After an NSA cryptographer took to ZDNet to defend his organization's lawless surveillance, EFF co-founder John Gilmore posted a long and thoughtful reply to the Cryptography mailing list (an absolute must-read, these days), in which he explains why the idea that spies should be able to spy on everyone, so long as they do so for the right reasons, is a bad idea. It's a high-level version of an argument a lot of us are having these days, so it's worth reading carefully. The tl;dr is "There will always be

'emergencies', always 'crises', always 'evildoers", always

'opportunities', that would be relieved 'if we could just do X that

wasn't allowed until now'."

Having watched the Drug War over the last 50 years, NSA for 30 years,

and TSA/DHS over the last decade, I have zero faith that NSA can

collect intimite data about every person in America and on the planet,

and then never use that data for any purpose that is counter to the

interest of the people surveilled. There will always be

"emergencies", always "crises", always "evildoers", always

"opportunities", that would be relieved "if we could just do X that

wasn't allowed until now". So what if general warrants are explicitly

forbidden? And if searching people without cause is prohibited? We

could catch two alleged terrorists — or a few thousand people with

sexual images — or 750,000 pot smokers — or 400,000 hard-working

Mexican migrants — every year, if we just use tricky legalisms to

ignore those pesky rules. So the government does ignore them. Will

you or your loved ones fall into the next witchhunt? Our largest city

was just found guilty of forcibly stopping and physically searching

hundreds of thousands of black and latino people without cause for a

decade — a racist program defended both before and after the verdict

by the Mayor, the Police Commission, the City Council, and state

legislators. NSA has secretly been doing warrantless, suspicionless,

non-physical searches on every American with a phone for a decade, all

using secret gerrymandered catch-22 loopholes in the published

constitution and laws, defended before and after by the President, the

Congress and all the courts. Make rules for NSA? We already have

published rules for NSA and it doesn't follow them today!

So Mr Barkan moves on to why NSA would never work against the

citizens. The US imprisons more people than any country on earth, and

murders far more than most, but it's all OK because those poor,

overworked, rule-bound government employees who are doing it are

"defending freedom". Bullshit they are! Somehow scores of countries

have found freedom without descending to this level of lawlessness and

repression. NSA cannot operate outside of this context; rules that

might work in a hypothetical honest and free government, will not work

in the corrupt and lawless government that we have in the United

States.

NSA employees are accountable for following the rules, Mr. Barkan?

Don't make me laugh. There's a word for it: impunity. EFF has

diligently pursued NSA in court for most of a decade, and has still

gotten no court to even consider the question "is what NSA did legal?"

Other agencies like DoJ and HHS regularly retain big powers and

budgets by officially lying about whether marijuana has any medical

uses, rather than following the statutes, despite millions of

Americans who use it on the advice of their doctor. None of these

officials lose their jobs. Find me a senior federal official anywhere

who has ever lost their job over major malfeasance like wiretapping,

torture, kidnapping, indefinite imprisonment, assassination, or

malicious use of power — let alone been prosecuted or imprisoned for

it. Innocent citizens go to prison all the time, from neighborhood

blacks to medical marijuana gardeners to Tommy Chong and Martha

Stewart — high officials never.