With all the headlines dedicated to the National Security Agency, 2013 could truly have been called the year the NSA came out of the closet. It seemed to be a snowball of events where things just kept getting worse one piece of news after the other. First we discovered that the NSA was spying on civilians, and it wasn’t long before news broke about spying on leaders from allied countries (and rumors that they were even doing it to the pope). Then we found out they were stealing data from the same firms that were giving them information—it’s truly been a big year for news about the NSA. Nevertheless, people in general have no idea how to really deal with the NSA problem. Tung Yin, professor of Law at Lewis & Clark Law School, lent his expert opinion in a recent interview outlining the many dos and don’ts (and can’ts) that everyone should keep in mind.
Patriot Act: A Workable Defense?
Section 2:15 of the Patriot Act has been cited repeatedly as a defense by the government. Although it does often get attention and ire from the public, many times it is not at the center of the decision-making. In the case of the NSA, however, Yin says, “Parts of the Patriot Act, I think, make sense because the old law—the US law—joined with just regular criminal search warrants and cell phones was more like something appropriate to the mid-20th century, not to cell phones in the 21st century. But parts of the Patriot Act that made it easier for the government to get and share what we call foreign intelligence information, and this is a lot of what the NSA is going after.”
After 9/11, the transfer of information between different official agencies and investigation bodies became easier because of the threat that terrorism presented. One of the main concerns that civil libertarians have is the fact that it is now a little too easy for the government extract information.
LOVEINT: Are You a Target?
LOVEINT is the code that NSA employees use for data they have obtained from their significant others and similar relations. This is of course an absolute invasion of privacy. So how do you go about taking action against the government if it is in fact happening to you? In short: you cannot. Yin elaborates, “There would be causes of action that you could raise about LOVEINT, but the problem is that the typical way you would find out is that the information that the NSA comes across is shared with criminal investigators, who then use it to get to prosecute you as the target. And then, at that point, what you care more about is less about your privacy being violated and more about just making the government go away so you don’t get convicted.”
Technically, you can file a motion against the government in the event that your personal life is being compromised; the likelihood, however, is that you would never know when and if it was compromised.
Facebook vs. NSA
Facebook, Google, Yahoo and a number of other tech firms collect data on their users. This data is so pervasive and detailed at times (see recent rumors that Facebook also scans personal messages for useful data) that it is hard to pinpoint exactly where the NSA is crossing the line. One argument that is now gaining traction is that people who willingly share a large portion of their life with the online world know full well that their information is up for grabs to just about anyone they make it accessible to, so they should think twice about their trouble with the NSA. There are indeed many similarities between what the NSA does and what social-media sites and tech firms in general are doing. There is a key difference, however. Yin says, “But of course Facebook is entirely voluntary. I know a few people who refused to join Facebook, and if they refuse to join Facebook, then Facebook does nothing about that. So, you can opt out from Facebook, but you can’t really opt out from the NSA.”
Better Safe Than Sorry
People have often asked what options they have in terms of keeping their data out of the NSA’s hands; realistically speaking, the options are limited, and the efficiency of these options is not guaranteed. Talking about this matter, Yin says, “I think that there are some encryption programs, like PGP, which is Pretty Good Privacy. It has been around for a while. I am not sure how secure it still is. But there are some encryption programs that might provide some degree of privacy, but the problem in this is how confident one would be that the NSA has not actually cracked those encryption schemes.” What that means is that we may install prevention mechanisms to keep the NSA at bay, but in practical terms, there is no way for us to know whether we have managed an airtight solution. Unless the NSA targets a person and proceeds with a criminal trial, the person in question would never know if their encryptions have failed.
The New York Times Test
General common sense is another route to take. Every single time someone posts personal information or details online, that individual must consider the possibility that the information is going to become visible to others. How can you tell what to put online and what to avoid? Yin raises the New York Times test—that is, “If you’re concerned about privacy—anything that you put on the Internet, any emails that you send—apply the test: how would you feel if this showed up on the first page of The New York Times? You can’t really live your life entirely like that, but if you exercise a mode of caution in terms of what you send and how you send it, it’s probably a good thing generally.”
Of course, this is not as simple as it sounds. But acting with caution is better than getting into trouble later for a few innocent searches. The best thing that people can really do is use the system to their advantage: get a political voice. Find candidates that people have voted for and put into office, reach out to those candidates and find people who can push your agenda.
Leading article image courtesy of Skley
About Tung Yin
To hear the interview with Tung Yin, visit Mobistealth.com. Tung Yin is a professor of law at Lewis & Clark Law School in Portland, Oregon. His main area of focus is national-security law, criminal procedure, terrorism and law, and federal criminal law. He has conducted extensive research on domestic legal problems that were born from counter-terrorism practices and policies in the aftermath of 9/11. Yin has more than a decade of experience as a lawyer. Much of his work is featured on leading newspaper sites such as The Washington Post. The NSA has been an issue that Yin has addressed through his expertise. His opinion has been featured on several national television shows dissecting the NSA.
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