The Clear and Present Danger of Cyber Warfare

Malicious hacking and denial of service attacks are potent weapons of twenty-first century warfare. Recently, Russian and Georgian hackers attacked vital websites in each other’s countries as troops fought on the ground. They shut down government portals. Hackers defaced government websites (e.g., routing visitors to the Georgian President’s website to a site that portrayed him as a modern-day Hitler). Although cyber attackers have not yet significantly disrupted or destroyed government systems in the United States, they have stolen sensitive information about weapon systems from the U.S. government and its defense contractors. Cyber attackers invaded the State Department’s highly sensitive Bureau of Intelligence and Research, posing a risk to CIA operatives in embassies around the world. Online espionage is a serious problem—attacks on military networks were up 55% last year. U.S. officials reportedly believe the attacks come from the Chinese government.

The United States seems to appreciate the dangers of cyber warfare. According to Business Week, the U.S. is engaged in a classified operation to detect, track, and disarm intrusions on the government’s most critical networks. President Bush signed an order known as the Cyber Initiative to overhaul the government’s cyber defenses at a cost in the tens of billions. However, in testimony before the Senate Armed Services Committee, National Intelligence Director McConnell asserted that the “federal government is not well protected.” He warned that attackers can enter information systems and destroy data and systems related to the “money supply, electric-power distribution, and transportation sequencing.”

Despite attention to the matter in the U.S., the better part of the world does not take cyber warfare seriously, leaving their networks increasingly vulnerable to attack. This is not unusual—few appreciated the importance and potency of propaganda campaigns at the beginning of World War II until the power of such propaganda became readily apparent and deeply rooted. Broad attention should be paid to cyber attacks. Online sabotage compounds the dangers inherent in national conflicts. Nations may be unable to decelerate tensions through online communications. Cyber attacks convey inaccurate information that can inflame public option, limiting leaders’ political room to defuse tensions. The dangers of cyber warfare thus should not under-estimated.

Posted by Danielle Citron at 04:58 PM | Comments (1) | TrackBack

The New Foreign Intelligence Surveillance Act

I have been following the new FISA Amendments Act of 2008, but I have refrained from chiming in, as many others have been doing terrific blogging on the issue. Of particular note:

* David Kris, A Guide to the New FISA Bill (I, II, III)
* Wes Alwan, Understanding Recent Changes to FISA — A Visual Guide (Flowchart)
* Orin Kerr, The New FISA Law and the Misleading Media Coverage of It
* Marty Lederman, The Privacy-Protective Components of the New FISA Law
* Jack Balkin, The New FISA Law and the Construction of the National Surveillance State

I've been particularly dismayed at the Democrats' strategy in dealing with the FISA Amendments. Why bother to try to negotiate a FISA compromise with a presidential administration that has shown nothing but contempt for the law to begin with? The Bush Administration, instead of going to Congress and requesting a change in the FISA, went ahead and blatantly violated that law. And the Administration said it would continue to violate the law, so what's the pressing need to fix the FISA, especially when negotiating with an Administration that only will meet you about 2% of the way? Why force Obama to make a difficult choice about voting on the law, risking either looking weak on security or like a sell-out? Why not wait a few months and then pass a law with a new administration, one that will hopefully be easier to negotiate with? And how is this law any more binding on a president who says he has the right to violate a law based on his Article II powers?

Future presidents can learn a lot from all this -- do exactly what the Bush Administration did! If the law holds you back, don't first go to Congress and try to work something out. Secretly violate that law, and then when you get caught, staunchly demand that Congress change the law to your liking and then immunize any company that might have illegally cooperated with you. That's the lesson. You spit in Congress's face, and they'll give you what you want.

The past eight years have witnessed a dramatic expansion of Executive Branch power, with a rather anemic push-back from the Legislative and Judicial Branches. We have extensive surveillance on a mass scale by agencies with hardly any public scrutiny, operating mostly in secret, with very limited judicial oversight, and also with very minimal legislative oversight. Most citizens know little about what is going on, and it will be difficult for them to find out, since everything is kept so secret. Secrecy and accountability rarely go well together. The telecomm lawsuits were at least one way that citizens could demand some information and accountability, but now that avenue appears to be shut down significantly with the retroactive immunity grant. There appear to be fewer ways for the individual citizen or citizen advocacy groups to ensure accountability of the government in the context of national security.

That's the direction we're heading in -- more surveillance, more systemic government monitoring and data mining, and minimal oversight and accountability -- with most of the oversight being very general, not particularly rigorous, and nearly always secret -- and with the public being almost completely shut out of the process. But don't worry, you shouldn't get too upset about all this. You probably won't know much about it. They'll keep the dirty details from you, because what you don't know can't hurt you.

Posted by Daniel J. Solove at 08:31 PM | Comments (14) | TrackBack

The Privacy Paradox

Over at the New York Times's Bits blog, Brad Stone writes:

Researchers call this the privacy paradox: normally sane people have inconsistent and contradictory impulses and opinions when it comes to their safeguarding their own private information.

Now some new research is beginning to document and quantify the privacy paradox. In a talk presented at the Security and Human Behavior Workshop here in Boston this week, Carnegie Mellon behavioral economist George Loewenstein previewed a soon-to-be-published research study he conducted with two colleagues.

Their findings: Our privacy principles are wobbly. We are more or less likely to open up depending on who is asking, how they ask and in what context.

In one interesting experiment, students who were provided strong promises of confidentiality were less forthcoming about personal details than students who weren't provided such promises. The researchers explained this behavior as based on the fact that when an issue is raised in people's minds, they think about it more and are likely to be more concerned about it. Ironically, promising people that their privacy will be protected actually makes them think more about the dangers of their privacy being breached.

There is indeed a growing body of research that examines why people frequently state in polls that they value privacy highly yet in practice trade their privacy away for trinkets or minor increases in convenience. The work of Professor Alessandro Acquisti explores some of the reasons why people might not make rational decisions regarding privacy despite their desire to protect it.

I have also written about this in my new book, UNDERSTANDING PRIVACY (Harvard University Press, May 2008). In particular, I argue that looking at expectations of privacy is the wrong approach toward understanding privacy:

If a more empirical approach to determining reasonable expectations of privacy were employed, how should the analysis be carried out? Reasonable expectations could be established by taking a poll. But there are several difficulties with such an approach. First, should the poll be local or national or worldwide? Different communities will likely differ in their expectations of privacy. Second, people’s stated preferences often differ from their actions. Economists Alessandro Acquisti and Jens Grossklags observe that “recent surveys, anecdotal evidence, and experiments have highlighted an apparent dichotomy between privacy attitudes and actual behavior. . . . [I]ndividuals are willing to trade privacy for convenience or to bargain the release of personal information in exchange for relatively small rewards.” This disjunction leads Strahilevitz to argue that what people say means less than what they do. “Behavioral data,” he contends, “is thus preferable to survey data in privacy.”

But care must be used in interpreting behavior because several factors can affect people’s decisions about privacy. Acquisti and Grossklags point to the problem of information asymmetries, when people lack adequate knowledge of how their personal information will be used, and bounded rationality, when people have difficulty applying what they know to complex situations. Some privacy problems shape behavior. People often surrender personal data to companies because they perceive that they do not have much choice. They might also do so because they lack knowledge about the potential future uses of the information. Part of the privacy problem in these cases involves people’s limited bargaining power respecting privacy and inability to assess the privacy risks. Thus looking at people’s behavior might present a skewed picture of societal expectations of privacy.

Posted by Daniel J. Solove at 01:04 PM | Comments (5) | TrackBack

U.S. Government Finally Recognizes that Nelson Mandela Isn't a Terrorist

From CNN:

Former South African President Nelson Mandela is to be removed from U.S. terrorism watch lists under a bill President Bush signed Tuesday.

Mandela and other members of the African National Congress have been on the list because of their fight against South Africa's apartheid regime, which gave way to majority rule in 1994.

Apartheid was the nation's system of legalized racial segregation that was enforced by the National Party government between 1948 and 1994.

The bill gives the State Department and the Homeland Security Department the authority to waive restrictions against ANC members.

"He had no place on our government's terror watch list, and I'm pleased to see this bill finally become law," said Sen. John Kerry of Massachusetts.

South Africa's apartheid government had designated the ANC a terrorist organization during the group's decades-long struggle against whites-only rule. Its members have been barred from receiving U.S. visas without special permission, and the bill Bush signed will lift that requirement, State Department spokesman Tom Casey said.

This demonstrates that greater scrutiny must be placed on the decisions about who gets placed on terrorist watch lists and other government blacklists. It took a long time for Nelson Mandela to get off the list, and I wonder whether anybody who isn't of Mandela's stature stands a chance getting off the list. The story also raises questions about just who is designated a terrorist. There must be greater accountability in creating these lists.

Posted by Daniel J. Solove at 08:19 PM | Comments (5) | TrackBack

The New TSA Identification Requirement

The TSA, in its never-ending quest to inconvenience us without keeping us safe, has once again changed its rules on identification. According to the old rule, if you didn't provide ID at the airport, you would be subjected to secondary screening. Now, you may be denied the right to fly entirely. According to the TSA:

Beginning Saturday, June 21, 2008 passengers that willfully refuse to provide identification at security checkpoint will be denied access to the secure area of airports. This change will apply exclusively to individuals that simply refuse to provide any identification or assist transportation security officers in ascertaining their identity.

This new procedure will not affect passengers that may have misplaced, lost or otherwise do not have ID but are cooperative with officers. Cooperative passengers without ID may be subjected to additional screening protocols, including enhanced physical screening, enhanced carry-on and/or checked baggage screening, interviews with behavior detection or law enforcement officers and other measures.

What this rule basically seems to be doing is trying to prevent people who have a conscientious objection to presenting ID from being able to fly. For example, John Gilmore refused to present his ID and challenged the TSA identification requirement in federal court. He lost in the 9th Circuit, which held that he could have undergone secondary screening or walked away -- he wasn't forced to present his ID.

I'm one who routinely presents my ID to the TSA officials at the airport. I think that the ID requirement is stupid, but I just want to get to my plane and not be hassled. But others, for reasons of conscience or protest, do not want to present their ID at the airport. This new TSA rule strikes me as problematic from a First Amendment standpoint, since it seems to be designed to target those who don't present ID for expressive reasons. As such, this new TSA requirement might be a form of viewpoint discrimination.

Although the First Amendment doesn't restrict the TSA from requiring IDs in order to board an airplane, it does restrict using the ID requirement to penalize people who engage in expressive conduct. Because the TSA requirement seems to be targeted to this kind of expressive conduct (hence the exception for lost or stolen IDs), it may run afoul of the First Amendment.

I haven't fully analyzed this argument, so I'm just throwing it out there. Do you think that there is a First Amendment problem with the new TSA rule?

Hat tip: Bruce Schneier, who writes: "I don't think any further proof is needed that the ID requirement has nothing to do with security, and everything to do with control." Indeed, this rule will allow TSA officials who don't like you to have even greater power. If you lose your ID, you better hope that the TSA officials believe you, take pity on you, and otherwise think you're being cooperative. It's entirely up to them!

Posted by Daniel J. Solove at 12:04 AM | Comments (32) | TrackBack

My New Book, Understanding Privacy

I am very happy to announce the publication of my new book, UNDERSTANDING PRIVACY (Harvard University Press, May 2008). There has been a longstanding struggle to understand what "privacy" means and why it is valuable. Professor Arthur Miller once wrote that privacy is "exasperatingly vague and evanescent." In this book, I aim to develop a clear and accessible theory of privacy, one that will provide useful guidance for law and policy. From the book jacket:

Privacy is one of the most important concepts of our time, yet it is also one of the most elusive. As rapidly changing technology makes information more and more available, scholars, activists, and policymakers have struggled to define privacy, with many conceding that the task is virtually impossible.

In this concise and lucid book, Daniel J. Solove offers a comprehensive overview of the difficulties involved in discussions of privacy and ultimately provides a provocative resolution. He argues that no single definition can be workable, but rather that there are multiple forms of privacy, related to one another by family resemblances. His theory bridges cultural differences and addresses historical changes in views on privacy. Drawing on a broad array of interdisciplinary sources, Solove sets forth a framework for understanding privacy that provides clear, practical guidance for engaging with relevant issues.

Understanding Privacy will be an essential introduction to long-standing debates and an invaluable resource for crafting laws and policies about surveillance, data mining, identity theft, state involvement in reproductive and marital decisions, and other pressing contemporary matters concerning privacy.

Here's a brief summary of Understanding Privacy. Chapter 1 (available on SSRN) introduces the basic ideas of the book. Chapter 2 builds upon my article Conceptualizing Privacy, 90 Cal. L. Rev. 1087 (2002), surveying and critiquing existing theories of privacy. Chapter 3 contains an extensive discussion (mostly new material) explaining why I chose the approach toward theorizing privacy that I did, and why I rejected many other potential alternatives. It examines how a theory of privacy should account for cultural and historical variation yet avoid being too local in perspective. This chapter also explores why a theory of privacy should avoid being too general or too contextual. I draw significantly from historical examples to illustrate my points. I also discuss why a theory of privacy shouldn't focus on the nature of the information, the individual's preferences, or reasonable expectations of privacy. Chapter 4 consists of new material discussing the value of privacy. Chapter 5 builds on my article, A Taxonomy of Privacy, 154 U. Pa. L.. Rev. 477 (2006). I've updated the taxonomy in the book, and I've added a lot of new material about how my theory of privacy interfaces not only with US law, but with the privacy law of many other countries. Finally, Chapter 6 consists of new material exploring the consequences and applications of my theory and examining the nature of privacy harms.

Understanding Privacy is much broader than The Digital Person and The Future of Reputation. Whereas these other two books examined specific privacy problems, Understanding Privacy is a general theory of privacy, and I hope it will be relevant and useful in a wide range of issues and debates.

For more information about the book, please visit its website.

Posted by Daniel J. Solove at 12:03 AM | Comments (5) | TrackBack

Little Brother

Cory Doctorow’s latest novel, Little Brother, is technically a young adult novel, but there is something in there for anyone interested in cyberlaw, security, national security law, and oh yeah, a rather fun, although at times scary, tale. In classic Cory fashion, he has made the book available for free (yes well before law profs such as Benkler and Zittrain did so, Cory has been a leader in the world of I-make-money-by-giving-away-my-creations). He also allows people to remix and share the new work. The downloads and remixes are licensed under a Creative Commons Attribution-Noncommercial-ShareAlike license. Now that is a business model of the new economy. For those wondering whether this approach works, it does for Cory if making the New York Times Kids Bestseller list matters. (Scoff at your own risk. Remember kids are a tremendous market). So on to the book.

Some tech/sci-fi writers give up story for ideas. They offer great fun and build excellent worlds, but when it comes to ending the story, they fall short. (I am thinking of early Stephenson here) Little Brother, however, delivers both ideas and story. That is great because one can dive in and enjoy the characters as they navigate the modern day 1984 world of the United States.

Despite, or perhaps because, the characters and the story draw one in, the details of this world are not all fun and games. Hacking, government power, security, racism, freedom, and more swirl around as decent teens trying to have a life, trying to grow and express themselves, and trying to make mischief, crash into a new world. Anyone who remembers useful acts of rebellion and the learning that goes with them should be able to identify with these kids. The beauty of having kids as main characters is that kids often have parents. Doctorow uses the parents quite well. They express the natural desire for stability and the way that once freedom-loving individuals can easily change as they age and see the world through a lens of how-do-I-protect-my-family? Whether they will protect their kids and what the protection will look like was a subtle but important theme which Doctorow navigates well. Perhaps thoughts of becoming a father fueled this sensitivity; perhaps not. Either way it works.

Some of the text tantalizes with ways for individuals to keep their communications free, secret, and/or anonymous as context requires. Exploring those issues allows Doctorow to investigate how trust of other individuals, businesses, and the government work together to create the world we enjoy or what happens if that trust fails. Cory is not shy. He does not stop there. The relationship between federal and state government, the role of the press, and how individuals can or cannot impact the system are all in play as well.

I will stop here as I do not want to give away the details. There is more to discuss, but I also hate spoilers. So here is a possible solution. For those wishing to see Cory’s take on his book check out his post on John Scalzi’s Big Idea series. In addition, Cory is quite busy, but we hope to do a phone interview this summer. That way the law issues can be addressed and those who wish to avoid spoilers can. No promises but if he and I can connect, it should be fun.

Last, you may wonder whether I’d say buy the book given that it can be downloaded for free. Well yes I would say buy it as it keeps Cory funded. Yet, what if you decide to download it? Should you donate to Cory? No. In fact he would prefer you buy a copy for you or someone you love as it works better for his publisher and him. Or ever the innovative person, Cory has another idea you may wish to pursue: a donation program for the book. In short, Cory and his assistant have assembled a list of libraries and schools that want the book. He suggests that people who downloaded the book and want to give him money, find a library or school, buy the book online, and ship it to the school. Everybody wins: the public, the publisher, and Cory (who will receive royalties). Cory sent me the file before he put it online so I could review it. Still, I plan on following his suggestion and donating a book.

Image: Courtesy of Pablo Defendini
The image is an early sketch for a potential paperback cover. Mr. Defendini has a portfolio that you may enjoy too.

Posted by Deven Desai at 12:50 PM | Comments (1) | TrackBack

The Internet Archive Protects Privacy for Libraries

Wired reports that the FBI subpoenaed the Internet Archive and demanded that Brewster Kahle (the Archive’s founder) provide records about one of the library's registered users, asking for the user's name, address and activity on the site. The FBI used a National Security Letter (example) to make the request. As Wired explains this type of letter does not require judge’s review before issuing it and often (almost always) has a gag order “forbidding the recipient from ever speaking of the subpoena, except to a lawyer.” The Archive, EFF, and the ACLU went to court and had the subpoena quashed.

As I argue in Property, Persona, and Preservation, given that our information is more and more technologically mediated, we need better systems to preserve our information. This case raises a related issue of once preserved what can be done with the information. Here, the Archive is preserving the information and then as a library allowing people to use that information. But because of the method of access, the FBI was able to ask for great detail about who looked at what information and when. Julie Cohen’s A Right to Read Anonymously: A Closer Look at "Copyright Management" In Cyberspace offers an explanation as to why the Archive’s win is so important. In short, reading anonymously involves identity of the reader and how we foster “freedom of thought and expression.”

In addition, the Wired article points out that despite the settlement the details of what was sought for example, the “kind of information the target was looking at or uploading -- such as animal rights information or Muslim literature” were kept secret. There may be reason for such secrecy. Still, when Congressional audits show that “hundreds of thousands of NSLs” have been issued, the use has not been tracked, the FBI “can only estimate how many NSLs it has issued,” each time an NSL has been challenged, it has lost (only three times according to the article), but one needs the help of a major public interest law group to fight the subpoena, something is wrong.

One disturbing thing is that no one knows exactly how these NSLs are being used or managed or if they do, they can’t talk about it. That situation reminds me of the private military context where the government also had little sense of how many and under what terms the PMCs were used. In other words, lack of oversight often leads to abuse, but then many know that, right? Another problem is that again like the PMC context, it seems quite difficult to have any sunshine fall upon this process. Why not have a judge look at such a letter? It seems the information is not going anywhere. Quite the opposite; remember it is preserved.

There is more to say on secrecy but for now I recommend Secrecy: The American Experience by Daniel Patrick Moynihan. I think I have recommended it before and probably Patrick O’Donnell has offered other books on the topic (which is always welcome). But as it is on my mind and an excellent look at how secrecy can help and harm a fight against whoever our enemies may be, I offer it again.

Posted by Deven Desai at 12:45 PM | Comments (2) | TrackBack

Data Mining and the Security-Liberty Debate

My short essay, Data Mining and the Security-Liberty Debate, 74 U. Chi. L. Rev. 343 (2008) has just been published. I've posted the final version on SSRN. Here's the abstract:

In this essay, written for a symposium on surveillance for the University of Chicago Law Review, I examine some common difficulties in the way that liberty is balanced against security in the context of data mining. Countless discussions about the trade-offs between security and liberty begin by taking a security proposal and then weighing it against what it would cost our civil liberties. Often, the liberty interests are cast as individual rights and balanced against the security interests, which are cast in terms of the safety of society as a whole. Courts and commentators defer to the government's assertions about the effectiveness of the security interest. In the context of data mining, the liberty interest is limited by narrow understandings of privacy that neglect to account for many privacy problems. As a result, the balancing concludes with a victory in favor of the security interest. But as I argue, important dimensions of data mining's security benefits require more scrutiny, and the privacy concerns are significantly greater than currently acknowledged. These problems have undermined the balancing process and skewed the results toward the security side of the scale.

The essay critiques arguments by Richard Posner and William Stuntz, as well as Eric Posner and Adrian Vermeule's Terror in the Balance: Security, Liberty, and the Courts.

Posted by Daniel J. Solove at 12:51 AM | Comments (1) | TrackBack

The Digital Person Free Online!

Last month, Yale University Press allowed me to put my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet online for free. The experiment has gone quite well. The book's website received a big bump in traffic, with many people downloading one or more chapters. The book's sales picked up for several weeks after it was placed online for free. Sales have now returned to about the same level as before the book went online.

I'm delighted to announce that NYU Press has allowed me to put my book, The Digital Person: Technology and Privacy in the Information Age (NYU Press, 2004) online for free.

Here's a brief synopsis of The Digital Person from the book jacket:

Seven days a week, twenty-four hours a day, electronic databases are compiling information about you. As you surf the Internet, an unprecedented amount of your personal information is being recorded and preserved forever in the digital minds of computers. These databases create a profile of activities, interests, and preferences used to investigate backgrounds, check credit, market products, and make a wide variety of decisions affecting our lives. The creation and use of these databases--which Daniel J. Solove calls “digital dossiers”--has thus far gone largely unchecked. In this startling account of new technologies for gathering and using personal data, Solove explains why digital dossiers pose a grave threat to our privacy.

Digital dossiers impact many aspects of our lives. For example, they increase our vulnerability to identity theft, a serious crime that has been escalating at an alarming rate. Moreover, since September 11th, the government has been tapping into vast stores of information collected by businesses and using it to profile people for criminal or terrorist activity. In THE DIGITAL PERSON, Solove engages in a fascinating discussion of timely privacy issues such as spyware, web bugs, data mining, the USA-Patriot Act, and airline passenger profiling.

THE DIGITAL PERSON not only explores these problems, but provides a compelling account of how we can respond to them. Using a wide variety of sources, including history, philosophy, and literature, Solove sets forth a new understanding of what privacy is, one that is appropriate for the new challenges of the Information Age. Solove recommends how the law can be reformed to simultaneously protect our privacy and allow us to enjoy the benefits of our increasingly digital world.

Book reviews are collected here.

Posted by Daniel J. Solove at 12:08 AM | Comments (0) | TrackBack

The NSA: The Total Information Awareness Agency

Remember when, about five years ago, a program called Total Information Awareness (TIA) came to light. TIA was a plan to create a massive government database of personal information which would then be data mined. The program led to a public outcry, with William Safire writing a blistering op-ed in the New York Times attacking TIA. In 2003, Congress voted to deny it funding.

According to the Wall Street Journal, something very similar to TIA is now being done by the NSA:

The National Security Agency, once confined to foreign surveillance, has been building essentially the same system.

The central role the NSA has come to occupy in domestic intelligence gathering has never been publicly disclosed. But an inquiry reveals that its efforts have evolved to reach more broadly into data about people's communications, travel and finances in the U.S. than the domestic surveillance programs brought to light since the 2001 terrorist attacks. . . .

Largely missing from the public discussion is the role of the highly secretive NSA in analyzing that data, collected through little-known arrangements that can blur the lines between domestic and foreign intelligence gathering. Supporters say the NSA is serving as a key bulwark against foreign terrorists and that it would be reckless to constrain the agency's mission. The NSA says it is scrupulously following all applicable laws and that it keeps Congress fully informed of its activities.

According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns. Then they spit out leads to be explored by counterterrorism programs across the U.S. government, such as the NSA's own Terrorist Surveillance Program, formed to intercept phone calls and emails between the U.S. and overseas without a judge's approval when a link to al Qaeda is suspected.

The article continues, discussing how the debate over the Foreign Intelligence Surveillance Act (FISA) and immunity for telecommunications companies is only getting at the tip of the iceberg:

It isn't clear how many of the different kinds of data are combined and analyzed together in one database by the NSA. An intelligence official said the agency's work links to about a dozen antiterror programs in all.

A number of NSA employees have expressed concerns that the agency may be overstepping its authority by veering into domestic surveillance. And the constitutional question of whether the government can examine such a large array of information without violating an individual's reasonable expectation of privacy "has never really been resolved," said Suzanne Spaulding, a national-security lawyer who has worked for both parties on Capitol Hill.

NSA officials say the agency's own investigations remain focused only on foreign threats, but it's increasingly difficult to distinguish between domestic and international communications in a digital era, so they need to sweep up more information.

All this occurs with little to no oversight. Congress seems unwilling to perform much of an oversight role. The courts are not all that excited about it either. The Supreme Court has already limited the reach of the Fourth Amendment, making it possible for the government to collect records from businesses with no oversight and few limits. The courts today are finding many ways to dismiss lawsuits challenging the NSA surveillance -- through an expansive application of the state secrets doctrine or through uncharitable views of plaintiffs' standing to bring a challenge. The Executive Branch, it seems, can do whatever it wants. All of this strikes me as a tremendous failure of our political system.

Posted by Daniel J. Solove at 10:24 AM | Comments (0) | TrackBack

The National Data Exchange

From the Washington Post:

As federal authorities struggled to meet information-sharing mandates after the Sept. 11, 2001, terrorist attacks, police agencies from Alaska and California to the Washington region poured millions of criminal and investigative records into shared digital repositories called data warehouses, giving investigators and analysts new power to discern links among people, patterns of behavior and other hidden clues.

Those network efforts will begin expanding further this month, as some local and state agencies connect to a fledgling Justice Department system called the National Data Exchange, or N-DEx. Federal authorities hope N-DEx will become what one called a "one-stop shop" enabling federal law enforcement, counterterrorism and intelligence analysts to automatically examine the enormous caches of local and state records for the first time. . . .

Federal authorities have high hopes for the N-DEx system, which is to begin phasing in as early as this month. They envision a time when N-DEx, developed by Raytheon for $85 million, will enable 200,000 state and local investigators, as well as federal counterterrorism investigators, to search across millions of police reports, in some 15,000 state and local agencies, with a few clicks of a computer mouse. Those reports will include names of suspects, associates, victims, persons of interest, witnesses and any other person named in an incident, arrest, booking, parole or probation report.

The system will be accessible to federal law-enforcement agencies, such as the FBI, and state fusion centers. Intelligence analysts at the National Counterterrorism Center and FBI's Foreign Terrorist Tracking Center likely will have access to the system as well.

"The goal is to create a one-stop shop for criminal justice information," the FBI's Bush said.

There is nothing inherently wrong with law enforcement agencies sharing data under certain circumstances, but I definitely think it is problematic that we lack a good system of legal regulation over how and when they can share it, what they can do with the information, how they ought to maintain it, and so on.

Image credit: jaylopez

Posted by Daniel J. Solove at 01:26 PM | Comments (2) | TrackBack

The FBI Does It Again

From the Associated Press:

The FBI acknowledged it improperly accessed Americans' telephone records, credit reports and Internet traffic in 2006, the fourth straight year of privacy abuses resulting from investigations aimed at tracking terrorists and spies.

The breach occurred before the FBI enacted broad new reforms in March 2007 to prevent future lapses, FBI Director Robert Mueller said Wednesday. And it was caused, in part, by banks, telecommunication companies and other private businesses giving the FBI more personal client data than was requested.

Testifying at a Senate Judiciary Committee hearing, Mueller raised the issue of the FBI's controversial use of so-called national security letters in reference to an upcoming report on the topic by the Justice Department's inspector general.

An audit by the inspector general last year found the FBI demanded personal records without official authorization or otherwise collected more data than allowed in dozens of cases between 2003 and 2005. Additionally, last year's audit found that the FBI had underreported to Congress how many national security letters were requested by more than 4,600.

At the end of the article is a very apt quote by a former FBI official:

"The credibility factor shows there needs to be outside oversight," said former FBI agent Michael German, now a national security adviser for the American Civil Liberties Union. He also cast doubt on the FBI's reforms.

"There were guidelines before, and there were laws before, and the FBI violated those laws," German said. "And the idea that new guidelines would make a difference, I think cuts against rationality."

I've long recommended that the FBI be better regulated and placed under better oversight:

A charter defining the FBI’s scope and powers as well as requiring more regular congressional oversight would go a long way to ensuring against the terrible abuses of the FBI’s past. A detailed proposal for such a charter is beyond the scope of this Article. The bulk of such a charter, however, could be composed by codifying existing internal FBI Guidelines into law. The Church Committee recommended a legislative charter to govern intelligence gathering activities, but many of the Committee’s proposals were put into operation through executive orders and guidelines. Executive orders and Attorney General Guidelines are the “primary source of authority for national security surveillance.”

Unfortunately, executive orders and guidelines can all be changed by executive fiat, as demonstrated by Ashcroft’s substantial revision to the guidelines in 2002. Moreover, the Attorney General Guidelines are not judicially enforceable. The problem with the current system is that it relies extensively on self-regulation by the executive branch. Much of this regulation has been effective, but it can too readily be changed in times of crisis without debate or discussion. Codifying the internal executive regulations of the FBI would also allow for public input into the process. The FBI is a very powerful arm of the executive branch, and if we believe in separation of powers, then it is imperative that the legislative branch, not the executive alone, become involved in the regulation of the FBI. The guidelines should be judicially enforceable to ensure that they are strictly followed.

I recommend that the original FBI guidelines, under Attorney General Levi, should be used as the foundation for a legislative charter for the FBI. The Levi Guidelines were crafted to prevent the abuses chronicled by the Church Committee, and they provide strong limits on the use of surveillance directed at free speech and political activities. The threshold standards of the Levi Guidelines are more meaningful than the watered-down versions employed in subsequent revisions. The Levi threshold standards are not insurmountable—they are a practical compromise between privacy and effective law enforcement that safeguards against abuses.

Additionally, the charter should require Congress to undertake an extensive assessment of intelligence activities at five- to ten-year intervals. This assessment would be similar in scope to the Church Committee Report. The Church Committee performed a profoundly valuable service, exposing and memorializing surveillance abuses that occurred over a period of about forty years. This kind of thorough accounting of the often clandestine activities of governmental intelligence agencies should not be an isolated undertaking.

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Battlestar Galactica Interview Transcript (Part I)

We are very pleased to be able to present a transcript of our interview with Ron Moore and David Eick, the creators, producers, and writers of the TV show Battlestar Galactica. Joe Beaudoin, Jr., the project leader of the Battlestar Wiki, transcribed the interview for us. We edited the transcript, but the bulk of the work was done by Joe. The transcript is also posted at the Battlestar Wiki, which has a ton of great information for fans of the show. In editing the transcript, we took the liberty of cleaning up grammatical errors and eliminating "ums" and other distractions in order to make it more readable.

In this interview, we explore the legal, political, economic, and social ideas raised by the show. If you prefer to hear to the interview, click here to listen to the audio files.

Below is the introduction to the interview and the transcript for Part I, which explores the legal system, morality, and torture. I couldn't fit the entire transcript into one post, so Parts II and III are contained in another post. Part II examines politics and commerce. Part III explores the cylons.

In the interview, Daniel Solove, Deven Desai, and David Hoffman ask the questions. We would like to thank Professor John Ip for suggesting some of the torture questions.

Our goal was to explore some of the themes of the show in a deeper manner than many traditional interviews. Ron and David graciously agreed to give us an hour of their time, and we had a fascinating conversation with them.

The new Battlestar Galactica, which premiered initially as a miniseries in 2003 on the SciFi Network, is only loosely based on the earlier show by the same name during 1978 and 1980. The new Battlestar Galactica is breathtaking science fiction, and it has widespread appeal beyond science fiction fans. Numerous critics have hailed it as one of the best shows on television. Time Magazine, for example, listed it as one of the top television shows and described it as "a ripping sci-fi allegory of the war on terror, complete with religious fundamentalists (here, genocidal robots called Cylons), sleeper cells, civil-liberties crackdowns and even a prisoner-torture scandal."

The show chronicles the struggle for survival of a small band of humans who escaped a devastating genocidal attack by intelligent robots called cylons. The humans created the cylons for use as slaves. The cylons rebelled and a war erupted between the humans and cylons. But a truce was reached, and the cylons disappeared. But forty years later, the cylons launched a massive surprise attack, destroying the human society (called the Twelve Colonies) with nuclear missiles. Only a small group of humans aboard spaceships survived.

Battlestar Galactica depicts the humans’ difficult fight for survival and the tough choices they must make along the way. The cylons have developed technology to allow them to take human form, and some of the humans within the group of survivors are really cylons. The show is heavily influenced by modern events, especially terrorism, war, and torture.

Battlestar Galactica was honored with a prestigious Peabody Award and twice as an official selection of the American Film Institute top television programs for 2005 and 2006.

Because the show explores so many interesting issues so deftly, it has attracted a large group of fans in the legal academy. We know of many law professors who count Battlestar Galactica as one of their favorite shows, and this is why we thought it would be fascinating to speak with the creators and writers of the show -- Ron Moore and David Eick.

Ron Moore is a co-creator, executive producer, and writer of Battlestar Galactica. Previously, Ron wrote or co-wrote 27 episodes of Star Trek: The Next Generation, including the two-hour series finale "All Good Things," for which he won a Hugo Award in 1994. That same year, Ron was honored with an Emmy Award nomination and was eventually promoted to producer. In 1994, Ron joined the writing staff of Star Trek: Deep Space Nine as supervising producer and was elevated to co-executive producer the following year. Ron spent five seasons on the series until the end of its successful run in 1999. In the fall of 2002, he was named show-runner and executive producer of HBO’s critically-acclaimed one-hour drama Carnivale. In 2006 Ron was nominated for an Emmy Award for Best Writing in a Dramatic Series for his work on Battlestar Galactica. Ron studied political science at Cornell University, and he lives in California with his wife and three children. He has a blog, which he started during the Writer's Guild Strike.

David Eick is also a co-creator, executive producer, and writer of Battlestar Galactica. Prior to his involvement in Battlestar Galactica, David was Executive Vice President of USA Cable Entertainment (USACE), where he was the company’s point person to the creative community and oversaw all aspects of the division, which developed, financed and acquired product for initial exhibition on USA Network and SCI FI Channel. While there, the studio produced USA Network’s critically lauded drama series Touching Evil, as well as the hit series Monk. Prior to his network experience, David spent six years at Renaissance Pictures, where he held a variety of positions and produced the hugely successful syndicated series Hercules: The Legendary Journeys. David also co-developed and launched its successful spinoff, Xena: Warrior Princess. Additionally, David also produced many others shows. He recently developed The Bionic Woman for NBC. David graduated from the University of Redlands in California with a BA in political science. He resides in Los Angeles with his wife and three children.

For readers unfamiliar the show, you should catch up by watching the DVDs of the first few seasons. Currently, the show is about to start its fourth and final season on Friday, April 4th at 10PM Eastern.

Additionally, you can watch the movie Battlestar Galactica: Razor, a made-for-TV movie that premiered in fall 2007.

PART I-A: LEGAL SYSTEMS

Daniel Solove: Greetings, this is Professor Daniel Solove of the blog Concurring Opinions with professors David Hoffman and Deven Desai.

We're delighted to have the opportunity to speak with Ron Moore and David Eick, the creators of the terrific television show, "Battlestar Galactica", on the SciFi network. "Battlestar Galactica" chronicles a small group of humans that survived the mass destruction of their society by a group of machines they created. The machines are known as the Cylons.

As "Battlestar" enters its fourth and final season, it enjoys tremendous stature. The show has been one of the most critically acclaimed TV shows. It raises many fascinating legal, political, economic and social issues. And we're here right now with Ron Moore and David Eick, the two writers, co-creators, producers of the show, to talk about some of the issues with them.

Ron and David, thanks so much for being here with us today.

Ron Moore: Well, thank you for having us. It's a pleasure to be here.

David Eick: Absolutely.

Deven Desai: Fantastic! So this is Deven Desai, and I wanted to kick off with a somewhat general framing question. At a very simple level--but from the mental level -- I’m trying to get at exactly what role the law plays in the show. And I think the real question there is: Is it fair to say that "Battlestar" examines what happens to a social and legal system under extreme stress, and maybe even questions whether there is law at all in those circumstances?

Moore: Yeah, I think that is a fair way to put it. I think from the very beginning, one of the things we wanted to examine in the show is what would happen in a circumstance where civilization as we know it was literally wiped out, and you and a bunch of other survivors would gather together. What elements of the existing society would you choose to continue? What are the things that you would leave behind? What are the things you would try to retain?

It's called "Battlestar Galactica," so it has a very strong military component to it, but I felt very strongly from the get-go that there are other remnants of the civilization here, and [we needed to know] how they organize themselves, what kind of government they have. What the role of law was in that circumstance [post-apocalypse] was one of the key ideas we wanted to start talking about right from the mini-series.

In fact, in the mini-series you'll see that one of the first questions that comes up is the line of succession for the presidency -- what role the president has in that circumstance versus the military. By the end of the pilot, they settled into a bit of compromise between Laura [Roslin] and [Commander William] Adama.

President Laura Roslin

Eick: Right. It is also important to point out that [the military vs. government issue was] one of the things, I thought, Ron's script for the pilot (the mini-series) [addressed] so well. In fact, [it] really intuitively circumvented some of the things that befall a lot of so-called genre sci-fi pieces when they try to examine or postulate legal precedents or refer to laws.

There was a show called "Century City" on a while ago which was a law show about the future. And I was friendly with some of the executives who made it. Not to pick on "Century City", but I remember saying at the time: “You know, guys, the joy of a law show -- I know a lot of people who watch law shows (I don't) -- and not that "Battlestar" is -- but the joy of these [shows] is to match your wits against the characters in the piece.” [The joy of law shows is] to be able to go to yourself, "No, no! Brown vs. Board of Education you idiot, or whatever... [It is] to be able to have a common frame of reference. And the thing that I thought Ron's script did so well was to essentially say their world is our world. And we're not literal about that necessarily, but what I think we try to do is avoid the trappings of contrivance and deus ex machina to justify a story point when it hits against the reality of: "No, in our culture that wouldn't be allowed, we have a law about those kinds of things." We have things like freedom of speech and freedom of expression, and there are certain basics of the show that are essentially just transplants [from our society] that allow us to play fair with the storytelling and with the audience whenever a story point comes up that involves the law or the issue of morality or ethics.

Desai: Right. And I think, if I hear you right, that explains why there are remnants of the older legal system, but there are still -- because of the stress -- the military tribunals, there are criminal trials and civil actions. And it seems like lawyers lurk behind some of this. If I remember correctly, Adama's father [Joe Adama] is a defense attorney, and then you later have Romo Lampkin. And I'm wondering, how do the lawyers and these ideals play out with those characters? And are you exploring what pieces of the legal culture and system you keep or don't keep in developing a society that's perhaps reinventing itself?

Moore: Well, for Adama, we gave him the backstory that his father was a defense attorney who specialized in civil liberties, primarily because I wanted to say that about the character of Adama. Typically the military commander in a fictional world comes from a long line of military commanders, going back to the [American] Revolution or something, and I wanted to set him apart from that tradition. This is a man that believes in a lot of the ideals that the uniform stands for, and [he] approaches it from a slightly different point of view [than Laura Roslin], and I wanted to set him up in a different way than Laura. Laura came to this position through a different process, and her ideas of the law and how she would wield authority would come from a very different place as a character.

I think that the lawyers in the show, [such as] Romo Lampkin [whom] we've used, and the lawyers, laws, and things [we allude to], are in service of the idea: Okay, this society is destroyed, [and] it's very important for society to have a rule of law, to have a system that governs people lives -- even in this circumstance -- that they can rely on. There are ideas of justice and fairness within the society, but there's still picking and choosing which laws they're going to adhere to. We had a line in an episode that actually got cut: there was a press conference early on in season one where Laura's assistant, Billy [Keikeya], was fielding various questions from the press about all kinds of things, and someone actually asked about income taxes and whether they were going to be filing returns.

We played it as a joke -- you know, we'll get to that later, but it was an interesting notion because it was symbolic of the [idea] that if we're hanging on to this form of Republican government, and we're not trying to hang on to all the things we used to have, how far does that go? How far is the point where it becomes absurd, given the circumstances that they were in? But the notion was that we're going to try to hold on to as much of this democratic society as we can, that this was one of the founding beliefs of this culture. [It was] really, really important to them -- to hold on to this form of government and hold on to as many of the forms and rituals (and symbols of it) as possible because it defined them as a people. It defined them in terms of how they chose to view themselves.

The trial of Gaius Baltar

Desai: So as a follow up then, when you talk about how they choose to view themselves, it seems like there's a real contrast in terms of evolution of society. In [the episode] "Litmus," you have these early almost Crucible-like interrogation boards or inquiry boards, and later on you get to [Gaius] Baltar's trial and the acquittal, which reminded some of us of South Africa's truth and reconciliation commission -- where you examine something without prosecuting it. Obviously, as you develop stories, sometimes things take on their own life, but was there an evolving plan for these sorts of crucial moments of the story? Were the characters getting to these, "How are we really going to do it when we're up against the wall here?" [moments]?

Moore: Yes. There was a certain evolution in our thinking of the culture within the show, and I think it just grows out of the fact that, in season one, soon after the apocalypse and the destruction of their world, it's sort of like everything is up for grabs at that point. Everything is possible. Tribunals can go far astray. Laura can pretty much rule by dictate.

A lot of it has to do with observing of our society in the post-9/11 aftermath, and how everyone was willing to do a lot of things that the government asked them to do in those early days without real question. So we wanted to reflect that into the show, but as time went on you start to settle in and say "Ok we're not going to do that anymore" and "Wait a minute, maybe this was too far" and "Let's really re-gather and decide what the rules of the society are." And that happened in the writer's room, as well as on the show. [When] we're [no longer] a few months after the attack [and] a few years have gone by, and here's a former president of the Colonies [Baltar] up on treasonable charges, [we] feel that this has to be examined in a different context than the earlier sort of tribunal-type formats would have permitted.

Eick: It's funny you know, and this sounds to be more political than it is, but [in] the episode "Pegasus" in season two, a long lost ship [found the] small fleet and [was] helmed by an admiral [Helena Cain] who outranked Adama and who, as the story wove on, was a war criminal, basically, and was someone [to whom] human rights were utterly meaningless in the face of war and [who just] did what [she thought] needed to be done. And I felt like that epitomized a lot of what was going on with the culture [in America post 9-11]. There was a certain, "Whatcha gonna do about it?" that seemed to be in the culture. It isn't so much to say, “Well gee, look at what our real life administration did” as much as it was to say, "What could it do? Where would the line be drawn? Would one be drawn?” There was this feeling of recklessness in the air [post 9-11], and I do think that it served [to some degree as a starting point]. [But] we said on a number of occasions that we don't rip headlines to serve as starting points for storytelling. We're not "Law & Order." We're not looking to do literal metaphors necessarily, and yet it was impossible to dodge the sense of what was creeping into our culture.

So [let’s] get back to your question, “Where did you decide to adhere to the strictures of our modern, contemporary legal system? Where did you decide to deviate?” It was more about: What would you buy? What feels real? What feels like: "Gosh, that kind of feels contemporary, that kind of feels resonant with what's happening today"? I like a show where you're making it up as you go, and you’re able to pull solutions out of your hat whenever you want because you made the rules up anyway. [But] this [attempt to be contemporary and resonant with current events], I think, maintained enough of a sense of reality and a connection to our culture that we didn't feel allowed to do that. That there were repercussions, even in a situation like the tribunal, where the nature of the discussion was: "Well, hold on a second. You can't do that." And a part of you goes, "Well, why not? We've already done this!" And that seemed to reflect what was going on in the culture anyway. So in that way it felt real.

Admiral Cain aboard the Pegasus

PART I-B: TORTURE, NECESSITY, AND MORALITY

Solove: I'd like to explore some of the issues involving the show's depiction of torture, which occurred at several points during the show. It's obviously a huge area up for debate after 9/11. How did the United States experience of torture affect the way that you chose to depict it in the show?

Moore: It's interesting [because of] the fact that there was actually a question suddenly, which in the first time of my experience in this country was actually a subject of discussion. There was a notion that [torture] was permissible under some circumstances but not others, or at least we should have a public debate about it. And that alone just felt like . . . well, okay then, just by having it in our show we would touch into what's going on in America today. I think that given the circumstances of where they are, it was completely believable that people in different circumstances would choose to use aggressive, physical coercion on their enemies.

[This is] especially [true] in the circumstance [in the show] where we have the distinction [between humans and cylons.] [In the show,] Kara ["Starbuck" Thrace] and the rest of the Colonial officers did not view the Cylons as legitimate people. They were not accepted as [humans] -- they were not human, and they did not have the rights of humans, and they would not be accepted as anything other than machines. So when we approached the first episode that really dealt with this, "Flesh and Bone," one of the key concepts was: ”Well, it's a machine.” Is there anything morally wrong about beating a machine? And torturing machines? And making a machine go through all kinds gyrations? It's a thing, and if this thing in front of you screams and cries and bleeds, can you ignore that? Can you as a human being distance yourself from the visual, from the empathetic impulse, and say, "Oh, I have to keep reminding myself this thing is not real. It's just a really good simulacrum. It's a really good software program. It's designed to fool me into believing it's human"?

And we wanted to play with that [issue] in the show, and that no matter how much Kara told herself that, how much she told that to Leoben [Conoy], she couldn't help but have a human connection. She couldn't help but be affected by what she was doing within the show. I think when we approached that episode we were a little bit more interested in the dynamic between interrogator and subject -- how does the emotional response reverberate back and forth? -- than we were really invested at that point in legal questions. We took as a given that Kara could walk into that room and do whatever she felt she had to do. She could have probably chopped his arms off if she felt like she wanted to, because Adama essentially told her at the top of the show, "It's a machine, don't forget that. Don't get involved." But we were interested in this more character-oriented idea.

Kara tortures Leoben in the Season 1 episode "Flesh and Bone"

Eick: That episode remains somewhat notorious in that it probably represented the most extreme period of tension and disagreement between ourselves and the network. I know those stories are legion, and show people like to talk about how they weathered the storms, and put up a good fight, and saved the show from the cretins who've gotten their fingers. That has not been the case with this show at all. We've actually enjoyed a great deal of support and a lot of courageous spiritedness and boldness from this network.

However, in that particular case, there were drafts of the script that were pretty extreme in terms of what Kara was going to do to Leoben, and they were emblematic of what was going on at Guantanamo and places like that, and the connection to our own culture was probably a bit more literal and precise and less metaphorical than it had been [in other episodes of the show]. But as a microcosm, in and of itself, it serves as an example of what Ron was just talking about -- which is that we would find ourselves saying things like, "But it’s not a person, why are you telling us to cut the scene where she gouges his eyeballs out?! No, there wasn't that scene, but why are you giving us grief about this?” In a way, it became our argument because we were trying to take something real and force the audience to have the same trouble with it that the network was having. Anyway, it was just an interesting microcosm of everything you were saying.

Solove: I heard that the show's ethos is encapsulated by the line, "It's not enough to survive, one must be worthy of survival." As you both talk about the depiction of torture and how extreme it is, there are views such as, "Look it's just robots." But there are also times when [humans such as] Gaius Baltar get tortured [in Season 3's "Taking a Break From All Your Worries"]. To what extent did you want to portray [torture] in a way that got so extreme that in fact it earned the audience's sympathy, or got the audience to say, "Wait a second. This isn't effective," or "It is effective"? To what extent did you depict [torture] to try to illustrate certain points about torture, and its effectiveness or non-effectiveness, or the justifications for it, or the arguments against it?

Moore: I think our goal was to stay away from that, actually. We were sort of at pains in the story discussion room and at the script phase to not send [any particular] message [about torture]. We were trying not to say, "Hey, guess what, torture's bad!" or to go through the rationalizations of why it should be employed in certain circumstances. We really just wanted to put the audience in the room and make them really uncomfortable. We really wanted them to struggle (we like to do this a lot in the show) -- we wanted them to struggle with [the questions]: "Who am I supposed to be rooting for in this circumstance? Whose side am I on? I thought I was on her [Kara’s] side because [Leoben has] said he's got a nuke somewhere in the Fleet, and that's a pretty scary thing, and Kara, you better do what you’ve got to do to get the information out of him. . . . Okay, now I'm sitting here, and now I have to watch him be smacked around, blood flowing from his mouth, and watch him be, in essence, water boarded. And I'm starting to really feel uncomfortable with that. And I'm starting to feel like she's going too far and . . . wait a minute . . . whose side am I on?"

We just wanted to ask the questions. We really just wanted the audience to have to get in that room and really search their own souls for how they felt about this, and what's right and what's wrong. [We wanted] to just let it live in the ambiguity of the circumstance. That's something that television generally shies away from. Ambiguity is not something networks like. They like an answer. Give the audience an answer. Tell them who's the good guy, who's the bad guy. Let them root for justice and boo at evil.

Our show, I think, is at its best when you're just not sure, [when] you're just uncomfortable because you can't decide -- should Gaius Baltar get off the hook or not? -- when you’re struggling with these moral dilemmas. I don't think we [as writers] need to have the ego that says, "Hey, guess what, I've got the answer to torture in 44 minutes or less, and here it is." It was just like, "Okay, this happens, this is a real world circumstance. Here's the classic ticking-bomb scenario, and here's the guy [Leoben] who says he knows where it is. What are you going to do?" And here it happens, and he starts talking, and he [Leoben] gets into her [Kara’s] head. It just becomes this very complicated wash of emotions.

Solove: It's interesting too in that you, to some extent, avoided the issues that have plagued the show "24." There was a New York Times story about the politics of depicting torture in "24" and criticizing the show for the way it depicted torture. To what extent do you feel that you managed to survive that kind of criticism? Also, more broadly, to what extent do you feel pressure at all from the Left, the Right, or others in terms of how you depict certain hot topics such as torture?

Eick: You know, I'll just say briefly, that's the great thing about science fiction. Exactly that point. I don't watch "24," I don't know what their issues were, what kind of trouble they got into, but I would reckon that we'd probably be able to get away with exactly what they tried to do, and got in trouble for, in a different way because of the nature of sci-fi, and the fact that it tends to not, frankly, be taken as seriously. People can look down their nose at it, or say, "That's just a fantasy" or "That's just an escapist piece" -- with the exception, of course, of the people who actually watch shows like "Battlestar" and they realize that's not the intent. But I do think the genre has always served as an excuse or justification or a metaphorical way to talk about the issues of the day and what's happening in the culture without necessarily having to be subjected to the same kind of scrutiny [that is directed at] something that's doing it in a literal way.

Moore: One of the hallmarks of our success is that we get glowing reviews from The National Review [and also] from Salon. I think that just says a lot. We're not trying to play everything down the middle, where it's just neutral. There are ideas and messages and themes strewn throughout the show, but I think we always try to make it really ambiguous, and let the audience take away from it what they will. Some people will see exactly what they want to see in the given circumstances, and I'm sure there are people on the Right who watched the torture scenes and felt like, "Well, absolutely! She's justified in doing whatever she's got to do to get that information out of that guy." And there are probably people who on the Left felt like it was appalling and sympathized completely with him, and there were probably people on both sides who had their views challenged and felt vaguely uncomfortable about holding the position that they started with.

Solove: It's a great testament to the show it does have fans both on the Left and the Right, especially when it tackles issues that have been hot button issues on both sides where there's so little agreement. So I think that's quite a testament to the show.

I'd like to shift a little bit to a related issue, which is the issue of necessity and morality. Throughout the show there seems to be a tension between instrumental necessity and moral principle, and we see characters doing things that they often find contrary to their own morality and principles. Examples would be Roslin trying to rig an election, people turning into terrorists to fight the Cylons [on New Caprica], the destruction of a ship [the Olympic Carrier] in "33" with over a thousand people on it. To what extent do you think these decisions have effects on the people that make them and on the human society? And how have you've chosen to depict those effects?

Moore: I always think it's interesting when people run up against practical circumstances [and are forced] to try to go against things they've believed in their whole lives, and they find themselves doing that which they abhor, or that which they've sworn that they would never have done. I think it affects them in profound ways, and on some level it just brings in simple guilt and brings in a lot of self-loathing about certain actions, but it also makes them strive to over-compensate in some ways and to be more heroic next time.

I think the show is always interested in these barriers that people set up. "These are the bounds I will not step over. This is what defines me as a human being, and I'm going to hold that banner up high, no matter what, and I’m never stepping over this line . . . until I've got to step over this line." That's just human. To me, it's always what people perceive as human failings. In a lot of ways, our defeats and our failures tell us more about ourselves as human beings than our victories do.

Solove: One thing the show often does is present us with situations where the military leaders have to act and make some very tough and sometimes very ugly decisions. I think the show is about these hard choices that people have to make. On the one hand, the show demonstrates the importance of deference to the military leaders. But on the other hand, there are also instances where there are objections to [the military leaders’] decisions. Lee Adama often engages in acts of civil disobedience, and we also have Colonel [Saul] Tigh's rather unwise military decisions (as compared to [Commander] Adama's mostly wise decisions). What do you think the appropriate level of deference to afford military judgments is? How do you depict the tension between the respect and understanding that should be given to their judgments versus the questioning that should be [given] to their judgments?

Eick: Were you asking about whether we feel a responsibility to depict it in a particular way?

Solove: Mainly just what your aims are, rather than your responsibility. Is this a question you thought of? Is this an issue that you think of as you present these choices?

Moore: Well, I think David and I are both students of history. In particular, I'm a student of military history, and I have always been fascinated by the fact that the military attracts a lot of different kinds of people in different eras and in different circumstances, but they're all people. It always seems like there's this tendency in popular culture or popular media when you’re doing a piece about the military. It splits into two broad categories. There's this “put them all on a pedestal” [depiction] -- that [military people are] just wonderful, amazing, heroic people. Even when they do terrible things they're still doing it for the noblest of causes, with everyone's best interests in mind. Or, [in the alternative depiction,] they're committing the My Lai Massacre, and they're degenerates, and they're bloodthirsty, and they're the cavalry guys in "Dances with Wolves" that can't wait to kill those Indians. And it just seemed like the cliché -- the truth is somewhere in between. There's a lot of conflicting currents and cross-currents that happen in military service. In a time of war, a lot of actions are taken in very specific circumstances by very specific people. You have to have a lot of broad play there to try to understand what they're doing and why, and it's always permissible to question that. It's always permissible to say, "Is this the right thing? Is this what we really want to do? Even though this is the smartest tactical move, is that the step that we as a people are willing to take?"

It seems to me the show wants to continually ask that question. I didn't want the show to be a military piece about military people who just make all the decisions, and they're unquestioned throughout. Typically, in TV if you were doing something like this, the military would. . . . Well, they did this in the original ["Battlestar Galactica"] actually. In the original show, the military was in charge, and there was a titular civilian government, but whenever they spoke up they were essentially just straw men. They stood up and said, "Hey, we don't think that you should do that Adama!" And they were invariably wrong. They were always wrong. They were always out of line, and they were always portrayed as just fools or naïve, or something really stupid. The military was always the wiser, more paternalistic organization. I felt like that's not really my society, I don't want that to be my society. There's a balance between trying to win and trying to win in a way that is worthy of winning. There are competing interests here. The military is an arm of politics, like the old saying goes, and it's all about [this]: If you try to achieve a certain end, what means are you willing to go to do that? Just because destroying the village might be the smartest way to get from A to B, is it really worth it to get to B?

Eick: Ron was just talking about the human story beneath whatever the military issue might be. For sure, I think we're about to see when the political season really gets going, a story about one of the candidates is going to be all about personal perseverance despite an abject military fuckup. That's something we relate to, that's something [like John McCain's story]: it's not [about] John McCain the solider, it's about John McCain the policy maker. It's not John McCain the field general, it's John McCain the survivor who, in spite of what was perpetrated on him, in spite of the illegitimacy of the war he was in the middle of, [or] in spite of the failings of his commanding officer, was able to eke out a survival and return home a hero. That's just a story we as a people relate to.

Solove: Thank you so much. These have been fascinating answers. We're going to conclude this first part of the interview and shift in the second part to looking at some issues about politics and commerce in the Colonies.

Click here to read the transcript for Parts II and III of the interview.

Posted by Daniel J. Solove at 10:09 PM | Comments (0) | TrackBack