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The Ultimate Cloud Service

[Tom Tomorrow, May 25, 2011]

It’s not news that our government is keeping track of us. I have written about this many times, perhaps most recently four months ago in a post on Obama’s signing of a five-year extension of the Foreign Intelligence Surveillance Act. As Yale law professor Jack Balkin explained years ago, we are “witnessing a normalization of the National Surveillance State and its basic policies.”

My view … is that Obama has played the same role with respect to the National Surveillance State that Eisenhower played with respect to the New Deal and the administrative state, and Nixon played with respect to the Great Society and the welfare state. Each President established a bi-partisan consensus and gave bi-partisan legitimation to certain features of national state building.

After the Obama presidency, opponents of a vigorous national surveillance state will be outliers in American politics; they will have no home in either major political party. Their views will be, to use one of my favorite theoretical terms, “off the wall.”

Glenn Greenwald, in his Guardian column yesterday, brings us the latest news, confirming that surveillance is universal.

The real capabilities and behavior of the US surveillance state are almost entirely unknown to the American public because, like most things of significance done by the US government, it operates behind an impenetrable wall of secrecy. But a seemingly spontaneous admission this week by a former FBI counterterrorism agent provides a rather startling acknowledgment of just how vast and invasive these surveillance activities are.


On Wednesday night, [CNN’s Erin] Burnett interviewed Tim Clemente, a former FBI counterterrorism agent, about whether the FBI would be able to discover the contents of past telephone conversations between the two [Tamerlan Tsarnaev and his wife Katherine Russell]. He quite clearly insisted that they could:

BURNETT: Tim, is there any way, obviously, there is a voice mail they can try to get the phone companies to give that up at this point. It’s not a voice mail. It’s just a conversation. There’s no way they actually can find out what happened, right, unless she tells them?

CLEMENTE: “No, there is a way. We certainly have ways in national security investigations to find out exactly what was said in that conversation. It’s not necessarily something that the FBI is going to want to present in court, but it may help lead the investigation and/or lead to questioning of her. We certainly can find that out.

BURNETT: “So they can actually get that? People are saying, look, that is incredible.

CLEMENTE: “No, welcome to America. All of that stuff is being captured as we speak whether we know it or like it or not.”

“All of that stuff” – meaning every telephone conversation Americans have with one another on US soil, with or without a search warrant – “is being captured as we speak”.

On Thursday night, Clemente again appeared on CNN, this time with host Carol Costello, and she asked him about those remarks. He reiterated what he said the night before but added expressly that “all digital communications in the past” are recorded and stored:

Let’s repeat that last part: “no digital communication is secure”, by which he means not that any communication is susceptible to government interception as it happens (although that is true), but far beyond that: all digital communications – meaning telephone calls, emails, online chats and the like – are automatically recorded and stored and accessible to the government after the fact. To describe that is to define what a ubiquitous, limitless Surveillance State is.

Cool, huh? Since reading this, I’ve been wondering: Why doesn’t the government get into the cloud service business?

Isn’t it great to know they’re backing up all our email? And phone conversations too? If I’m careful with my hourly backups to my external hard drive and my use of various email services, I can recover email in an emergency. But something could go wrong. And my phone conversations? I don’t know how I would begin to back them up. Can I even do that legally, unless I ask permission every time I talk to someone? No problem for our government, though, thanks to FISA.

Why don’t they offer to charge us a fee for access to old data? How many times do Gail and I disagree about whether I told her something or not? Now we can settle such debates, assuming the disputed conversation took place on the phone or by email. Then again, maybe they’re recording even our regular conversations, whether in the house, the car, or on walks. Even better, for in that case they could settle any dispute. Just charge a small fee for each individual request, or a larger monthly charge for, say 100 requests, and a still larger charge for unlimited usage.

I would pay for this. Wouldn’t you?

Categories: Law, Politics
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