Transcendence

By now you have probably heard the term “transhumanism.” If you haven’t, it is basically the overarching term to describe an intellectual movement concerned with improving humanity through progressive technology. It’s ultimate goal is to prolong human life, making humans near immortal by marrying technology with biology in a way that reduces human suffering and enhancing the human condition.

The intellectual movement itself is however still controversial — and not necessarily because it espouses wild theories or avant-garde scientific predictions. Rather, Transhumanism has become controversial because many transhumanists have begun to mix religious subtext into their argument. The main reason for this is because there are many different subsets of groups within the Transhumanist movement, and in Futurism in general.

While we all want the same outcome, we have different ways of encouraging people to adopt the values of radical openness and avante-garde scientific beliefs to better humanity. It is why as someone who has long been interested in technology and deep philosophical thought that I have taken it upon myself at times to posit why not all Transhumanists are arguing their principles in a manner that gets people to consider its scientific validity.

The other day I had dinner with two friends of mine who are highly adept computer scientists; one just completed a successful first round interview with Google. One of our conversations at dinner surrounded Google’s somewhat enigmatic director of engineering, Ray Kurzweil. Kurzweil of course is most famous for his support and belief of technological Singularity (a subset of the Transhumanist movement). The Singularity is focused on the theory that artificial intelligence and nanotechnology will reach a point where the human can essentially become post-human by way of his biology merging with technology (a sort of cyborg if you will).

So what does my friend think of the Singularity? “I think the whole idea sounds kind of crazy,” he said. I asked him why. He went on to conclude that it seems like people within the movement are advocating their views more from a philosophical standpoint than a scientific one. He further stated, while much of what Kurzweil states is scientifically plausible, he gets lost in the way “Moore’s Law” is used as a basis for the argument, saying this Law is coming to an end. I responded by asking about a “post-silicon” era. He said its possible, but that he doesn’t think many of these people are focusing on the fact Moore’s Law is ending, because they are so caught up in the prediction component of Futurism and that this will happen in their lifetime.

My friend makes several critical, reasonable points. And by the end of the night, I actually got him to admit that he supports Singularity, at least in part. How did I do that?

By advocating the principles of Singularity and Transhumanism through a pragmatic approach.

I asked my friend what he thought of artificial intelligence, and ever expanding technology. I asked him if he believed in these principles. He said yes. I asked him if he supports using technology to advance human condition and to expand life expectancy, possibly indefinitely. He said yes. So I asked him why he doesn’t support the tenets of Singularity. He finally conceded that the message itself seems “sketchy” and he thinks its unlikely to happen by 2045.

The problem with some in the Transhumanist movement is that the message is sometimes overlooked in its presentation. Now, I happen to support Kurzweil, and I do support research towards the principles of Singularitarianism. I also believe we will witness a technological Singularity. However, what I and others like my friend have taken issue with is the way his supporters preach that vision.

Today on Twitter, a Futurist and Transhumanist I happen to really like listening to espoused that through post-humanism, and the Singularity, we will become Gods. He is not alone in this vision. There are many Transhumanists that believe man is uniquely qualified as an intelligent being, more so than the rest of the animal kingdom, to solve nature’s problems. In a way, what these transhumanists are saying is that we will all become neo-creationists. This view is more common under the banner of Singularitarians because the Singularity is the component of Futurism and Transhumanism most associated with the idea of transcending biology.

And, again I don’t disagree with its predictions (maybe the timeline and some of the specifics) but its worth seriously listening to.

So how might advocates for Transhumanism, including Singularity, better advocate for the radical openness necessary to accept these scientific possibilities? Through Extropianism.

Extropianism is the Transhumanist philosophy that takes the most pragmatic approach to the ideals shared by all transhumanists. It takes its name from the opposite of the thermodynamic principle of entropy, or the measurement that reaches a finite limit or arrangement. Extropians believe in the principles of quantum physics, whereby nothing is impossible, only highly improbable to whatever degree. 

So what do Extropians believe in specifically? They believe in the same things as Singularitarians (and are supporters of Singularity) without attaching a set timeline to abide by. E.g, Extropians do not subscribe to a certain 2045 timeline (they are not doubting it any more than they are certain of it). More specifically, Extropists, the modern philosophical movement of Extropianism is concerned not only with transhumanism, but pragmatic ways to overcome its problems in a timeline-neutral, non-religious manner.

Extropists are utilitarian in their visions. They believe that man should exist in his life, however definite to achieve maximum happiness. They believe technological progress can greatly achieve utilitarian outcomes by alleviating human suffering and promoting technology to overcome biological limitations like disease and even death. The only way they believe this can happen is by breaking down the political, social and economic barriers to do so and acknowledge how best to avoid new technologies being abused or solely used by a select few.

The Extropians concern themselves with near-future concerns, such as bioethics, open-source biotechnology, open-source genetics and freedom of information. They advise patents surrounding new-technologies related to medicine, life-improvement and human good be restricted in accordance with current law on medical patents. They are in favor of an open-source method regarding biotechnology to reduce bioethical concerns. In order to achieve maximum good, the Extropian wants to prevent technology being monopolized by a single corporation, a select few corporations, government(s) or rich and powerful individuals.

By working in an open-source scientific community where information flows freely and unrestricted, transhumanism will have the greatest, most equal outcome. The transhumanist movement needs to loose the religiosity in its argument, another key component of Extropist thought.

Ultimately, Extropists are basically Singularitarians without a timeline, and whose scientific advocacy heavily concerns issues like politics, economics and needed societal reform in the interim. You can convert a lot more people to the idea of Transhumanism when you stop focusing on the distant future cargument as a main focus and instead focus on Transhumanism in a manner that promotes over-all humanity by addressing the near future as well.

Moderates in and out of the scientific community will be more open to the wonders of technology, Singularity and radical openness of Transhumanism if you present its benefits while also acknowledging how we must overcome obstacles like societal reform in the near-future. Many Transhumanists have lost sight of the near future, are too overly optimistic, spending too much time 20 years from now instead of acknowledging what needs to be done today before then.

In conclusion, I believe more people will accept these visions as mainstream. While a Singularity may or may not occur within our lifetime, the benefit in supporting its visions outweigh any plausible argument against it. We have already begun to see amazing advances in medicine as a result of technology. It is only right to assume we will see even more. While not all Transhumanist messages are equally effective, I believe Extropianism is the most pragmatic. Most people ultimately agree ending human suffering and promoting longer, healthier lives (if not indefinite lives) is a good thing. And you can present that argument far easier by loosing any religious subtext, set time-line, and overly optimistic predictions that gloss over near-future philosophical and societal problems.

And I should also note that I don’ think ALL Singularitarians or Transhumanists have religious subtext, set-time line ideas or overly optomistic views of the future — just that many do, enough to make a difference. I should note that I consider myself both an Extropist and Singularitarian.

Ultimately, It’s fun to predict the future — hey that’s why we consider ourselves futurists. But we also need to remember that the only way we can do that is by working together. And to get more people together for the future we must learn to moderate and control the very important message today.

 

 

 

 

My Struggle of Finally Getting Film Diplomacy

Film Diplomacy: In a nutshell, watch your mouth…and act the consummate professional at ALL times. You see, it’s very important (in any business) to act cordially. And in spite of your desire to voice your honest opinion or make a joke, you have to learn to offer it in a way that is as neutral and polite a way as possible.

This was a major challenge for me. And sometimes, it still is. At the end of the day, I pride myself on being somewhat of a jester. I see the irony in things, I see things for what they are and am not afraid to say it. But you CANNOT do this in the entertainment industry or even in most powerful businesses in general.

So some background on my smart-assery (not a word, but I’m totally using it anyways!)

I wrote a Twitter account which initially only one other person knew my identity. Today a handful do, including some people in the industry I greatly respect. Now, while I pride myself on being a consummate professional, I also love to joke around, and sometimes as all jokesters do, I cross the line. And since my account was ghost written (for the most part) I took liberties with it on a few occasions. And today I no longer do. Why? Film diplomacy.

Today, I had so many good joke ideas. Especially following the story about a film finance executive who got forced out because of a bunch of explicit photos with an escort. I couldn’t help but think of the irony in that. I couldn’t help but think of the volume of escorts used in business in general & think that the decision to force someone out for sleeping with an escort was on its face ridiculous (and likely in many business circles — not just entertainment — hypocritical). Hey prostitution is among the worlds oldest professions — BUT YOU CAN’T SAY ALL THAT (I kinda just did didn’t I — exception for examples sake) 😛

Then I realized this story about the executive and his escort had another side to it; The side where image and perception is reality. This executive ultimately acted in a manner unbecoming of a professional. The same can be said of those who lack film diplomacy. Look at the end of the day, I could write an essay of jokes about this incident. And I hope someone like Louis CK does. But at the end of the day, I am not Louis CK. And while being the Jester is fun and all, the Court Jester doesn’t have much respect — unless you’re on the level of Louis CK. If you’re not, your perception is that of someone who isn’t very serious — whether fair or not.

I had to make the professional decision, do I want to be perceived to be the big-mouth Court Jester or the King’s Guard? The Kings Guard of course! At the end of the day, some things for professional reasons are better left unsaid. If I am to ever one day represent the interests of a film professional (especially as a personal assistant or creative development team member — which is my goal) I cannot say as I please. Even if something is said as a joke, it’s probably not funny. And even if something is said on a ghost account — someone can figure you out. You are upholding an image, and often not just your own. So unless you’re looking to uphold the image as a Jester — don’t say it. Sssh, zip it, sit on your hands, count to ten, just don’t say it!

Even famous comedians aren’t absolved from this diplomacy rule. Just last year Seth MacFarland hosted the Oscars. Many in the industry thought his performance and mockery of the industry crossed a line and bordered on tasteless. Yet, most audiences at home loved it according to critical reception. I really think America likes laughing at Hollywood — just like they like laughing at Washington. It’s somewhat of a middle class tradition — the type of entertainment that has sold gossip magazines and launched insult comics careers.

But in the end, if you are in the industry, all that laughing and mockery goes out the window. You are expected to act cordially at all times. Even if you don’t like something, finding something positive to say about it is vastly superior than the bitter truth. Even if you don’t like someone, you shake their hand and smile. Even if you thought that movie was the worst you’ve ever seen — you say what few things you liked about it, not what you didn’t. And even when you don’t want to help that smart ass friend of a friend looking for NY studio space because they royally screwed you over in LA, you help them, because you act cordial AT ALL TIMES. In fact, you may even have to buy that person coffee and not complain and tell them why you love their project. Yup. That’s how it goes. And if you can’t do all that, find another business.

Look, I don’t like this rule very much, but at the end of the day I am willing to censor myself for the sake of my prospective career. I love finding the irony in things and acting like a general smart ass, but that youthful ignorance sometimes has to take a back seat in adulthood. At the end of the day, the King’s Guard has a lot more respect than the Court Jester — even if he does make people laugh.

The Future Of: Entertainment

In my first post on The Internet Economy I noted how we are witnessing the Industrial Revolution of our era. At few points in the history of man can one point to a single invention which has had such a profound effect on the economy, and society as a whole. The result is that technology has become a greater part of our lives. We are constantly connected via smartphones, conducting commerce online and even our consumption of things like entertainment increasingly comes from online entrepreneurs and creators. The internet has created a paradigm shift in economic, social and political power.

Considering both pros and cons, I want to know how this technology will specifically affect us as a future society born out of the “internet economy.” Using hard science and empirical analysis versus assumptions, I will take a look at key areas to address what I believe will be plausible outcomes in the near and even distant future.

The result of my research will become a non-fiction work in progress:

THE FUTURE OF SERIES.

———————————————————–

THE FUTURE OF ENTERTAINMENT

About a week ago, George Lucas and Steven Spielberg gave a controversial prediction to a USC Film School panel. They stated that they believe the future of film and entertainment will be a form of internet television, or video on demand (VOD). And despite the fears of exhibitors, data has already begun to prove them right.

Theatrical release titles are down 60%. Movie ticket prices are up significantly, and this past month, Regal Cinemas says another 4% increase is on the horizon. Moviegoers however continue to crowd theaters despite a lower selection and expensive tickets. And that is because studios have restricted their release slate to familiar titles theater goers will spend money on.

With the cost of a movie ticket so high, most Americans are not willing to take a chance on a title they don’t know, or with stars that do not ring a bell. A friend of mine recently said “you used to be able to take a girl to dinner and a movie — now its one or the other.”

Studios know this is the case, and they want you to choose the movie. So they rely heavily on the ‘tent pole strategy,’ whereby they hope a major summer event film, or blockbuster release, will uphold them financially for the year. Then they can offset the cost of smaller budget, riskier projects with their earnings. But with smaller films attracting less and less of an audience, and with films like Iron Man doing so well, studios are expanding the tent pole strategy. And the result has been record profits for them.

However, Spielberg and Lucas argue that this is only an interim strategy. As people become sick of pre-sold franchises, they will seek out alternative options instead — like Netflix, Independent Content via Internet TV or Video on Demand options. As studios put all their eggs in one carton, it will only take one flop to break all the eggs. Lucas said this is very likely to occur, and it could spell financial doom for those involved.

Another angle to look at is that originality and creativity is loosing out under this tent pole strategy. Fewer and fewer spec scripts are being bought, and even less are being produced. And while there’s no shortage of beautiful films out there, super hero films and sequels are the vast majority of heavily marketed, wide released projects. Hollywood acknowledges this, but they have to be somewhat conservative financially in this economic climate and thus turn away a lot of potentially wonderful projects.

VOD release of these potentially wonderful projects offer a great financial alternative to expensive blockbuster films. Less popular titles in particular could do very well in a VOD environment. Studios can restrict blockbusters to theatrical releases, and reserve smaller titles for a VOD release slate. And unlike the old crappy straight to DVD options, these films can still be good selections. This is likely the result, argue the two film icons — an expensive, event style Broadway release, where a film like Iron Man will cost $150 and stay in theaters for a year — and maybe an indie film or mid-budget action flick will go to VOD for a subscription fee or individually less than the price of a movie ticket today.

So VOD can solve the creativity issue by acting as an off-Broadway alternative. People are more willing to take a chance on something less known if it costs less money. That mid-budget action film sounds more appealing to a movie-goer when its a Saturday night and you’re short on cash but still want to see something new. The one-size fits all ticket plan has absolutely slaughtered original ideas and films because its hard to justify $12-$14 base price tickets for a period piece or non-super hero action film. By testing these films in a cheaper, VOD environment, you have a greater chance people will see the film. The budget will also reflect this reality. And much like Off-Broadway, if they are successful, they could see a theatrical release based on demand.

Disney among others already plan to release select titles on VOD while the title is still in theaters to gauge consumer interest in this idea. Eventually, I believe this will become the norm. It is inevitable based on the cost structure of the business. Independent creators of content have shown they can effectively compete with audiences attention for much less than a $100 million dollar picture. Many even wind up striking movie deals of their own based off of their success. While they may never compete with Iron Man, they do compete with other smaller titles and options. So while exhibitors fear this move to VOD, it makes sense for studios to gamble with the idea of cheaper selections and VOD options to compete along those lines as well.

Ultimately though, I believe the studio system will implode in the interim as Lucas and Spielberg predicted. While I don’t see them imploding financially, I do see them fundamentally altering their way of doing business around the implosion of the old structure. In fact, prior to the filmmakers panel discussion, I noted just that in my earlier post on the internet economy.

Because of this new economy, content creators won’t even need the same structure as we move more heavily in the direction of a VOD future. While studios financing arrangements and distribution deals will remain attractive for the foreseeable future, this will not remain the case. Distribution deals make sense with regard to wide theatrical releases and subsequent windows of distribution, but what happens when we are watching movies almost exclusively from our in-home devices? OR what happens when we discover virtual reality, and have an augmented, truly 3-Dimensional, rather 4-Dimensional movie-going experience?

The players will have to change, if not change themselves. Studios will be reserved to the financing process and handling of larger, more exclusive releases. The majority of the future of entertainment will be personal, intimate consumption with some blockbuster exceptions. Netflix has already shown it can both produce and distribute its own content, free from the traditional semi-vertically integrated business structure of old. More and more independent production companies will be able to handle the entire process themselves without studio input (apart from financing and marketing if they so choose). The internet will largely rule out the middle man from the selection of what films do and do not get made. What gets made will be determined from a different set of rules and consumer behavior — one that rests almost entirely online.

Independent producers of content will share/distribute via the VOD platform. And it will be just as profitable, if not more as the content will be able to reach a wider audience. Content saturation won’t be an issue because it will still be geared towards a specific demographic, reaching highly specific, algorithmic results. And as technology like virtual reality and even avatars become a possibility, our movie going experience will again evolve to even greater heights and creative possibilities.

In the interim, exhibitors will likely fight this inevitable change, as they have with Disney’s experiment. This will continue to happen just as the agrarian farmers fought industrialization. Their livelihood depends on the current structure. But the current structure has seen its run in its current format. In the near future many will still resort to seeing event-type movies like Iron Man 3 in theaters. But those who want more options for less will seek out a separate price category VOD option. And when virtual reality hits, theaters may become totally obsolete, provided they don’t find a way to offer an immersive experience collectively like sharing theater space.

I believe the future of entertainment will be wonderful. It will again restore power to creatives, writers whose ideas would often not stand a chance in the current conservative economic climate of the industry. And I believe most in Hollywood would very much like to see that happen provided they can still profit from it; which they will. So right now, more studios and exhibitors can acknowledge this coming trend, or fight this. I suspect most will try and test it. And if they start to accept it as a strong possibility like Disney and others seem to, they may stand a chance at survival as we move more towards VOD and eventually immersive, virtual movie-experiences. Otherwise, if they don’t, the internet economy will likely move on with out them.

— Next ‘Future Of’ Post — The Future Of: Medicine (A future trip to the doctor)

A Summary of Today’s NSA Hearings: Lies, Damn Lies & Government Statistics

At the height of the perpetual War on Terror, former president George W. Bush famously declared “you’re either with us or against us.” So ladies and gentlemen, the terrorists are back, and today the NSA is here to keep you safe against those awful bad guys. And if you’re not a supporter of the NSA, the government believes simply that you’re against US interests and have taken their cause of defending NSA snooping back to Capitol Hill for another round of hearings.

The statements in defense of the NSA program by its director Keith Alexander range from completely unsupportable to outright lies. I’ve compiled a list of some of the most memorable statements of the day along with why they’re ridiculous and why you shouldn’t lend them any support or legitimacy. So sound the Looney Tunes music, here we go!

NSA head Keith Alexander is back folks…and he is armed with updated information on —  BAD GUYS! Initially Mr. Alexander claimed that

“The NSA program has foiled dozens of terror plots.”

When begged for more information regarding specifics, he claimed

“That information is classified but we are working on getting more specifics.”

Classified, right. So we have no real proof this is the case outside this guys “trust us” argument. So if Mr. Alexander said “I’ve seen literally dozens of pink unicorns…but that information is classified…we’re working on more info,” we should just trust him?

Well, lets give this guy the benefit of the doubt. Surely today the infamous head of the NSA has more specifics. WELL YES…kind of. Today we’ve learned more about how much the NSA has done! Apparently, according to Alexander:

“The NSA has foiled 50 terrorist plots.”

WOW! Fifty. I guess when the NSA guys went back to base and decided to look at the “specifics” they found 30 more cases that they initially discounted a week ago. So 50 pink unicorns, do we have details, you know the specifics you promised.

Kind of:

The NSA head alleges they were able to break up the NYC Subway plot of the infamous Najibullah Zazi……..by monitoring his communications with Al-Qaeda in……….. Yemen.

Wonderful job….no seriously, good job. So why are you monitoring domestic communications of non-international phone calls again? Why are you using the FOREIGN Intelligence Surveillance Act to collect info domestically on citizens in bulk?

Look, if someone is making phone calls to known areas of terrorism, there should be a follow up. But all these suspicious cases can be easily dealt with by the use of Constitutional, individual warrants and not a drag net, secret policy of recording all American’s phone and internet records. Last I checked I’ve never called Yemen, or even the Middle East. So who cares about my phone’s metadata or what I am emailing?

As Billy Mays says, WAIT THERE’S MORE!:

The government goes on to also include a case where the New York Stock Exchange was a target in the early stages of an attack originating in…….Kansas City. A-HA! A domestic attack, see, the NSA does do good!…Not so much, this guy was also on the phone with….. Yemen.

But what about the guy who was “snooping” in San Diego, clearly an evil-doer plotter? He was a domestic bad guy! Nope, he was on the phone with………. Somalia.

OK, OK, but what about the Boston Bombers — That was a domestic attack! Sort of, they were from Chechnya. But again, that attack was successful.

That’s like the NSA saying, “well you see this guy here, Mohamed Attah, he flew a hijacked airplane into a building in NYC that killed 3000 people on 9/11/01…here we have a surveillance video of him 9/12/01!”

The attack was carried out despite surveillance in place. WHY? Because sophisticated terrorists aren’t using technological communications to talk with one another. And in the unsophisticated attack on Boston, communications were in place, including a Facebook page full of Jihadi imagery. And despite the NSA program in place, the attack was still carried out, killing 3 Americans and one Chinese student.

So how much freedom are we willing to sacrifice for security? In the end as Benjamin Franklin stated, we will have neither.

NOT IN ONE INSTANCE has the NSA today shown that it’s vast surveillance program on innocent US Citizens kept us safe. They have failed even in the slightest to connect the NSA program in question to the foiled attacks mentioned, since they have offered up no evidence outside their sworn testimony. And if National Security head James Clapper’s lying to Congress about the NSA months ago is any indication, these people aren’t very good at telling the truth, certainly not WHOLE truths.

And adding insult to injury, Obama finally gave a lengthy interview on the hearings, where he stated:

“The NSA is transparent.”

NO, it is not. The government is lying to your faces folks. And if you’re too ignorant to see it, I hope you don’t vote. And for those who do vote, and recognize the NSA is basically about as transparent as a brick wall, call/email your Senator/Congressman (available on their website) and tell them to stop watching us and while you’re at it tell them to support Bernie Sanders bill “ROPA: Restore Our Privacy Act” and get this out of control surveillance state back within Constitutional confinement along with FISA restored to its original lawful powers.

Why its Not Just 4th Amendment the NSA Threatens

Since the fallout from the NSA scandal, millions of Americans have begun to question their trust and faith in government insofar as their constitutional rights are concerned. In my previous article I went into great detail about how the Fourth Amendment is violated by the NSA and furthermore how National Security programs have successfully avoided having to face judicial scrutiny over such programs. So what other rights are under fire from the framework the NSA has created?

Ultimately the fear of repression from NSA-type programs will lead to mass self-censorship. Recently, The Huffington Post revealed another lesser known document published by the Electronic Privacy Information Center, EPIC, of the governments surveillance activities: the monitoring of non-terrorist groups and political persons (You can and should read their pdf report here).

The report is not talking about the IRS scandal, or the monitoring of reporters. It focuses on the way Homeland Security views “anti-government” groups. Groups like Libertarians, The Occupy Movement and various civil liberties minded organizations that reject the current, unaccountable government.

The government believes these groups are a threat because they “reflect adversely” on the government. Through a Freedom of Information Act request, EPIC reported the government was using key words to monitor the activity of such groups online. A House Hearing was conducted on the matter at EPIC’s request. During the hearing, several members of Congress were shocked to know just how vague the criteria for monitoring citizens truly was.

Now add up all of the incidents to date: The IRS, AP reporters being monitored, certain political groups being watched and scrutinized, and now the NSA surveillance apparatus. The ultimate effect will be and already has become self-censorship.

The Supreme Court has long taken an “absolutist” approach to the First Amendment; arguably the most important, and thus the first.

The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Now, its clear that presently, the government has not instituted any known program which directly violates the First Amendment. However, the government in the post 9-11 era has laid the framework for a totalitarian state. While we may not become such a government, people recognize the framework, and are rightfully concerned.

People are monitoring their key words, just like the government. People are self-censoring out of fear they may be recorded and have their words used against them in the future — whether by the NSA, or even just Homeland Security.

The ultimate result? Millions of creative, engaging minds are having second thoughts about the content they wish to create. A student who wants to protest his government; redress his grievances and assemble peaceably to protest a decade of war stays home. A man who is peaceably inspired by the words of the Prophet Mohammed has second thoughts about converting to a religion that is associated with “key words” of his government’s war on terror. A reporter gets a confidential informant to leak documents which violate American’s rights, and maybe second guesses on whether to publish, fearing imprisonment.

That last example has already happened. Congressman Peter King (R-NY) has openly called for the prosecution of journalists who have exposed the governments wanton abuse of the Bill of Rights! Despite not revealing any information that would directly put people in harms way, or harm National Security, Peter King has called for the prosecution of Glenn Greenwald.

The government doesn’t need to pass any law restricting the First Amendment. People have already censored themselves out of fear. Why haven’t more NSA leaks come forward when we know they exist? What is the CIA doing to Snowden’s girlfriend? Where is Edward Snowden? Has the fear driven agenda, bullying tactics and abuse lead to self censorship in this case too?

The NSA scandal has far reaching consequences. While its certainly an assault on the Fourth Amendment, it has ultimately become an indirect assault on the First. The government has us all afraid, stifling speech without any law passed. And when Congressmen are now willing to prosecute journalists despite their freedom of press, we will prepare to directly assault the First. The fact you have done nothing wrong and are not concerned does not absolve the government from wrongdoing. If you turn a blind eye to the framework of a National Security obsessed quasi Police state today, history has shown you will be sorry tomorrow.

A Constitutional Dilemma: A History of the 4th Amendment

Presently, the debate over the Constitutionality of the NSA surveillance program continues to rage on. Many incorrectly believe that if you have not done anything wrong, you do not need to be concerned. The more politically savvy among us recognize the program to be a grave concern to privacy rights, specifically those guaranteed by the 4th Amendment to the United States Constitution. Of the politically savvy who have recognized the issue as a privacy violation, many have since gone on to sue the Obama Administration, Verizon and the Department of Justice over the program.

While not an attorney, my educational background is indeed in US Law. I have begun to do more research on the NSA case(s), how it (they) may proceed in the Federal Courts and have also done additional research into the current jurisprudence regarding the Fourth Amendment. What I will look at in this article is how 4th Amendment jurisprudence has evolved and how a 4th Amendment question might be answered if any NSA case were to make it to the Supreme Court.

HISTORY OF THE FOURTH AMENDMENT

The Fourth Amendment is written as follows in our Bill of Rights section of the United States Constitution:

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

So how does this language affect the present NSA case? Before one can answer that, one must first understand how each part of the Fourth Amendment has evolved in US law; focusing on what constitutes a reasonable search, a reasonable expectation of privacy, the warrant process and what types of evidence can be legally searched and seized.

In Katz v. The United States (1967) the Supreme Court defined what constitutes a ‘search’ and reasonable expectation of privacy.

Katz was making a phone call from a telephone booth about the transfer of illegal gambling earnings. The FBI had wiretapped the phone booth on its exterior and later used the evidence from the wiretapped conversation to convict Katz of illegal gambling. Katz and his attorney argued that the FBI violated his Fourth Amendment right to privacy since there was no warrant to wiretap the booth based on probable cause and Mr. Katz had a reasonable expectation of privacy in the phone booth.

To answer the Constitutional questions presented, the Court focused on what constituted a reasonable expectation of privacy and what legally constituted a search.

According to the Majority Opinion, a ‘search’ is where 1.) a person expects privacy in the thing searched and 2.) That the search is reasonable.

The Court held that an invasion of privacy had indeed occurred and that Mr. Katz when placing the phone call had a reasonable expectation of privacy inside the booth, and that the booth did not constitute a public place. More specifically, Justice Stewart noted “a conversation is protected from unreasonable search and seizure under the Fourth Amendment if it is made with a ‘reasonable expectation of privacy.'”

Also held within this case; wiretapping is legally considered a form of search or act of intrusion, and a physical search/intrusion is not necessary to impede someone’s Fourth Amendment right to privacy.

Katz set the groundwork for cases to come later by ruling that a search/intrusion can occur electronically, violating Fourth Amendment rights. Additionally, Katz also ruled on what constituted a reasonable search, resting on whether or not the individual had a reasonable expectation of privacy.

But what about when a government agent, like the NSA, wants to search without a warrant regardless of privacy expectations? What are the Constitutional guidelines for circumstances in which a law enforcement mechanism might conduct a search without a warrant as in the NSA’s surveillance of Verizon customers?

The jurisprudence on searches conducted without a warrant take its judicial philosophy from several cases. From these cases, the Supreme Court has defined some exceptions to the warrant requirement for the following: 1. Consent, 2. Plain view, 3. Exigent circumstance. Since they are not relevant to this case, I will not focus on the exemptions related to open fields, around the home, motor vehicle and border searches.

1. Consent — The Court has traditionally held in many cases that a warrant or probable cause is not required if a party or person consents to a search.

2. Plain View — A law enforcement agent may seize an object that is in ‘plain view.’ The Plain View Doctrine stipulates that an item is in Plain View under the following guidelines according to Horton v. California (1990): a.) The agent must be lawfully present at the place where the evidence can be plainly viewed, b.) the agent must have a lawful right of access to the object, and c.) the incriminating character of the object must be “immediately apparent.”

3.) Exigent Circumstances: According to  United States v. Smith (10th Circ., 1986): “Exigent circumstances arise when the law enforcement agent has reasonable grounds to believe that there is an immediate need to protect their lives, the lives of others, their property, or that of others, and that the search is not motivated by an intent to seize evidence, and there is some reasonable basis, to associate an emergency with the area or place to be searched.”

In concluding the Fourth Amendment jurisprudence, as related to the NSA case;

1. A search can include electronic methods of intrusion.

2. If there is a reasonable expectation of privacy, a subject cannot be legally searched absent a warrant based on probable cause or probable cause.

3. Exceptions to warrants can include consent to search; where a document pertinent to the suspicion of a crime is in plain view; Or, where exigent circumstance permit decisive action resulting in the collection of evidence absent a warrant or probable cause.

APPLICATIONS TO THE PRESENT NSA CASES

Having provided a background to the interpretation of the Fourth Amendment it would seem reasonable to conclude that millions of Americans have had their Fourth Amendment rights violated by ongoing NSA surveillance programs. However, that does not infer any legal standing to sue.

What will likely occur, as has happened in the past with similar cases against domestic spying, concerned privacy advocates and citizens alike will struggle to prove in a court of law that an injury has occurred as a result.

In the instance of the Verizon class action lawsuit against the Obama Administration, they will have to prove that the violation of their Fourth Amendment rights by the NSA surveillance program caused an injury. An injury as defined by NOLO’s Plain English Law Dictionary is a “Harm done to a person by the acts or omissions of another. Injury may be physical or may involve damage to reputation, loss of a legal right, or breach of a contract.”

In the case of the NSA, the petitioners will argue the loss of a legal right. The reason this will be hard to prove in a court of law is that the violation has occurred under a classified environment. Although the documents were leaked to the public, the documents do not become “declassified.” Absent hard evidence, such as documents proving the existence, the government can claim the program does not exist as described. They are under no legal obligation to admit to such programs, and given the classified nature of the documents prompting the lawsuit, are legally required NOT to acknowledge them.

LIKELY LEGAL OUTCOME OF THE NSA PROGRAM

The case will likely be struck down given the lack of supportable evidence to prove an injury has occurred. The counsel will likely appeal the decision, where an Appellate Court will choose whether to accept such a petition on a case by case basis. Given the national scope of the issue, the case could wind up being referred to the Supreme Court.

However, similar cases have not been ruled upon there, simply because they depend upon evidence that is classified information pertinent to National Security. The SCOTUS is likely to reject hearing this case, and any like it, because it presents what is known legally under Constitutional Law as a ‘Political Question.’

A ‘Political Question‘ is defined narrowly. However, in general it is held under Baker v. Carr (1962) that the “courts should not hear cases which deal directly with issues that Constitution makes the sole responsibility of the other branches of government.”

The Court is likely to rule that the NSA is given its powers from the laws including both The FISA Act of 1978 as amended in 2008 and 2012 and more generally under the Patriot Act of 2001 and as renewed in 2011. The Court under its current ideological makeup is likely to consider any purported violation of rights a political question better answered by the Congress which created them.

While one would hope this is the time for the Court to institute legal checks and balances regarding our Fourth Amendment rights, it would seem that based on legal precedent and the present ideological makeup of the Supreme Court (Neo-Conservative slant) it would be unlikely.

CONCLUSION/WHAT CAN WE DO

If the Court decides that the NSA case presents a non-justiciable political question, it will become up to the people to provoke a change. Any legislator, whether a Senator or Congressman, who votes for a law which violates a Constitutional right must not be voted for.

You can see a list of Congresspersons in both Houses who voted to renew the Patriot Act including the controversial Section 215 here

You can see a list of Senators who voted for FISA here

You can see a list of Housemembers who voted for FISA here

DO NOT RE-ELECT THESE MEMBERS OF EITHER HOUSE.

We must ultimately do our own homework. Stop supporting politicians who do not protect your civil liberties. While you may not have done anything wrong, the NSA has introduced the framework for a Totalitarian State through unconstitutional policies. With that in mind, we should be doing everything we can to reduce such a framework.

Start supporting civil liberties minded candidates for office, the NAY votes under both bills. Also do your research on candidates for the presidency. It is the president who selects members to the Supreme Court forming its ideology.

Beyond average citizens, corporations who receive these requests should not comply with them. A corporation like Google has much more legal standing to sue the Federal Government over NSA-type programs. They can prove more than a “loss of rights” related to compliance with such surveillance requests but also injuries to its economic well-being and at this point, its reputation.

If the country can stop aligning itself with partisan ideology and instead focus on broader issues of civil liberties, we may stop this dangerous trend going forward in American history.

The United States Constitution begins:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

It’s time to again turn these principles and once again establish a more perfect union.

Can We Trust Cloud Computing Given NSA and PRISM?

Following revelations from the Guardian and Washington Post that the National Security Agency has backdoor access to major company servers, many have questioned their level of trust. It is now well known that PRISM participants include Apple, Google and Microsoft. So can we trust these service providers with our information stored in the cloud? I contend that we cannot.

Today Apple’s WWDC conference kicked off. Highlighted in the event were new and improved cloud computing capabilities on iOS. Apple also announced the addition of iWorks to the iCloud, which will function similar to an office suite on your iOS devices. Apple’s cloud based computing service can presently store everything from your credit cards, website logins, passwords and WiFi access points to various downloads, apps and music files. Now with improvements to iWorks, your pages, keynotes and documents can also exist in the cloud.

Its no question that in the era of smartphones and tablet computing across multiple devices, the option of cloud computing is very attractive. Presently, the average American likely owns at least two if not three devices with many different files on each. The ability to store your music on an iPhone and then have it in your iTunes library on your MacBook Pro without needing to manually upload is very convenient, and I frequently use and enjoy the feature.

But what is the cost of such a convenience? While I certainly appreciate the convenience of all my information stored on an encrypted Apple server within their ecosystem, I am a bit nervous of it in light of PRISM.

Apple to date maintains that it has not given the government backdoor access to its servers.

However, Apple cannot legally commit to knowledge of such a program. And The Guardian Story seems to contradict their claims.

President Barack Obama signed Executive Order 13526, which stipulates that even if classified information is revealed, it does not mean that such information is now declassified. PRISM is a Top Secret program, highly classified. Section 215 of the Patriot Act and measures in the FISA Act specifically bar a company from revealing the nature of a classified surveillance request, including PRISM.

So if I cannot trust Apple to not relay my information to warrantless government data requests, why should I trust my information in their iCloud servers, even if they are encrypted? I shouldn’t, and nor should you.

Unfortunately, as participants in the Apple ecosystem, or if on Android, the Android ecosystem, we do not have a choice but to use their cloud services. The phones and tablets we use all rely on cloud computing.

It is thus up to the companies themselves to better safeguard their users privacy. I contend that the only way to challenge these unjust laws is for the companies to not honor National Security Letters and NSA requests.

In the interim, we all must assume these companies are conspiring with the government to honor NSA information requests. We cannot continue to place our trust in companies that comply with unjust laws. And above all, as technology continues to advance at an unprecedented rate, we must continue to put pressure on these companies and our legislature to better understand and get serious about these privacy concerns.

 

Why Our Privacy May Rest with the Data Collectors Themselves

Right on the heels of the leaked NSA order to Verizon Wireless, additional NSA programs were revealed. Notably, the PRISM program. Similar to the NSA Verizon Order, the PRISM program under the FISA Act of 2008 issues orders to companies to place surveillance on users for the collection of information pertinent to National Security. Revealed to have been subpenaed are Apple, Facebook, Google, Microsoft, YouTube and AOL to name a few.

Unlike before 2008, the government did not need to link their surveillance request to a particular facility or target associated with terrorism. The FISA Act of 2008 redefined ‘facility’ to include any “massive data sets” — so the internet as a whole given the way it works. In a nut shell, FISA grants the government access to survey ANY electronic medium without probable cause, burden of proof or court review. Additionally, the 2008 Act granted companies immunity if they voluntarily complied with surveillance requests.

So with all these companies in the hot seat for abiding by these NSA requests, how are they responding given the rightful outrage of their users?

Facebook said:

When Facebook is asked for data or information about specific individuals, we carefully scrutinize any such request for compliance with all applicable laws, and provide information only to the extent required by law.

Right – so the FISA Act of 2008 and the Patriot Act are laws so you are complying with them.

NEXT!

Apple said:

We do not provide any government agency with direct access to our servers, and any government agency requesting customer data must get a court order.

Oh, like the Court order that came from the secretive top floor of the Justice Department…you know, the Foreign Intelligence Surveillance Court — the one only the government can appear before, and only the government can read the classified opinions? Right, I guess that does constitute a court order.

NEXT!

As you can see the companies that are supposed to defend us from these NSA requests, or the companies through carefully worded PR statements that pretend to defend us, simply don’t.

In fact, they all joined the PRISM surveillance program voluntarily in the following order:

1. Microsoft 2. Yahoo 3. Google (Don’t Be Evil – haha) 4. Facebook 5. PalTalk 6. AOL 7. Skype 8. YouTube and last but not least 9. Apple.

Senators on the Intelligence Committee warned in 2012 of the more recent dangerous FISA loopholes that enhanced the 2008 Act, Mark Udall (D-CO) stated:

As it is written, there is nothing to prohibit the intelligence community from searching through a pile of communications, which may have been incidentally or accidentally been collected without a warrant, to deliberately search for the phone calls or e-mails of specific Americans

He along with several colleagues are bound by classified rules. But he and others encouraged Americans to be weary and to protest.

Of course, we don’t even know we are being watched most of the time, as it is done in secrecy. We know now because the program has been leaked. We have no control over whether our ISP, software, email or telecom provider leaks our data. But those companies do!

I maintain that the easiest way to stop these programs is for the companies to simply not comply with requests. Yes, the government may go after them — auditing them, failing to reward them with sweet lobbying concessions in laws that affect their bottom line…but so what! What’s to say the government when it gets to a certain point will be there for them tomorrow? NOTHING.

While all companies routinely invade our privacy for profit, its nothing like the NSA monitoring. In fact, Google’s leadership has been at the forefront of privacy law. They have vocally opposed such laws that bind them with cooperation of such security requests against their “principles.” So its simple — stand up for your principles. A company like Google is in the perfect position to do this. It is vast, extremely wealthy and very technologically savvy to challenge this kind of program.

A company like Google needs to simply not comply with an NSA request and force this issue into the court system. Someone at Google, using a confidentiality arrangement needs to flip the tables. Start releasing all NSA requests and refuse to answer them. Start exposing the government’s programs.

Of course, then the FBI will get involved and Google will get in trouble. But the likely scenario is the Tech-Titan gets this issue to go to a REAL court. Appeal all decisions all the way up to the Supreme Court. Require the laws be followed and the government to actually meet a Burden of Proof to require such data requests. I guarantee this program wouldn’t stand up in court, that’s why they created a secret court to circumvent the process.

All it takes is one courageous company to say NO. And while I understand it will bring some unpleasantness in the form of government harassment, I know once one stood up, the rest of Silicon Valley would too. And I know that if the issue went to court, the people would win.

I will leave one with the words of Dr. Martin Luther King, Jr. who said

One has a moral responsibility to disobey unjust laws…An individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for the law

So if you were Google, or someone at Apple or another Tech Giant, would you have the courage to follow in the words of Doctor King and listen to your conscience? Would you stand for freedom, and stop with these requests you know in your conscience are wrong? IF you could alter the destination of American history by standing up for what is right today, not what is easy, for what is hard on the road for a better tomorrow, would you?

Ultimately Dr. King paid the ultimate price for his adherence to his conscious and was assassinated. Several arrests, court cases and marches for justice and standing up as an inspiration to a movement that fought unjust laws — and a people were free, despite his ultimate sacrifice. Today his views are the mainstream and he is revered as an American icon and hero.

Will you stand with the principles of Dr. King?

The Pentagon Papers, Bradley Manning & The NSA Order: Evolution of Justice in America

Malibu, California, 1970 — Former RAND Defense Department employee Daniel Elsberg, and his young children would spend days taking in the sun on the beach. Afterwards, under the silence of night, Elsberg would then work with his children and a friend inside the bungalow, copying mountains of secretive documents which history would come to call The Pentagon Papers.

In total, over the course of the summer of 1970, Elsberg copied close to 7000 pages of secretive documents he obtained illegally as a DoD employee. The documents contained a study conducted on the Vietnam War from roughly 1964-1968. The study concluded the war to be a failure and was locked inside RAND safes, highly classified material.

In late 1970-71, Daniel Elsberg went all over Washington to various Senators, Nixon staffers and NSA advisers — no one wanted anything to do with what he had unturned. So in February 1971, he met with NY Times editor Neil Sheehan. They agreed to a secret drop, and in March of 1971, Elsberg dropped 13 volumes of the study to Sheehan.

The NY Times began publication of the Papers on June 13, 1971. The Times legal staff warned against publication — but they did so anyways. Within days, the Nixon administration successfully sought an injunction against the Times to cease publication of the documents under an exemption of the First Amendment for reasons of National Security. They also moved against Elsberg and his co-conspirator Anthony Russo under the Espionage Act of 1917.

Ultimately, the Times appealed the injunction and the case went right up to the Supreme Court. In a 6-3 decision, the Court argued the government had not met a “sufficient burden of proof” to place an injunction against the paper. The government failed to prove that the publication of the papers were a threat to National Security.

Days before the SCOTUS decision, Elsberg turned himself over to federal prosecutors. His trial would commence in 1973, facing up to 115 years in prison if convicted. During the trial, it was revealed to the court that the FBI illegally wire-tapped Elsberg, and also illegally entered his home during the trial, failing to turn over such evidence obtained to the defense. Given the gross misconduct by the FBI and several federal prosecutors, Elsberg and Russo were dismissed of all charges against them on May 11, 1973.

FLASH FORWARD to 2010.

PFC. Bradley Manning serving in Iraq released to website Wikileaks close to 500,000 documents of the US involvement in Iraq and Afghanistan, including the 2007 Baghdad Airstrike and and airstrikes in Afghanistan which killed civilians in a reckless manner.

Despite the government failing once again on the burden of proof; that Manning’s release harmed national security or put anyone or any soldier at risk, he was charged with the ultra-serious crime of treason. The charge ‘aiding the enemy’ if convicted carries a life sentence.

While Manning awaited trial, in 2011, he was held in solitary confinement, prompting outrage from civil groups. In January 2013 he plead guilty to less serious charges carrying a sentence of 16 years. As of June 3, he is on trial appealing the treason charge against him.

Right now the Governments main argument against him is that his release of these documents incited the ‘Arab Spring’ protests. If that sounds like a straw-man argument, then you’re right on. The Arab Spring was not aimed at American foreign policy or the United States. The Arab Spring was a series of pro-democracy movements aimed at overthrowing existing power structures in various countries like Egypt and Tunisia.

However, a lot has changed since Elsberg’s trial. After the Patriot Act, the government no longer needed as strict a burden of proof to conduct what in 1973 according to Federal court transcripts amounted to “offend a sense of justice.” The same offense is now common federal activity given the more recent amendments to the Patriot Act, notably 50 USC section 1861. Under this section, for any reason deemed a concern to national security, and without the need of burden of proof or prior review by the courts, the Feds can issue a National Security Letter to subpoena a business for records of surveillance. The business is required to remain silent and cannot tell someone they are being placed under surveillance.

NSA Order

June 5, 2013 — Glenn Greenwald of the Guardian UK published a leaked Verizon National Security Letter ordering the release of records of its users to the Feds. The article documented just how serious the domestic surveillance issue in America is. Several senators including Bernie Sanders (D-VT) and Mark Udall (D-CO) have said this is just the tip of the ice berg. The senators cannot reveal much as they are bound by classified rules, but encouraged Americans to protest the Feds handling of vague National Security concerns.

Conclusion

What should scare everyone, is that in the most notable case of treason in US history, The Pentagon Papers, the accused were let off of all charges because the FBI acted in a gross miscarriage of justice, violating 4th Amendment rights. Today the Patriot Act circumvents not only the governments burden of proof in concerns of National Security but also extends to the circumvention of Constitutional Rights.

The vague and often motiveless pursuit of domestic surveillance by the federal government should concern every American. As technology advances, this surveillance can and will only get worse. We have come to a defining point in American history where every American regardless of political opinion needs to ask themselves what went so wrong with our values in the 40 years since 1973? The evolution of justice in America has taken a startling turn towards Orwellian outcomes. And now is the time to prevent our values from getting even worse long before the time we reach 2053.