Tuesday, December 24, 2013

A Christmas Eve Message

We left for the long drive north mid afternoon. Bejeweled trees sparkled in the sunlight. We drove past fields of diamonds, the five of us playing trivia games and listening to marvelous stories from This American Life. 

As the sun sank lower in the sky, a rainbow framed the sunset. Gradually, the sky turned from brilliant blue to inky black, the kind of dark you only get once you're away from the city. Venus hung low on the horizon, shining brightly like a beacon in the moonless sky, as it may have on this night some two thousand years ago. 

"I pray my wish will come true

For my child and your child too

They'll see the day of glory

See the day when men of good will

Live in peace, live in peace again"

To all my friends - stop, look, listen, feel. You are surrounded by love and beauty. Take the time to let it in. 

Tuesday, December 17, 2013

Interesting bits from the NSA metadata court decision

Yesterday, a US District Court judge released a decision in a motion for a preliminary injunction concerning the NSA's collection of telephone metadata.

A preliminary injunction seeks a court order requiring someone to do something, or not do something, in the period between the commencement of a lawsuit and the final ruling in the lawsuit. Under the law applicable in the NSA case, an injunction is only available where a party can prove that they are likely to win at trial, and that they will suffer irreparable harm prior to trial if the order is not granted. Irreparable harm is generally considered to be harm that can not be compensated with monetary damages. The court also must consider the balance between the harm that will be done to the person seeking the injunction, and the harm that may be suffered by the party against whom the injunction is sought, as there is the possibility that the party seeking the injunction could ultimately lose at trial. Finally, the court must consider the broader public interest.

In this case, the two plaintiffs asked for a court order removing their information from the NSA database, and requiring the NSA to stop collecting metadata with respect to their phone numbers.

Much has been written about the court's finding on the first part of the test: that the NSA program likely violates the constitution. However, there are some other bits of the decision on the harm that I found interesting.

Judge Leon found that if in fact the program did violate the Constitution, it was prima facie causing irreparable harm. When he then considered the harm that may be caused to the government if he granted the injunction, he wrote:

The Government responds that the public's interest in combating terrorism is of paramount importance … - a proposition that I accept without question. But the Government offers no real explanation as to how granting relief to these plaintiffs would be detrimental to that interest. Instead, the Government says that it will be burdensome to comply with any order that requires the NSA to remove plaintiffs from its database. Of course, the public has no interest in saving the Government from the burdens of complying with the Constitution! Then, the Government frets that such an order "could ultimately have a degrading effect on the utility of the program if an injunction in this case precipitated successful requests for such relief by other litigants. … For reasons already explained, I am not convinced at this point in the litigation that the NSA's database has ever truly served the purpose of rapidly identifying terrorists in time-sensitive investigations, and so I am certainly not convinced that the removal of two individuals from the database will "degrade" the program in any meaningful sense. I will leave it to other judges to decide how to handle any future litigation in their courts. 

The judge granted the injunction, but stayed the operation of his order until the appeals process can be completed. I have some trouble reconciling the judge finding that the plaintiffs will suffer "irreparable harm" if the order is not granted, and then deciding that the enforcement of the order can wait. However, the judge concluded by telling the government to immediately begin preparing to remove the plaintiffs from the database. He told them that if they were not successful on appeal, his order would go into effect immediately. He warned them that if they came back after a failed appeal seeking time to implement his order, he would be very unhappy:

Suffice it to say, requesting further time to comply with this order months from now will not be well received and could result in collateral sanctions.

Sunday, December 15, 2013

Who owns leaked information?

There is an interesting debate going on regarding the Edward Snowden leaks: who should control leaked information? When is information of such obvious public importance is available, should it be made broadly available in its raw form, along the Wiki Leaks model, or should it be given to trusted journalists to write about, as Snowden did? Is the leaked information a public resource, or a private asset to be exploited for profit?

Mark Ames on Pando questioned what he saw as the "privatization" of the Snowden leaks when billionaire eBay co-founder Pierre Omidyar set up a new media venture, and hired Glenn Greenwald and Laura Poitras, thereby, according to Ames, effectively obtaining control of the Snowden documents.

Glenn Greenwald has posted a lengthy response that raises a number of important points.

While both the Pando post and Greenwald's response raise issues about the motives of those who control information, an additional issue for me is the ability of those controlling the information to know what is and isn't relevant, and to connect the dots. Where documents are given to trusted journalists, even a person with the purest of motives must review huge amounts of data to determine what is worthy of release and reporting. They will come across hundreds, perhaps thousands, of names, events, places, and programs. The good ones will try to consult experts to research what they see, but the job can be overwhelming. Any person who thinks they can read such a huge trove of information about the secretive world of international surveillance and understand all the nuance, all the connections, all the unspoken, between the lines meaning is either naive or arrogant. But they are undoubtedly wrong.

When I was litigating large cases, I'd often have thousands of documents to review. I'd read them, and then read them again, and again. I'd go over them with my clients, with experts, with other lawyers. Each time, I'd learn some new fact, that would lead to another line of inquiry. A name would mean nothing to me, until someone pointed out "oh, that person is married to X, who is the CEO of Y". I would never have known that. It's simply not possible for one person or a few people to fully investigate everything in every document. It's often not even possible to know who to ask.

These considerations lead, perhaps, to the solution of crowd sourcing. The broad release of raw documents allows anyone interested to read them, making connections using their own background knowledge. It may well be that there is no one person in the world who can see the whole picture - some have some information, others have other information, and the true picture doesn't appear until all the puzzle pieces are assembled. But Greenwald gives several reasons why an unfiltered document dump may be unwise, and possibly dangerous, and those reasons cannot be easily dismissed.

The job Greenwald has taken on is an enormous one, and important. From what I know of Greenwald, I respect his integrity, his ability, and his courage. In general, I think I've been happy with the way Greenwald has handled the Snowden leaks. But I can't know for sure, and that makes me uneasy. I don't know what he hasn't reported on. I don't know why he has chosen not to report on those things. Is it because he's determined that the information is too sensitive? Is it because it would implicate someone who he is friends with? Is it because he's holding it back for a book deal? Is it because he doesn't know enough of the background to understand its significance? Even when everyone is acting in good faith, with all due diligence, there are doubtless important things that are missed. And what happens the next time, when leaked documents are made available to someone whose ability and ethics may be wanting?

With sensitive subjects like the NSA, we cannot rely on other traditional institutions to protect our interests. Government officials will not tell us what they are doing - indeed, they will sometimes actively lie even to their own legislators. Freedom of Information requests will be denied. Courts issue secret orders in closed sessions. Without leaks, we would remain ignorant of what is done by our governments, in our name. So the leak, and the whistleblower, have become essential to the functioning of democracy.

Ultimately, we are left to trust and hope that those with the leaked information will be capable and willing to determine what's important and report on it. But with information as vital to civil rights and democracy as the Snowden leaks, is trust and hope enough?

A few more thoughts on Mandela

Thomas Friedman wrote a great piece in the New York Times titled Why Mandela was Unique. In it, he writes that one of Mandela's greatest strengths was his willingness to tell his base that they were wrong. In today's politics, pandering to the base is a given. Political adversaries are objects of scorn and derision, not potential allies. The battle is not for the nation, but for that tiny percentage of swing voters who decide an election. US reconciliation with Cuba, for example, is impossible, not because it is a wrong policy, or one that most Americans vehemently oppose. It is impossible because Florida is an important swing state in presidential elections, and a vocal group of anti-Castro activists live in Florida. So while the Cold War is over in most of the world, the people of Cuba continue to suffer under US economic sanctions. No presidential candidate will risk a small shift in electoral results in Florida. And so the morality of continued Cuban sanctions is never seriously examined.

Friedman's piece recounts a scene from the film Invictus. One other scene from that film that Friedman did not refer to summed up political courage and leadership well. Rugby was a favourite sport of white South Africans, and the national team, the Springboks, had come to be seen as a symbol of white South Africa, and by extension, a symbol of Apartheid. After the ANC won the election, and Mandela became president, the black dominated national sports commission decided to change the team's name and colours, to erase that past. Mandela knew that would only serve to divide the nation. He went to the meeting to try to persuade them to allow the Springboks to keep their name and colours. One of his closest political advisors believed that his intervention would be a big mistake.
Brenda Mazibuko: You're risking your political capital, you're risking your future as our leader.
Nelson Mandela: The day I am afraid to do that is the day I am no longer fit to lead.
Can you imagine any of our political leaders today saying that, and meaning it?

Sunday, December 8, 2013

I was wrong

It was one of those moments that burns into your consciousness, taking up a place of permanence. It was November, 1986. I was in a huge, sweaty crowd at Toronto's Maple Leaf Gardens, watching a truly brilliant performance. Peter Gabriel's So tour, supported by Senegal's Youssou N'Dour, remains one of the very best of the many, many concerts I've seen in my lifetime. But it was the last few minutes that fixed that night in my mind forever.

I was 21, and had just started law school. For the past several years, nightly newscasts had featured horrifying pictures from South Africa. Huge crowds of black protesters being attacked by water cannons, rubber bullets, and tear gas. Tan coloured armoured personnel carriers moving into the crowds. The protesters, from their deplorable living conditions in shantytowns like Soweto were placing their lives on the line to overthrow the immorality of Apartheid. Nelson Mandela was still in prison, and other people and groups were "banned", a practice intended to mute opposition by threat. Notwithstanding the oppression, the protesters were growing in number, and looking increasingly determined. South Africa's white minority was acting more and more like a frightened animal, backed into a corner - fearing for its survival, unpredictable, well armed, and dangerous.

In reality, the racial struggle had been going on for decades, but as is often the case, the rest of the world had only recently begun to really take notice of the horror and injustice. We've always had an ability to ignore atrocities when they were happening to others, far away, whose lives were so different from ours that we were able to maintain a psychological distance. A family losing their house to fire in our town could rally our community to help. But people being massacred half a world away for no reason other than their desire not to be excluded because of the colour of their skin - that evoked a frown, a slight shaking of the head, as we turned the page of the newspaper to check on last night's hockey scores.

When Peter Gabriel came on for his encore, he brought Youssou N'Dour and his large African band with him, and launched into a powerful, poignant rendition of the anthemic Biko. The song was a tribute to South African anti-Apartheid leader Stephen Biko, who was beaten to death by police in 1977. But that night, it was also a call to action. Thousands sang along, chanting Biko's name, and creating a shared emotion, a shared experience. It was one of those moments that music can create, like the singing of a national anthem after an Olympic win, or the singing of a hymn at a funeral - the music binding together a collective emotion that could not be expressed in any other way. When the song came to an end, white lights suddenly turned on the crowd, and Gabriel said "The rest is up to you".

I felt like I had been punched in the chest. The air had been sucked out of my lungs, and I stood there, silent, for a long time as the crowd filed out of the arena. But for me, it wasn't a feeling of hope, empowerment, or determination. It was dread. And despair. For at that moment, it hit me more powerfully than ever before: South Africa was on the brink of inevitable genocide. I was certain that before Apartheid came to an end, there would be massive bloodshed. The blacks had the numbers, but the whites had the weapons. It was like watching bullets flying through the air in slow motion, waiting for them to kill, knowing there was nothing you could do to stop it.

Over the next four years, South African president PW Botha declared states of emergency over most of the country, trying desperately to quell the growing civil unrest. Thousands were detained, questioned, tortured. Media was censored. There were stories of South Africa developing nuclear weapons, perhaps as a deterrent to possible international military intervention. The country's economy was increasingly under pressure from growing economic sanctions. I was proud that Canada was a moral leader in urging the international community to implement stricter anti-Apartheid sanctions.

The government worked covertly to create divisions between the various anti-Apartheid factions, pushing them to internal violence. Horrific images of the "necklace" emerged - a brutal form of murder where a person had a gasoline filled tire placed around their neck, which was lit to burn them alive.

The internal violence and international sanctions were taking their toll on white South Africa. Botha made token gestures, repealing some Apartheid laws, but he backed away from substantial reforms. He must have recognized that Apartheid was doomed, but a way out seemed impossible.

In February, 1989, Botha resigned after having suffered a stroke. F.W. de Klerk became president later that year, and announced the repeal of several Apartheid laws in a speech to parliament in February, 1990. On February 11, 1990, after 27 years of imprisonment, Nelson Mandela was freed.

Four months after Mandela left prison a free man, he visited Canada. On June 19, 1990, I left my office in downtown Toronto and made my way to Queen's Park. There, on the lawn with 30,000 others, I got to hear Mandela speak. The crowd was festive. Mandela and his wife, Winnie, received a hero's welcome. Words from the stage were frequently drowned out by chants of "Mandela! Mandela!". He thanked the people of Canada for their support, and said "We are on the threshold of major changes in South Africa." Mandela exuded hope and optimism, though he recognized the struggle was far from over. Things were fragile.

South Africa remained mired in violence. Negotiations were underway to end Apartheid and create a truly democratic state, with voting rights for all. In this phase, however, there were many factions, from whites who resisted any negotiations, to various black groups who were jockeying for power once democracy was in place. Mandela had to manage the widely disparate views, and keep the movement going forward, while the threat of widespread violence loomed large.

On April 27, 1994, 20 million South Africans cast their vote in South Africa's first multi-racial election. Mandela's African National Congress won, and on May 10, 1994, Nelson Mandela was sworn in as President. April 27 is now known as Freedom Day in South Africa, and is celebrated as a public holiday each year.

Though Mandela had every reason to seek retribution for the decades of oppression he and his people had suffered, he turned instead to the goals of Truth and Reconciliation. Mandela said
"Resentment is like drinking poison and then hoping it will kill your enemies." 
He recognized that an uneasy political truce was not enough for South Africa - real peace would come only from a population truly united. Contrition and forgiveness were the only way forward.

Much has been written of Mandela - of his grace, of his humanity, of the strength to endure 27 years in prison, of his unwavering commitment to the cause of equality and freedom despite the tremendous personal toll it took. To me, though, what set him apart was his view of equality. He recognized that there was no "us and them", just us. In his autobiography, Mandela wrote

"No one is born hating another person because of the colour of his skin, or his background, or his religion. People must learn to hate, and if they can learn to hate, they can be taught to love, for love comes more naturally to the human heart than its opposite.”

What made his success possible was knowing that he was his oppressor's equal, but also that they were his. He knew that those that had caused so much suffering were capable of goodness, that at their core, they'd prefer peace to violence, tolerance to intolerance, partnership to war. Leon Wessels, an Apartheid era South African cabinet minister, told the Truth and Reconciliation Commission
"I am now more convinced than ever that apartheid was a terrible mistake that blighted our land. South Africans did not listen to the laughing and the crying of each other. I am sorry that I had been so hard of hearing for so long." 
Mandela knew Apartheid was wrong, and he trusted that even his enemies would come to believe that basic truth. It was his belief in the fundamental goodness of people, despite having witnessed so much cruelty, that made Mandela so extraordinary.

That night at Maple Leaf Gardens, as the crowd sang Biko, I was convinced that a peaceful end to Apartheid was impossible. But as Mandela said "It always seems impossible until it's done." Never have I been so glad to have been proven wrong.

Good night, Madiba. You've earned your rest. You've earned your peace.


Usually, my random thoughts simply spew onto Twitter. Having a 140 character limit is actually a good thing, as it forces me to be concise, and spares my followers from the long, inane ranting I'm prone to.

However, sometimes I have a story to tell that just won't fit into 140 characters, and the serial multi-tweet is annoying. It's not really the way explain something technical, where details matter. And the forced brevity can often blunt the nuance, leading to misunderstanding.

So, I've set up this blog for those times when I have something to say that just won't fit in 140 characters. I realize, of course, that most of the time, what I write here will be read by almost no one, but that's okay. It'll be off my chest, and no longer occupying the increasingly limited space on my mental hard drive. (note to self: brain defrag is overdue. Also, empty the trash.)