Big Brother and Federal Electronic Surveillance Policy

Stoa debate students have a high-tech resolution for the coming school year: Resolved: The United States federal government should substantially reform its electronic surveillance law.


So homeschool students will be researching and debating many legal issues and technologies, attending debate club meetings, and traveling to tournaments through the school year. Lots to do during the school year, but without attending actual government run or licensed schools.

How do federal government and state governments keep track of students without institutional or electronic surveillance? After all, most homeschool students are minors, doesn’t the state have an obligation to insure that they are safe and secure, and not mistreated or poorly educated?

What if these students are taught subversive ideas, perhaps by rogue unlicensed instructors bent on overthrowing the established order? Speaking of Anthony Gregory, here is his February, 2104 Independent Institute post, Stop the Surveillance State. Plus, here is subversive video on electronic surveillance and Fourth Amendment.

Well, welcome to another national debate topic from the thoroughly subversive Stoa debate league. Stoa leadership is surely climbing up and up NSA, FBI, CIA, HSA and other federal alphabet security agency watchlists. They’ve now directed thousands of students to Google, email, and post keywords that trigger federal electronic surveillance networks to record, track, and investigate. Stoa debate tournament coordinators this fall can expect community judges to show up who have no clear connection to the homeschool community, and who will file detailed reports when they get back to their offices (and I suspect their debate ballots will lean toward protecting status quo federal electronic surveillance policies).

New policies tend to add more layers of regulations
Many affirmative debate cases will accidently serve to weave thicker webs of regulations constraining citizen freedoms. As much as the titles or goals of new federal policies may sound helpful or at least plausible (for example: The Children’s Online Privacy Protection Act), the incentives of special interests and bureaucrats involved tend to turn each policy toward protecting state bureaucracies and their misdeeds from public scrutiny. Plus most legislation causes unintended consequences that invite further legislative efforts to reform or expand state control. Here are a few examples:

• Federal privacy law (HIPAA) is being used to protect the Veterans Administration mistreatment of veterans (from this post Who is protected by patient privacy laws? Hint: not patients.)

Citing patient privacy, managers have threatened VA employees or retaliated against those who complain about agency misconduct, according to a key congressman and the union that represents most of the department’s employees.
“VA routinely uses HIPAA as an excuse to punish into submission employees who dare to speak out,” said Rep. Jeff Miller (R-Fla.), chairman of the House Committee on Veterans’ Affairs. He is leading a probe into the coverup of long wait times for VA patients.

• 9/11 security concerns used to prevent journalists from taking pictures of ugly federal buildings.

After I took this photo of a public walkway in front of the building, four armed guards surrounded me and my bike. I was ordered off my bicycle and told to hand over my camera. “Where is your identification? Why are you taking photos of our building?” an officer asked me. I explained my role as a reporter and asked what rules I had broken. “You are suspicious, and we are in a post-9/11 world,” he said.
The four armed guards prevented me from moving or getting on my bike. After calling my boss, and discussing with the guards, I was given my camera back. “Be smarter next time,” he said, “and don’t take any more photos here.” 

Students may read claims that the September 11, 2001 terrorist attacks launched the expansion of federal government domestic electronic surveillance, but they should look back to 1995 and the Oklahoma City bombing that stirred a frenzy in federal agencies to better monitor “antigovernment” groups. HSLDA reports on Time magazine linking the Oklahoma bombing to homeschooling:

Beginning with a description of the hatred and paranoia that led to the tragedy in Oklahoma, writer Philip Weiss implied that extremist forces helped the Republican landslide in 1994.Their coalition included well-known elements of far-right thought: tax protesters; Christian home-schoolers; conspiracy theorists influenced by the John Birch Society’s fear of one-world government; Second Amendment activists (mostly men) for whom guns are an important part of an independent way of life; self-reliant types who resent a Federal Government that seems to favor grizzly bears and wolves over humans on government land. (Time, 1 May 1995, page 48.)

The expansion in federal electronic surveillance  after Oklahoma City is discussed in this 1995 New York Times article: “Broad new eavesdropping authority is a cornerstone of the Clinton Administration’s counterterrorism package that Congress is widely expected to approve as a legacy of Oklahoma City.”

Just as IRS, Federal Election Commission, and Department of Justice employees monitor conservative groups, Tea Party and Patriot groups for financial or campaign law violations, NSA, FBI, HSA, and other federal agencies monitor for possible threats.

Electronic surveillance continues to increase. Here is a 2012 Huffington Post story Warrantless Electronic Surveillance Surges Under Obama Justice Department. And this 2012 Computerworld article reports on expansion from 2009:

The number of so-called pen register and trap-and-trace orders obtained by federal law enforcement agencies has increased 361 percent between 2009 and 2011…

Pen registers capture outgoing data from a surveillance subject, while trap-and-trace orders capture incoming data, including the addresses of email messages who the subject is talking with on instant messages. The two types of surveillance are not supposed to record the contents of conversations. 

This recent article in The Guardian notes that there seems to have been much federal electronic “progress” since 1995:

William Binney is one of the highest-level whistleblowers to ever emerge from the NSA. He was a leading code-breaker against the Soviet Union during the Cold War but resigned soon after September 11, disgusted by Washington’s move towards mass surveillance.
On 5 July he spoke at a conference in London organised by the Centre for Investigative Journalism and revealed the extent of the surveillance programs unleashed by the Bush and Obama administrations.
“At least 80% of fibre-optic cables globally go via the US”, Binney said. “This is no accident and allows the US to view all communication coming in. At least 80% of all audio calls, not just metadata, are recorded and stored in the US. The NSA lies about what it stores.”
…“The ultimate goal of the NSA is total population control”, Binney said, “but I’m a little optimistic with some recent Supreme Court decisions, such as law enforcement mostly now needing a warrant before searching a smartphone.”

So… Stoa debate students have their work cut out for them as they research federal electronic surveillance law reforms. A not-unreasonable reform would require the federal government to embrace:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Here is description of a Bill of Rights Institute “eLesson” on Constitutional due process and privacy. The entire lesson plan with handouts and answer key can be downloaded.

The Constitutional principle of due process, which holds that 

government must interact with citizens according to duly‑enacted laws, balances the rights of suspects with public safety. The Fourth Amendment was added to the Constitution to ensure we would be protected from unreasonable searches and seizures. But do all searches require a judge-­approved warrant? How do we know which ones do? Further, surveillance technology has posed challenges to the meaning and application of the Fourth Amendment, and understandings of “reasonable,” “papers and effects,” and “search” have changed over time. Understanding, analyzing, and applying the Fourth Amendment is vital to maintaining the freedom the Founders sought to protect and the principle of due process. [Source.]

And for Stoa debater wanting to include a Yes, Minister episode in their electronic surveillance research, I suggest the “Big Brother” episode. Hacker enjoys a rare win in this episode, beating back Humphrey’s objections to placing safeguards on the National Database and government surveillance of its citizens. Free viewing with Amazon Prime…