Monday, June 30, 2014

The Leon Panetta Problem

So last week I went to the annual data protection update and meeting of the great and good in UK information regulation at Bird & Bird, a law firm unparalleled for its insight and hands-on guidance in data protection matters. It's always a lovely and interesting event.

This year, it kicked off with two speakers, one from the Ministry of Justive high up in the EU (where they are drafting new data protection regs even as we speak)(except it does seem like a phenomenally leisurely pace to workhorse Americans like myself) and from the ICO, the Information Commissioner's Office, the people enforcing the data protection regs in the UK.

They were both impressive, insightful, well-versed in their subject matter and authentic human beings. They both mentioned that they were working to address the "Snowden Revelations". So they talked about EU regulations that would fine private businesses for inadequately disclosing data breaches, and they talked about prosecuting prison authorities that lost USB sticks with names of prisoners, but I didn't really hear anything that addressed the Snowden Revelations. Right? Essentially, the Snowden Revelations are about how the government itself with minimal oversight (two drunk Lords) had aligned itself with the NSA, accepted the NSA funding of the GCHQ and were using Finfisher and other software to listen to everything we said. What came out at the same time as the Snowden Revelations in the UK was the degree to which the police classified activists as terrorists and targeted groups with infiltrators in the past. It became clear that at a minimum 20% of our Occupy membership was likely undercover MET police.

Now, it's nice to fine prisons for stupid mistakes, but these guys got up and said that the principals of privacy and data protection enshrined in the EU constitution and the common law were SACRED. They agreed they were sacred. Yet the biggest violator of these sacred principles is their employer. So the poor dude from the Ministry of Justice got ahead of me in line at the coffee break and I laid all this out for him. To his credit, he spoke from the heart, about the IRA bombings and murders when he was growing up in London, and how he thought national security was a legitimate interest that outweighed privacy at the discretion of the government.

But his eyes were troubled when he said it.  The exception has become the rule, the greatest violator of our freedoms is the state itself. Now that I am 47 I am mellowing and I actually feel bad for the people that I lay into.

My father-in-law Sir David Williams wrote Not in the Public Interest, a legal treatise on the state secrets/national security exception to transparency in democracy and government. He warned that this exception could swallow the rule. He was right and that was back in the 70's.

In Bill Clinton Hercules, Bill calls it the Leon Panetta problem. This comes from the Vanity Fair article about a year ago about the Obama administration. The article recounts how Hillary when she was Secretary of State was complaining about drone killings to Obama in front of Leon Panetta, who was at the time Secretary of Defense. Panetta laughs at her complaints, leans over the table sneering and says, "you just don't get it, do you?"

Well, in the play Bill says this:

Nothing in my life has infuriated me like that sentence from that man. Not Starr. Not Gingrich. Not Greenspan. Because right there’s the failure of the rule of law, right there’s the failure of democracy, right there… in one snide little comment.
What he’s saying is that there is no branch of government more powerful than the CIA. We are running things, sweetheart. Democracy is ”window-dressing”. The secret forces are in charge. How can you not get it?”

Leon Panetta.... What the hell happened in Washington while I was gone? 9/11 does not justify that…

So anyway, this is what I was thinking about at Bird & Bird while these kind men said they were addressing the "Snowden Revelations". That really they weren't. 

And yet I have hope that they will, that they are men of good faith who will get there. I have hope that the brain trust in data protection law will turn their attention - perhaps surreptitiously - to protecting our data, ourselves, our democracy - from its greatest threat, their own employer. I hope. I hope.