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[liberationtech] Democratic judiciaries and internet protocols both embed racial profiling

Nicolas Bourbaki nicolasbourbaki at
Thu Feb 26 14:18:53 PST 2015

Hash: SHA1

A packet sent by an American or European should be given no greater
privileges then a packet sent by someone from the middle east. Those
holding dual citizenry (one being of their locale and the other a
product of the internet' stateless generation) will not find this
question odd. But to end racial profiling in the protocol (example
[1]) questioning the rationale of stateful civil liberties is also

Initially this argument will seem a moral one but there are practical
reasons to consider. The increasingly globalised society is doing
little to stem the threat of terrorism while at the same time
increasing the call for more equal rights. Together this warrants
questioning the justification and benefits of discriminatory rights.

## Justification

A primary tool for the arbitration of discriminatory surveillance
policies are secret courts. One justification for secret courts is
the protection of sources and methods. Any investigation into an
on-going threat requires some form of secrecy. Terrorism is one
such threat. But this is not the only on-going threat that courts
handle. We should consider whether the vanilla judicial systems
cannot already handle this requirement.

Existing courts must also handle on-going threats and have to do
so while considering how the utilisation of secrecy for greater
security, and perhaps more efficient investigation, balances against
the risk to social contracts that define liberties and rights.

With each justification for protection of methods when investigation
terrorism threats we can ask if these were any different for
investigations into the racketeering ring of, say, Al Capone. Clearly
such investigations would be more efficient when perpetrators can
be swept off into secret prisons on the signature of a secret judge.

Existing courts already provide some room for discretionary secrecy.
The prosecution can determine which evidence they disclose to the
courts or wider public. In many nations there is also room for
disclosure only to the judge while avoiding exposure to the wider
public record. Finally parallel construction [2] is a questionable
but often used method for protecting both sources and methods.

Further, some exposure of methods provides an early feedback to
individuals that they can get caught. Whereas when the means to
find criminals are unknown and the criminals themselves are whisked
off into secrecy this benefit is completely lost.

Another justification for secret courts may be risk of spys within
the court itself. With intent to obtain influence or at least
advanced warning of investigative activity. But are our judiciaries
less equipped to handle this threat than when it comes from state
sponsored intelligence agencies? If anything the threat is diminished
because the architecture and premise of terrorist institutions is
much more decentralised than state intelligence.

Terrorist institutions are one partly of memetics. The violent form
of "grumpy cat" [3]. Within societies threatened by their ideologies
the appeal reaches only a few in like mind. Unlike your
3-letter-agency-of-choice they lack the appeal to mount sufficient
infiltration of any local judiciary.

Further, the centralisation of all terrorist based investigation
in the form of a handful of secret courts may be one of the few
reasons left consider the threat of infiltration. Whereas if public
courts were used this threat would be diffused as is the case with
investigations into other national or international on-going threats.

Therefore... **The justification for nationalist or racial rights
may be efficiency alone. But at what cost?**

## Benefits and Cost

For most the foundational documents of their country of origin are
held in almost religious regard. As in religion these documents are
subject to interpretation even though the indoctrinated claim they
are timelessly impervious to it. They are social contracts. The
cost benefit analysis weighed tacitly by judges when permitting
secrecy is a consideration of the social contract a given case may
effect. They collectively change that contract through their actions.
This subjectivity is both a risk and a necessity.

I once asked a rabbi why kosher laws do not allow Jews to eat a
chicken and cheese sandwich? What the Bible forbids is boiling a
"kid" in its mothers milk. I've rarely enjoyed boiled sandwiches
and never heard of chicken milk. The Rabbi explained something to
the effect "God gave the law to man for the rabbinate to change and
interpret. The kosher laws are as much about how behaviour is
perceived as it is about what God commands. Someone on the other
side of the room may just see you eating meat and cheese together.
This would encourage the wrong understanding of that law."

Interpretation is a slippery slope. Yet, at least Judaic law
acknowledges the social contract and that perception is important.
Where as our governments, through secrecy, negate even the possibility
or interpretation or consideration of perception. With our collective
identity and social threats becoming ever globalised the result of
enforcing an absolute interpretation is ignorance of sovereignty
(see drone warfare) and increasing rejection of equal rights.

With these acts the state in turning from a conduit that fosters
individuality into one that reinforces homogeneity. With the risk
that the meme will increasingly hold more weight than the rationale.

I have been lucky enough to have lived in countries that know how
much they suck at war so the Americanism "War on ..." always seems
strange. Yet the "War on Drugs" or "War on Poverty" are efforts
that this society perceives as a collective will because of shared
equality. If we want the War on Terror to be perceived as a collective
issue globally we will need to start with endowing the "other" with

Those that frame this debate in the context "Liberty versus
Security"... **It is easy to confuse Privilege for Liberty.**

## Racial Profiling

I'm certain there is reason to question these arguments yet I believe
they give some reason for debate. (i) The public judiciary already
has many of the tools required to handle current threats.  (ii)
Centralization into secret courts creates its own vulnerability and
its own justification. (iii) Necessity for efficiency ignores the
cost to social contracts in a globalised context. (iv) Secrecy makes
impossible consideration of equal rights in a global context and
removes the possibility to account for perception. (v) Secrecy
removes a feedback that informs civil behaviour in societies.

Along with the judiciary there is a parallel of discriminatory
profiling within the field of engineering. Our protocols have been
built for such profiling. I do not feel alone in questioning whether
the current stewards of the internet shouldn't be replaced with
those of government agency from which the internet was born.
Balkanisation is increasingly being seen as a solution, not the
threat. Yet we protest while boringly waiting for some form of
acknowledgement of responsibility from the IETF to change the

In our digital world the concern for how protocols support and make
discrimination possible will seem less distant. Rather than
congratulate ourselves for dejecting a member of the NSA from the
Crypto Forum Research Group we should be more disturbed by the
inability of the IETF to acknowledge any responsibility for the
ethics in the protocols.

- --

1. "GeoIP is a threat to democracy"


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