In the wake of COINTELPRO and the Watergate scandal,
Supreme Court Justice William O. Douglas sent a letter to a group of young
lawyers at the Washington State Bar Association. “As nightfall does not come
all at once,” he wrote, “neither does oppression. In both instances there is a
twilight when everything remains seemingly unchanged. And it is in such
twilight that we all must be most aware of change in the air - however slight -
lest we become unwitting victims of the darkness.” [1]
The recent dramatic expansion of intelligence
collection at the federal, state and local level raises profound civil
liberties concerns regarding freedoms and protections we have long taken for
granted. If people generally appear unaware of “change in the air,” a large
part of the reason is the unparalleled resort to secrecy used by the government
to keep its actions from public scrutiny. According to the new American Civil
Liberties Union (ACLU) report, “Drastic Measures Required,” under President Obama (who had
vowed to create “an unprecedented level of openness in Government” when he
first took office), there were no fewer than 76,795,945 decisions made to
classify information in 2010 - eight times the number made in 2001.
There are layers of secrecy that cannot even be
penetrated by most members of Congress. In the recent debate over the
re-authorization of three sections of the USA Patriot Act with sunset
provisions, Sen. Ron Wyden (D-Oregon), who is a member of the Joint
Intelligence Committee, declared in the Senate in May 2011 that there was a
secret interpretation of Patriot Act powers that he could not even tell them
about without disclosing classified information. [2] “When the
American people find out how their government has secretly interpreted the
Patriot Act, they will be stunned and they will be angry,” said Wyden. The
determination of the Obama administration to imitate its predecessor and
maintain a wall of secrecy around anything that could be connected (however
tenuously) with “national security” is evident in the zeal with which it has
pursued whistleblowers and its use of the state secrets privilege in judicial
proceedings, including in the recent court challenge to the FBI use of the informant
Craig Monteilh to spy on mosques in Orange County, California.
During a decade of relentless fearmongering about the
terrorist threat, most Americans appear to have accommodated themselves to the
visible signs of change without questioning their broad implications. If
searches on the subway, body scans at the airport and a Special Operations
military drill targeting a Boston neighborhood are presented as necessary
to keep the nation safe, they are for them.
But what would they make of the largely invisible
architecture of surveillance that treats everyone as a potential suspect?
Anyone who has a bank account and makes a financial transaction, or uses a
phone or a computer to send emails or browse web sites, or visits a library,
books a rental car, or purchases a airline ticket is within the surveillance
net. The profiles that have been compiled on individuals by commercial data
brokers might well have found their way into government databases, errors and
all. A database error at El Paso Intelligence Center was
responsible for John and Martha King being detained at gunpoint when they flew
a single-engine plane into Santa Barbara airport. The plane had been wrongly
reported as stolen. Or government errors might be imported into commercial
databases. Take the case of Tom Kubbany of Humboldt County, California. He was
denied a mortgage after a credit report flagged him as being on the Treasury
Department’s terrorism watch list. As far-fetched as it seems, he appears to
have been so designated because his middle name, Hassan, matched an alias used
by one of the sons of Saddam Hussein.
In addition to the harms perpetrated by database
mistakes, databases containing sensitive information have been improperly
accessed for a range of purposes. Erroll Southers, a
former FBI agent who had been nominated by the White House to head the
Transportation Security Administration (TSA), admitted in a letter to
key senators that he had committed a “grave error in judgment” when he accessed
criminal records to get information about his estranged wife’s new boyfriend
and passed it on to the police. In Massachusetts, police across the
state were discovered to have repeatedly tapped into the state’s criminal
records system to gather information on celebrities and high-profile
citizens, such as actor Matt Damon, singer James Taylor and football star Tom
Brady. Politicians make an irresistible target, including presidential
candidates whose private passport files were peeked into in 2008 by private
contractors working for the federal government.
Some people may feel that the risk of data being
wrong or misused is still a price worth paying in these fearful times, and
that, anyway, they have nothing to hide since they haven’t done anything wrong.
It is unlikely that eight-year-old Mikey Hicks has done anything to earn government suspicion,
but he has endured extra screening at airports since he was a toddler. Babies have been kept from boarding planes. The late
senator Edward Kennedy, Rep. John Lewis (D-Georgia) and people with
the names Robert Johnson and Gary Smith have struggled to get off terrorism
watch lists. Former US assistant attorney general Jim Robinson - once the Justice Department’s chief criminal
prosecutor - has been delayed and interrogated at airports despite holding top
secret security clearance. Former Marines with honorable discharges are also
among those who are on the “no-fly” list and are not permitted to board planes.
We don’t know much about the process used to add
people to watch lists, or about what constitutes a “credible tip.” We do know that the use of data mining to
assemble a chain of associations and digital linkages could have serious
consequences for anyone flagged by an algorithm primed to detect suspicious
behavior.
In November 2006, the Federal Register disclosed the
existence of the Automated Targeting System, which relies on a 5.3
billion-record government database to assign a numerical “terrorism risk rating”
to each traveler who leaves and enters the US by air, train or land - the
higher the score, the higher the risk. The risk assessment data mining is
carried out by analysts at the National Targeting Center run by Customs and
Border Protection, and the risk profiles of individuals will be retained for 15
years (reduced from 40). An individual cannot see or challenge his
or her rating, but that data can be shared with state, local and foreign
governments and used in hiring and contracting decisions. One traveler who did manage to see the records collected on
him through a Freedom of Information Act (FOIA) request discovered in his file
a note from a Border Patrol officer about the book he was carrying with him at
the airport, “Drugs and Your Rights.”
What is next for the right to freedom of movement? TSA head John Pistole, a former FBI agent, wants to expand from 25 to 37 the
number of its Visible Intermodal Prevention Response (VIPR) task forces. These
teams of TSA agents, federal air marshals, behavior detection and canine
officers conducted some 8,000 searches of ports, ferries, subways, railway and
bus stations, bridges, and private cars and trucks over the past year, including the warrantless
search of all the passengers who were getting off an Amtrak train
in Savannah, Georgia.
The Department of Homeland Security (DHS) is
meanwhile testing Future Attribute Screening Technology (FAST), which
purportedly would expose criminal intentions by using sensors to measure
flicking eyes and rapid blinks and scan for elevated blood pressure. Detecting “malintent” to fight terrorism is the theme of many of the programs
in which the DHS is pouring millions of dollars, from the Insider Threat
Detection Project, which derives and validates “observable indicators of
potential insider threats before the insider commits a hostile act,” to the
Violent Intent Modeling and Simulation project, which assists analysts in “determining
whether radical groups are likely to engage in political violence.”
It is not just the First Amendment rights to freedom
of expression, assembly and religion and Fourth Amendment protections against
unreasonable searches and seizures that are endangered by the emerging
surveillance state. When algorithms detect “pre-crime” in a world in which we
are all potential suspects, we have sacrificed such core values as the
presumption of innocence and the right to privacy. [3]
The more the United States is transformed into a
nation of citizen spies, the greater the risk to personal privacy - the “right
to be let alone,” in former Supreme Court Justice Louis Brandeis’ words. This
risk was well recognized in 2002, when a public outcry greeted then-attorney
general John Ashcroft’s Operation Terrorism Information and Prevention System (TIPS),
which was intended to recruit workers with access to private homes to be the
government’s “eyes and ears” to gather information to be deposited in law-
enforcement databases. The intensity of the opposition led Congress to
explicitly cancel the program later that year, but, like the Defense Advanced
Research Projects Agency’s (DARPA) Total Information Awareness program, it has
lived on in subsequent operations involving various kinds of “terrorism liaison
officers.” For instance, firefighters in major cities have been trained by the
DHS “to be alert for a person who is hostile, uncooperative or expressing hate
or discontent with the United States” or to be on the lookout for people who
have “little or no furniture other than a bed or mattress.” It is not just the
nation’s police forces that have been trained to compile Suspicious Activity
Reports (now the subject of FOIA litigation). School
bus drivers are being enlisted in the fight against terrorism, and 20,000 mall security guards are being recruited to spot
terrorists among shoppers, while the DHS’ “If you see something, say something”
campaign is being expanded from transport systems to Walmart stores,
the Mall of America, hotels and the sports industry.
Along with human eyes, the nation’s inhabitants are
increasingly likely to be watched by high-tech surveillance camera networks
erected through lavish DHS grants. Lower Manhattan has 3,000 in place as part
of its “Ring of Steel” - which includes radiation detectors and automatic
license plate readers to track cars.
Modern cameras are not just extremely powerful. They have
the potential to be fitted with facial recognition software, eye scans, X-ray
vision, radio frequency identification tags and 3-D tracking devices. The
digital information they record can be immediately fed to fusion center and law
enforcement databases to enhance a target’s personal profile. And they are ripe
for abuse: in April 2009, two FBI workers in an FBI satellite control room used
surveillance cameras to spy on teenage girls as they were trying on prom gowns
in a West Virginia mall.
As evidence grows of the harmful impact of
surveillance technologies on personal lives and our notion of ourselves as a
people, will communities organize to roll back the surveillance state? Or are “we
the people” destined to become “unwitting victims of the darkness”? In our
final post, we will turn to the potential for resistance.
1.
September 10, 1976.
2.
There is speculation that the Obama
administration is using Section 215 of the USA Patriot Act for a “classified-collection
program” under which it collects phone location data. See Time Magazine, June
24, 2011.
3.
We have entered the territory of the 2002 film “Minority
Report,” which features a specialized “Department of Pre-Crime’“ where psychic “precogs”
discern which “criminals” to pursue before they commit crimes.
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