Cass Sunstein

If by “Big Data” You Mean “Big Campaign Donations”

President Obama has named the people who will help John Podesta accomplish this task.

I have also asked my Counselor, John Podesta, to lead a comprehensive review of big data and privacy. This group will consist of government officials who—along with the President’s Council of Advisors on Science and Technology—will reach out to privacy experts, technologists and business leaders, and look at how the challenges inherent in big data are being confronted by both the public and private sectors; whether we can forge international norms on how to manage this data; and how we can continue to promote the free flow of information in ways that are consistent with both privacy and security.

As I said in my annotations to Obama’s speech, effectively Obama responded “to a review by calling for another review,” but at least it would be a welcome first time he reached out to technologists.

Here’s the list:

That’s why in his speech, the President asked me to lead a comprehensive review of the way that “big data” will affect the way we live and work; the relationship between government and citizens; and how public and private sectors can spur innovation and maximize the opportunities and free flow of this information while minimizing the risks to privacy. I will be joined in this effort by Secretary of Commerce Penny Pritzker, Secretary of Energy Ernie Moniz, the President’s Science Advisor John Holdren, the President’s Economic Advisor Gene Sperling and other senior government officials.

I’ll outsource judging whether this amounts to reaching out to technologists to Chris Soghoian:

None of the big names named in the president’s “big data” review announcement are technologists. DC at its finest.

But I’m particularly interested in Penny Pritzker’s presence on the list.

After Cass Sunstein and Geoffrey Stone ended up being too independent to deliver the whitewash Obama wanted, he has picked one of his biggest campaign donors to review Big Data.

So I guess by “Big Data” we know what Obama meant.

Worse still, Pritzker heads up an Agency that — it is increasingly clear — serves a key role in offering carrots and sticks to coerce compliance from private companies with government data demands. And compliance not just for the purposes of defense of spying, but also for cyberoffense. Not exactly the kind of person who might expect candor from the Big Data companies likely to be coerced by the government.

Does This Provide Insight into Obama’s Relative Silence?

The US Ambassador to Britain, Matthew Barzun, went on the Beeb and declined to criticize Edward Snowden.

Asked if he shared the UK security services’ concerns about the threat to national security from the leaks, he said he wanted to focus on the “importance of having this debate about what the trade-offs are between security and privacy, between transparency and secrecy, and to do so in a way that protects whistleblowers – which is different, by the way, from wholesale releasing of information, hundreds of thousands of documents”.

This is a remarkable statement from someone at the heart of what must be touchy relations between the NSA and GCHQ and the US and Brits more generally (if complaints about prior US leaks serve as predictor).

Moreover, it might vocalize some of the reluctance on President Obama’s part to aggressively defend the NSA’s violation of laws authorizing surveillance.

Don’t get me wrong. I don’t believe Obama welcomes any real debate. The conduct James Clapper’s Committee to Make Us Love the Dragnet makes that all too clear. Rather, I suspect Obama believes he can win the debate, and convince us all that we need an even bigger dragnet. (Which might explain the inclusion of Cass Sunstein on the Committee to Make Us Love the Dragnet.)

I suspect Obama, having been convinced by partial briefings the dragnet is great for America, also believes he can persuade the rest of us (who aren’t stuck in his partial briefing bubble) to love it too.

Certainly, his Ambassador to Britain seems to have been permitted to adopt the same stance.

Obama’s James Clapper’s Committee To Make You Love the Dragnet Has a Kiddie Table

Spencer Ackerman has a review of how the first two meetings of Obama’s Non-Tech Tech Review panel have gone. And while they went about as horribly as I suspected — certainly there was no talk of actually fixing obvious problems with the dragnet — there are a few details that show how “most exceptional” this effort is.

The White House, having taken pains to pretend James Clapper is not in charge of the Director of National Intelligence Review Group on Intelligence and Communications Technologies, referred comment to James Clapper.

The White House deferred comment to the Office of the Director of National Intelligence, which did not respond.

The Non-Tech Tech Review Panel comes with a kiddie table — or rather, a conference room almost two miles away from the White House, where the tech giants got to eat.

During its first round of meetings, the panel, known as the Review Group on Intelligence and Communications Technology, separated two groups of outside advisers. One group included civil libertarian organizations such as the ACLU and the Electronic Privacy Information Center. It met in a conference room on K and 20th Streets. Morrell and Clarke did not attend.

The other, which met in the White House Conference Center, included technology companies that have participated – sometimes uneasily and at court behest – in NSA surveillance. All five panel members participated.

I’m not surprised the CIA’s representative on the Committee to Make You Love the Dragnet refused to be seen at the kiddie table with civil libertarians. But Richard Clarke?

Finally, the tech companies appear not to have sent tech experts.

The meeting itself struck [New America Foundation VP Sascha] Meinrath as bizarre. Representatives from the technology firms were identified around the table not by their names, but by placards listing their employers. There was minimal technical discussion of surveillance mechanisms despite the presence of technology companies; Meinrath took the representatives to be lawyers, not technologists.

When it appeared like the meeting would discuss a surveillance issue in a sophisticated way, participants and commissioners suggested it be done in a classified meeting.

Apparently, Cass Sunstein didn’t even have to get caught proposing weird conspiracy theories to make this thing a laughingstock.

3 Tech Issues the Non-Technologist NSA Technical Committee Needs to Address

A number of people are asking why I’m so shocked that President Obama appointed no technologists for his NSA Review Committee.

Here are three issues that should be central to the Committee’s discussions that are, in significant part, technology questions. There are more. But for each of these questions, the discussion should not be whether the Intelligence Community thinks the current solution is the best or only one, but whether it is an appropriate choice given privacy implications and other concerns.

  • Whether the Intelligence Community can accomplish the goals of the Section 215 dragnet without collecting all US person metadata
  • Whether the NSA can avoid collecting Multiple Communication Transactions as part of upstream collection
  • How to oversee unaudited actions of technical personnel

There are just three really obvious issues that should be reviewed by the committee. And for all of them, it would be really useful for someone with the technical background to challenge NSA’s claims to be on the committee.

Whether the Intelligence Community can accomplish the goals of the Section 215 dragnet without collecting all US person metadata

One of the most contentious NSA practices — at least as far as most Americans go — is the collection of all US person phone metadata for the Section 215 dragnet. Yet even Keith Alexander has admitted — here in an exchange with Adam Schiff in a House Intelligence Committee hearing on June 18 — that it would be feasible to do it via other means, though perhaps not as easy.

REP. SCHIFF: General Alexander, I want to ask you — I raised this in closed session, but I’d like to raise it publicly as well — what are the prospects for changing the program such that, rather than the government acquiring the vast amounts of metadata, the telecommunications companies retain the metadata, and then only on those 300 or so occasions where it needs to be queried, you’re querying the telecommunications providers for whether they have those business records related to a reasonable, articulable suspicion of a foreign terrorist connection?

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The No-Technologist Technology Review Panel

In addition to the four people ABC earlier reported would be part of Obama’s Committee to Learn to Trust the Dragnet, Obama added … another law professor, Geoffrey Stone. (Stone is [see update], along with Swire, a worthwhile member. But not a technologist.)

What’s fucking crazy about the committee is it has zero technologists to review a topic that is highly technical. Obama implicitly admits as much! He sells this committee for their “immense experience in national security, intelligence, oversight, privacy and civil liberties.” National security, intelligence, oversight, privacy, civil liberties. No technology.

On August 9, President Obama called for a high-level group of experts to review our intelligence and communications technologies. Today the President met with the members of this group: Richard Clarke, Michael Morell, Geoffrey Stone, Cass Sunstein and Peter Swire.

These individuals bring to the task immense experience in national security, intelligence, oversight, privacy and civil liberties. The Review Group will bring a range of experience and perspectives to bear to advise the President on how, in light of advancements in technology, the United States can employ its technical collection capabilities in a way that optimally protects our national security and advances our foreign policy while respecting our commitment to privacy and civil liberties, recognizing our need to maintain the public trust, and reducing the risk of unauthorized disclosure.

The President thanked the Members of the Group for taking on this important task and looks forward to hearing from them as their work proceeds. Within 60 days of beginning their work, the Review Group will brief their interim findings to the President through the Director of National Intelligence, and the Review Group will provide a final report and recommendations to the President. [my emphasis]

So in spite of the fact that the White House highlights technology in its mandate, that didn’t lead them to find even a single technologist.

Also: Cass Sunstein.

Also: the Committee does, in fact, report its findings through James Clapper, the guy whose programs they will review, they guy who lied to Congress.

At least the White House isn’t promising — as Obama originally did — that it will be an “outside” “independent” committee.

Update: Egads. I take back what I said about Stone, who said this in June.

[W]hat should Edward Snowden have done? Probably, he should have presented his concerns to senior, responsible members of Congress. But the one thing he most certainly should not have done is to decide on the basis of his own ill-informed, arrogant and amateurish judgment that he knows better than everyone else in government how best to serve the national interest. The rule of law matters, and no one gave Edward Snowden the authority to make that decision for the nation. His conduct was more than unacceptable; it was criminal.

Advocate of Secret Infiltration, Cass Sunstein, on Obama’s “Committee To Make Us Trust the Dragnet”

ABC reports that, along with former CIA Deputy Director Mike Morell, former Homeland Security Czar Richard Clarke, and former Obama special assistant for economic policy Peter Swire, the White House (or James Clapper — who knows at this point) has picked Cass Sunstein for its Review Committee on NSA programs.

Frankly, a lot of people are investing misplaced confidence that Richard Clarke will make this committee useful. While he’s good on a lot of issues, he’s as hawkish on cybersecurity as anyone else in this country. And as I keep pointing out, these programs are really about cybersecurity. Richard Clarke is not going to do a damned thing to rein in a program that increasingly serves to surveil US Internet data to protect against cyberthreats.

But Sunstein? Really?

As Glenn Greenwald (yeah — that Glenn; did they really think no one would raise this point?) reported back in 2010, Sunstein wrote a paper in 2008 advocating very creepy stealth measures against “conspiracy theories.”

In 2008, while at Harvard Law School, Sunstein co-wrote a truly pernicious paper proposing that the U.S. Government employ teams of covert agents and pseudo-”independent” advocates to “cognitively infiltrate” online groups and websites — as well as other activist groups — which advocate views that Sunstein deems “false conspiracy theories” about the Government.  This would be designed to increase citizens’ faith in government officials and undermine the credibility of conspiracists.  The paper’s abstract can be read, and the full paper downloaded, here.

Sunstein advocates that the Government’s stealth infiltration should be accomplished by sending covert agents into “chat rooms, online social networks, or even real-space groups.”  He also proposes that the Government make secret payments to so-called “independent” credible voices to bolster the Government’s messaging (on the ground that those who don’t believe government sources will be more inclined to listen to those who appear independent while secretly acting on behalf of the Government).   This program would target those advocating false “conspiracy theories,” which they define to mean: “an attempt to explain an event or practice by reference to the machinations of powerful people, who have also managed to conceal their role.”

And remember, a big mandate for this committee is not to review the programs to see if we can make them more privacy-protective, but simply to increase our trust in them. Which goes to the core of what Sunstein was talking about in his paper: using covert government propaganda to, in this case, better sell covert government spying.

Well, if Obama and Clapper’s rollout hadn’t already discredited this committee, Sunstein’s selection sure does.

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America’s Power Couple: Samantha Power Fights Atrocities, Cass Sunstein Defends Child Labor

These two things happened in the same week.

On Monday, Obama rolled out his Atrocities Prevention Board. While in reality, this appears an excuse to sanction Israel’s enemies, in theory at least, it’s an initiative to find alternative tools to prevent the massacres of women and … children.

Obama put Samantha Power in charge of this effort.

On Thursday, Obama’s Labor Department withdrew rules designed to prevent kids under the age of 16 from being paid to perform dangerous farm jobs.

Obama’s equivocations regarding imposing limits on businesses are usually attributed to Samantha Power’s husband, Cass Sunstein.

It must take a lot of effort for this power couple, working so hard to help and hurt kids all in one week.

The SCOTUS Merrygoround: Is Ginsburg Shuffle Coming?

The UPI has an article up with the startling headline “Ruth Bader Ginsburg stepping down in 2015″. The article, which is really more of a pondering question, is bylined today by Michael Kirkland and paints the scenario of a Ruth Bader Ginsburg retirement in 2015 so that Obama has sufficient time left in his second term to appoint and confirm a successor.

Although referenced rather obliquely in his article, Kirkland’s basis is premised entirely on the thoughts and predictions of SCOTUS, AND SCOTUSblog, longtime pro Tom Goldstein in a SCOTUSblog post he did last Tuesday, February 14th. Goldstein may be only one voice thinking out loud, but he carries the bona fides to warrant serious consideration here.

Goldstein points to the confluence of Ginsburg’s age, health, and personal career tracking with that of Justice Louis Brandeis. And the thought that Ginsburg will want to see that her replacement is chosen by a Democratic President. Goldstein’s thought process, originally laid out in the comprehensive February 14th entry at SCOTUSblog, is worth reading. Assuming Obama is reelected, which is still a pretty decent bet at this point (certainly capable of changing though), it is hard to find fault with Goldstein’s logic; in fact, it is rather compelling. I also agree with Tom that none of the current conservative bloc, including swing man Tony Kennedy, are going anywhere anytime soon.

Where I do differ from Goldstein, however, is in his prediction for what would transpire upon the theorized Ginsburg tactical retirement:

Assuming that President Obama is re-elected and that Justice Ginsburg does retire at some point in the next Administration, who will be the next nominee? One thing is certain: it will be a woman. It is inconceivable that a Democratic administration with any reasonable choice would cause the gender balance of the Supreme Court to revert to seven men and two women. Relatedly, appointing three women in a row to the Court is excellent politics.

President Obama will also have a strong desire to pick an ethnically or racially diverse nominee. It would be disappointing for the nation’s first African-American President to make two white appointments, leaving the Court with seven white members. A more diverse Court is a better legacy. Given that the President already appointed the first Latina Justice, most likely is an African-American or Asian-American nominee. That said, I think race and ethnicity are plus factors, rather than an imperative like gender.

I am not sure I buy Goldstein’s certainty of yet another female Supreme Court nominee from Barack Obama. I am just not convinced Obama appoints a third woman in a row, color or not. It sure makes it easier that it would be to fill a “female seat”, Ginsburg’s, I guess, and Obama clearly wanted to see three women justices on the court. But he crossed said threshold, and knowing one of them may not be there so long into the future likely played into the strength of his desire to appoint a second woman after Sonia Sotomayor. Such is quite a different thing from having an abiding determination to insure there are always three women on the Supreme bench.

Further, it really restricts the pool of potential nominees and plays into a plethora of counter Continue reading

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