-leviathan-a-comment-on-david-pozens-leaky-leviathan/ “Creaky Leviathan: A Comment on David Pozner’s Leaky Leviathan”, Harvard Law Review Forum, December 2013, Vol 127, No. 2, Rabul Sagar. [A mostly favorable review of [1]]

[3] http://benkler.org/Benkler_Whistleblowerdefense_Prepub.pdf “A Public Accountability Defense for National Security Leakers and Whistleblowers” 8(2) Harv. Rev. L. & Policy, July 2014, Yochai Benkler. [A well reasoned and historically justified proposal for the legal structure of a whistle blower defense that is of particular interest to technologists.]

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