I get out of bed barely before another tour comes through our apartment. What happened to the Fourth Amendment? I see the shitty bike I got from Bike Walk Tompkins that I've been putting off modding. I'm making it electric by adding a motor to the front wheel but I need to replace the front wheel. Still waiting on the electric parts to deliver.
I go to Cory Doctorow's A.D. White talk where his flowery chronically-online lingo is more interesting than the substance of his talk. It feels redundant from Ardenwood Elementary School's computer lab, Lawrence Lessig lectures, Aaron Swartz's blog, and a Darknet Diaries podcast I listened to with Will on the way back from New Haven two weeks ago. His speaking tempo is like me + Adderall + a couple Celsii.
But it reminds me of something I was thinking about on that long drive: outsourced sovereignty. It's how our government outsources its operations to achieve its ends, without oversight and accountability, and pushes the downside risk elsewhere. It's a quick recipe for extraconstitutionality and something the Framers probably didn't anticipate.
If the government violates your First Amendment rights directly, by cancelling your New York Times Op-Ed, then you can sue them and win (unless you actually/are likely to incite or produce imminent lawless action). But what if the government does it secretly by coercing the NYT Editorial Board, so you get the usual rejection via email, but never are aware that it was government censorship? That still violates the constitution. Social media companies operate much like older media companies, with older editorial discretion translating to newer algorithms that dictate the reach of posts. What's the different from full post suppression versus deleting the post versus not letting the post go up at all? Functionally, nothing. From 2020-2021, the Biden Administration coerced social media companies to censor COVID-19 "disinformation," some of which may be true information, like the lab-leak theory. The tech companies got on their knees... I wasn't surprised. The Supreme Court has still not clarified whether the coercion violated the constitution or not, but it would be a difficult decision, because what's the difference between coercion and persuasion; between an algorithmic choice that already existed and aligns with the new administration versus one that changed due to the new administration; between suppression and prevention? These companies are more of a black box than this art girl I'm talking to. Since most of the social media companies stand on no moral foundation, they'll sway as administrations change, since the game-theoretic-optimal play is to do what daddy tells you to do. Even X, which trumpets its support of free speech, just uses suppression as a way to achieve the same end. It's kinda like what Aaron Swartz talked about—before, getting to the "town square" was hard because editors blocked the gate, but once you were in, you could talk all you want. Now, it's easy to enter, but it's full of randos, from anon xenophobes to senators who retweet everything their funders tell them to, so whoever has the loudest voice wins. Whoever controls the microphone, not the gate, controls information flow today. But if we gave everyone the same microphone, it'd be 4chan all over again. Liberty or safety?
If the government commits a ton of war crimes in foreign countries, they'll have pushback from other nations under treaties they have signed (but they'd still get away with it since whoever has more power wins). But what if the government just outsources some stuff to companies full of ex-employees and they commit a ton of war crimes. It's not the government's fault a ton of private citizens did crazy things. It's fine that there's no oversight or accountability—and when there is, the Executive can just pardon them.
Or what if the government wants data on citizens because one of them may be a terrorist? If they tried taking it directly, that would be illegal without a warrant—they need probable cause. If they want your bank or phone call records, they can take it without a warrant since you've consented to giving it away, so it doesn't violate the Fourth Amendment. The line between Fourth Amendment violation / not violation is how consensual the data extraction system is.
If the government tries to get your vehicle GPS data for an extended length of time, cell site location information (CSLI)—location data your phone transmits to cell towers all the time—or phone data, they need a warrant. The line seems well-defined to me, but it only applies for these narrow datapoints, and because the data is recorded "without any affirmative act on the part of the user beyond powering up" their phone. For inputted data, like the stuff you've put into Facebook, Twitter, YouTube, TikTok, etc., it's the Wild West. That stuff is routinely bought up by government agencies from data brokers to deport people, etc. Since purchasing commercially available data isn't searching commercial databases, the government arbitrages the statute. The data isn't always anonymized, which might make it okay in my view, it's pseudonymized, which means direct identifiers (name, SSN, etc.) are gone but persistent identifiers (advertising ID, cookie ID, IMEI, IP address) remain and can be used to track people with additional data. It's obvious to anyone that isn't braindead. This skirts the law since many forms of the data is "voluntarily" given up when you input data on apps, but data brokers don't let you track or delete data they have on you. Is that really voluntary? The only way to stop it is to become Amish because social media is quite integral to existing in society today. Carpenter v. US (2018) decided that the government needs a warrant to access CSLI largely because (1) phones are required to participate in modern society and thus are carried everywhere and (2) data is recorded without obvious and explicit consent and the only to stop CSLI from being recorded is turning off the phone's network connection or powering it off. Those reasons easily back an argument against current data broker practices. The case also talked about the dangers of having the government track citizens' every move in public spaces. That's possible with CSLI data (public + private spaces) but even easier with modern surveillance devices, like Flock Safety (only public spaces). Cory Doctorow shit on the company and endorsed an Ithaca anti-Flock group—first time I've heard of one. CCTV + ML makes location tracking of people trivial. I don't see the government making that illegal since they only work in public spaces, where people have don't have a reasonable expectation of privacy.
If the government wanted to pushback against some Middle East enemies, rather than declaring war and going through the usual bureaucracy, what if they just funded and sold arms to a few countries, like Egypt. Or like some mujahideen rebels in Afghanistan to fight against Russian communism. What's the worst that can happen? Worst case, Egypt gets fucked and the government loses a few billion dollars. Best case, they achieve their ends and get some oil for our boys back home. It's been going on a for a while. We've been participating in proxy wars ad nauseum. (I'll write more about this soon)
I see this outsourcing of sovereignty to proxies, which delegates oversight, accountability, and downside risk, everywhere by the US government. It seems like the easiest way to sidestep constitutional barriers and a no-brainer given the current system design. Since the law (enforced norms) doesn't stop this, only norms could. And our societal norms seem to support safety over liberty, even as we shit on the Chinese surveillance state.