Big Brother Is Here… Now. Today.
When George Orwell wrote 1984, I doubt he ever had a hint as to how completely his portrayal of Big Brother as being everywhere all the time, seeing and hearing everything a person did and said, would become reality.
But Orwell certainly never foresaw how Big Business would become a partner in Big Brother’s surveillance activities, whether voluntarily or by government coersion.
This extraordinary real-life authoritarian evolution leads to another extraordinary event:
I actually agree with positions recently espoused
by Rush Limbaugh and by the John Birch Society!
I begin the background of the issue by reporting on the involuntary participation of business in eavesdropping on the communications of employees:
U.S. companies involved in federal litigation will now need to track e-mails and instant messages generated by employees to comply with new rules that take effect Friday. Legal experts say federal and state courts are already requiring relevant electronic documents to be produced during discovery, but the new rules will codify the practice.
The new rules come in as amendments to the Federal Rules of Civil Procedure [PDF], the basic guidelines that govern civil suits. In other words, no shredding of paper — and no deleting e-mails — when there’s a likelihood of legal action. If requested, companies must be able to hand over those e-records.
That also applies to video and voice messages.
Though it’s hard to come up with exact figures, analysts say it will cost businesses billions of dollars to make the required changes to their record-keeping procedures. Not making the changes could be even more costly. Companies that don’t comply could face multimillion-dollar fines.
Woods Abbott, senior manager of legal operations at Raytheon, said most companies by now are keenly aware of the importance of document handling, in the wake of serious abuses in recent years. “Right now, getting on the bad side of a court could mean getting on the bad side of a federal government agency, or possibly Wall Street,” he said.
Although the new rules may seem obvious, they have grown out of landmark cases in which judges have hammered companies that were reckless or negligent in preserving electronic data:
•In a case where billionaire investor Ron Perelman alleged he was misled by an investment bank, a judge in Florida came down hard on Morgan Stanley last year. The judge, Elizabeth Maas, determined that the financial giant provided false and incomplete information about what electronic archives pertaining to the Perelman case were available. The ruling led to an initial judgment of $1.4 billion in damages against Morgan Stanley.
“Companies are conscious of the Morgan Stanley debacle,” says Marie Charlotte Patterson, the firm’s vice president of market strategy. “Some say, ‘There but for the grace of God go I.’ ”
•In Zubulake v. UBS Warburg, a woman won $29 million in damages last year after evidence showed that bank employees had deleted e-mails that could have been relevant to her lawsuit.
Those cases and others led a team of trial attorneys to devise new rules for the preservation of electronic information. After being vetted by several review panels, including federal appellate judges and the U.S. Supreme Court, the amended rules are now scheduled to take effect. “For the first time, the rules have now officially identified a class of evidence, electronically stored information,” says Thomas Bookwalter, a compliance adviser. “You’ve got to preserve this data.”
In addition to e-mail, companies will need to know about things more difficult to track, like digital photos of work sites on employee cell phones and information on removable memory cards.
The new rules make it more important for companies to know what electronic information they have and where, especially because of a provision that requires lawyers to provide information much earlier than before on where their clients’ data are stored and how accessible they are.
Analysts, according to The AP, predict that in our current age, producing digital information during court proceedings will become an increasing requirement. Court cases that deal with situations such as patent infringements, copyright protection as well as those dealing with criminal activities will certainly benefit from the new rule. The change however, will cost companies money to implement.
But not every company is seeing this development as an expense. Some are greeting it as a means of increased income:
Companies that help businesses track and search their e-mails and other electronic data are experiencing a surge of interest in the wake of federal rule changes that clarify requirements to produce such evidence in lawsuits.
Analysts say that currently, the “e-discovery” industry generates roughly $1.6-billion annually and they predict that with the new federal rule, that figure could double in 2007.
Such companies aren’t the only beneficiaries:
Companies that are involved in cases from now on can expect their legal fees to increase as well. Lawyers will now have to sift through more information to find relevant evidence.
There are other losers veside those companies forced into becoming spies:
Privacy activists and purists
are already expressing their concerns.
And this is where I agree with something Rush Limbaugh said about these new rules during his December 1, 2006 show [emphases added]:
Now, you might think, “This doesn’t apply to me. I don’t have to worry about that.” [Y]ou’re going to have to start paying attention to this.
If your company gets involved in a lawsuit (and let’s face it, most companies are targeted for lawsuits every day) and your area in the company is touched on by the lawsuit, anything you have written — e-mail, instant message, photos — is subject to discovery, and your employer now has to keep all of that.
So any of you using an e-mail address that is tied to the company for which you work, and if you’re using it at work or at home…
I would bet you if you’re doing work
on your own personal e-mail account,
that will be subject, too.
Pictures on your cell phone? Let’s say you work for an architect, and you go out and you take pictures of the project under construction on your cell phone. Your company’s going to have to find a way to keep that. Anything you write or say as an employee, as a business…
[E]verything you write; every phone call you make, you never know who’s listening in. You’re going to have to make sure that you never say anything that you wouldn’t want published in a magazine or a newspaper, that you wouldn’t want read back to you as you’re a witness on the stand in a trial…
You know what you’re going to have to do, ladies and gentlemen? Every time you type an e-mail, you are going to have to assume the worst.
Assume that everybody in the country will someday be able to read it.
You’re going to have to compose that e-mail or not write that e-mail on that basis — and further, if that doesn’t scare you, then do this:
As you’re composing your e-mails and your chats, and you’re going back and forth with friends, even if it has nothing to do with business, just make sure that you never write anything that you wouldn’t want read back to you while you sit on the stand, in court, in front of a jury.
While you’re at it, you might want to be aware that the FBI can use your cell phone as a remote microphone, so you might want to watch what you say - even if it’s turned off:
The technique is called a “roving bug” and was approved by top U.S. Department of Justice officials for use against members of a New York organized crime family. U.S. District Judge Lewis Kaplan ruled that the “roving bug” was legal because federal wiretapping law is broad enough to permit eavesdropping even of conversations that take place near a suspect’s cell phone.
Kaplan’s opinion said that the eavesdropping technique
“functioned whether the phone was powered on or off.”
Nextel and Samsung handsets and the Motorola Razr are especially vulnerable to software downloads that activate their microphones, said James Atkinson, a counter-surveillance consultant who has worked closely with government agencies. “They can be remotely accessed and made to transmit room audio all the time,” he said. “You can do that without having physical access to the phone.”
Cell phone companies don’t even have to be involved, although you should be aware that Verizon admits publicly that:
[Verizon Wireless] “works closely with law enforcement and public safety officials. When presented with legally authorized orders, we assist law enforcement in every way possible.”
No other cellular company responded so forthrightly, most ignoring requests for comment. I recommend assuming that they share Verizon’s attitude. Under the various laws, they would have no choice.
The worst aspect of this intrusion into your privacy is that, thanks to the marvels of modern technology, one isn’t likely to know that one is even surveilled:
Because modern handsets are miniature computers, downloaded software could modify the usual interface that always displays when a call is in progress. The spyware could then place a call to the FBI and activate the microphone–all without the owner knowing it happened. (The FBI declined to comment.)
“If a phone has in fact been modified to act as a bug, the only way to counteract that is to either have a bugsweeper follow you around 24-7, which is not practical, or to peel the battery off the phone,” Atkinson said. Security-conscious corporate executives routinely remove the batteries from their cell phones, he added.
And how would they know unless they were warned about this “feature”?
It appears that they were - by the very government that won’t warn the rest of us:
[T]he technique has been discussed in security circles for years.
The U.S. Commerce Department’s security office warns that “a cellular telephone can be turned into a microphone and transmitter for the purpose of listening to conversations in the vicinity of the phone.” An article in the Financial Times last year said mobile providers can “remotely install a piece of software on to any handset, without the owner’s knowledge, which will activate the microphone even when its owner is not making a call.”
A BBC article from 2004 reported that intelligence agencies routinely employ the remote-activiation method. “A mobile sitting on the desk of a politician or businessman can act as a powerful, undetectable bug,” the article said, “enabling them to be activated at a later date to pick up sounds even when the receiver is down.”
And for those of you who have camera phones:
A report last year said Spanish authorities had detained a man who write a Trojan horse that secretly activated a computer’s video camera and forwarded him the recordings.
If a hacker can do it, do you doubt that law enforcement agencies will as well?
And don’t think that driving about in your vehicle to have a private chat makes you immune either:
A 2003 lawsuit revealed that the FBI was able to surreptitiously turn on the built-in microphones in automotive systems like General Motors’ OnStar to snoop on passengers’ conversations. When FBI agents remotely activated the system and were listening in, passengers in the vehicle could not tell that their conversations were being monitored.
In fact, even writing on one’s computer, as I’m now doing with this post, isn’t snoop-secure:
[T]he FBI found itself thwarted [by] Nicodemo S. Scarfo, the alleged mastermind of a loan shark operation in New Jersey, when Scarfo used Pretty Good Privacy software (PGP) to encode confidential business data. So with a judge’s approval, FBI agents repeatedly snuck into Scarfo’s business to plant a keystroke logger and monitor its output.
This is just the tip of the iceberg that the Good Ship of State American Liberty is about to ram into at full speed. Below the surface is more plans to separate you from your freedom.
Just the other day, Newt Gingrich said November 27,2006 while addressing the annual Loeb First Amendment Dinner in Manchester, N.H.: Free Speech Should Be Curtailed To Fight Terrorism.
This is where I stand with the John Birch Society: Newt Gingrich is Un-American.
Newt Gingrich, the proto-commissar who gave us NAFTA, now proposes to turn the U.S. into a police state. Gingrich, who is mulling a run for the presidency in 2008, said that freedom of speech should be abandoned in order to fight terrorism.
There is absolutely no question that American government has a duty, and a Constitutional duty at that, to defend the nation. That includes not only the physical defense of people and property from harm, but also the defense of the natural, inalienable rights of Americans. Would government be turned to the purposes proposed by Gingrich, the power of the law would be used to destroy those very rights the government was created to protect.
It doesn’t make any difference if we lose the country through external attack
or because, in fear, we surrendered our freedoms.
So as you can see, today is quite the rare day. Hades has gone into a hard freeze with my agreement with Rush and the Birchers.
The only question remaining: is it too late to do anything about the fascist subversion of America?