Government Spying in the New Era

How technologically advanced are we?

Camera The United States undoubtedly possesses the most sophisticated surveillance and spying technological capabilities on the planet. Technological abilities that are public knowledge include electronic tapping phone conversations, high resolution satellite photography, sophisticated GPS tracking, and the ability to scramble or alter electronic communications. Technologies that we do not know about, but suspect, include the ability to emit pulses that can undetectably obliterate electronic equipment, the ability to monitor all forms of Internet traffic, the ability to tap cell phone conversations remotely, the ability to track a person’s location real-time, and much more. Luckily, United States laws prohibit misuse of these remarkable technologies and specifically disallow their use against American citizens. Or has that changed with the advent of the Patriot Act?

What has changed?

With the introduction of the Bush administration, the policy of intercepting information in motion changed to a policy of seeking out information at rest. When the World Trade Towers were destroyed by terrorists on September 11, 2001, the stance was changed from a defensive stance to a stance of heading off the enemy before they can strike first. Hence, the United States government has deemed it acceptable to take a more active stance in surveillance activities and many believe this new position infringes on Americans basic rights to privacy, rights that were guaranteed by our Constitution, but may have been infringed by the Foreign Intelligence Surveillance Act, the Patriot Act, and individual actions by members of the United States government.

The Foreign Intelligence Surveillance Act

The Foreign Intelligence Surveillance Act, enacted in 1978, dictates the procedures and limitations the federal government must respect when spying on its foreign neighbors – and domestic citizens. When a law agency desires to spy on a U.S. citizen, they must first appear before the Foreign Intelligence Surveillance Act (FISA) Court to obtain approval. Generally this approval will only be granted if (1) there is probably cause that a crime was committed or is going to be committed, (2) the “conversations” that are going to be tapped must be described in detail, (3) the surveillance is only for a limited period of time, (4) the surveillance must end when the conversation sought is actually obtained, and (5) the court must oversee and limit the use of the intercepted conversations. These rules are very important for one simple reason – the Fourth Amendment to the U.S. Constitution which guarantees our right to privacy, a right that is fundamental to a democratic society. Security of one’s privacy against arbitrary intrusion by the police is basic to a free society. An exception to the limiting FISA procedure is an executive order by the President of the United States.

The Supreme Court has acknowledged that the President can claim special authority for warrantless surveillance if it is in the interest of National security. President George Bush is one of several recent U.S. Presidents who have skirted FISA and issued an executive order to spy on our citizens. U.S. District Judge James Robertson resigned from the FISA court in 2005 in protest over Bush’s shirking of these protective policies.

FISA court member, James Robertson, resigned in late 2005 without explanation but the Washington Post quoted two sources that indicated Robertson resigned distinctly in protest of George Bush’s clandestine authorization of domestic intelligence work. Robertson expressed deep concern over the allowance of warrantless surveillance programs authorized by the President – most likely feeling that they were legally questionable if not outright illegal.

That the protection of the Fourth Amendment rights and the FISA ACT by our government has been, is, and will be violated is inarguable. The FBI’s 1970’s COINTELPRO operation brought to light these violations when they were deemed guilty of harassment of anti-war protestors and dissenters that included illegal wiretapping. One odd facet of this type of exploitation is the allowance that the surveillance results can actually be used in criminal proceedings as long as the primary purpose of the surveillance was for intelligence gathering – countless court cases have utilized this loophole. And many are shocked to discover than many lower courts have actually found FISA unconstitutional. With all this controversy, loopholes, and questionable powers, surely the government will tighten the reigns on this madness? Few realize that the Patriot Act actually amended the FISA rules and made many of the rights protected by the Fourth Amendment “null and void”.

The Patriot Act

The USA Patriot Act, or Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (yes, that’s really the title of the Act), was passed in late 2001. It introduced a plethora of legislative changes which significantly increased the surveillance and investigative powers of U.S. law enforcement agencies. Passed on October 26, 2001, just six weeks after the September 11, 2001 terrorist attacks against the World Trade Towers, the Act was rushed through the typically structured legal processes, on the supposition that the United States was sitting in a dangerous position and left vulnerable to widespread attack by terrorists. At the time of Patriot Act passage, people were anxious and with the understanding that fear is the greatest motivator of all, that terror was primed by persons uniquely interested in seeing the Act passed. Daily speeches about the evils that could be perpetrated against the United States, how vulnerable we are, and the threat of a nuclear attack, were propagated with little explanation of how eliminating basic Fourth Amendment rights would truly offer protection against such terrorist attacks. John Podesta, White House Chief of Staff from 1998 through 2001 said:

The events of September 11 convinced … overwhelming majorities in Congress that law enforcement and national security officials need new legal tools to fight terrorism. But we should not forget what gave rise to the original opposition – many aspects of the bill increase the opportunity for law enforcement and the intelligence community to return to an era where they monitored and sometimes harassed individuals who were merely exercising their First Amendment rights. Nothing that occurred on September 11 mandates that we return to such an era.

In addition to priming the American public with fear in preparation for the passing of the Patriot Act, it is undeniable that Congress themselves were pressured with undue fear. After the September 11th attacks, the bill was passed to Congress. Attorney General John Ashcroft, using typical “business like” pressure, gave Congress one week to pass the bill. When congress wavered, Ashcroft warned them that further terrorist attacks were imminent and the weight of American deaths would weigh on Congress’s heads if the bill was not passed immediately. The bill flew through the House and Senate and was signed into law in only six weeks. Surely such a hurried bill, with little time to prepare or debate, would only introduce minor changes to our existing laws?

The Patriot Act modified and amended the following:

• Wiretap Statute
• Electronic Communications Privacy Act
• Computer Fraud and Abuse Act
• Foreign Intelligence Surveillance Act (mentioned above)
• Family Education Rights and Privacy Act
• Pen Register, Trap, and Trace Statute
• Money Laundering Act
• Bank Secrecy Act
• Right to Financial Privacy Act
• And many more…

These amendments, in all cases, loosened the reigns on surveillance and intelligence gathering personnel. The new amendments walk dangerously close to violating fourth amendment rights and many believe they cross the line entirely. Following are examples of how U.S. citizen’s rights to privacy and autonomy changed:

• The Patriot Act makes it much easier for law enforcement to use pen registers and “trap and trace” devices. Pen registers are devices used to collect all outgoing calls placed on a phone while “trap and trace” devices capture all incoming calls. The amendments also makes these devices applicable to computer communications which opens the door to a plethora of Internet tracking including what web sites were visited, email communications, newsfeeds that were read, and logs of online chats. With the advent of the Internet and its widespread use in the daily lives of Americans, the doors are basically wide open to allow spying of all aspects of American lives. How does the Act make the use of these devices easier? An attorney simply certifies that the information to be gathered is likely to be relevant and the judge is required to approve the devices use. Lack of judicial discretion, the oversight of judicial personnel who review and determine whether an act is legal or not, removes one of the checks and balances that are required to prohibit abuse of these powers.
• The Patriot Act makes it much easier to obtain personal financial information and student information. No elaborate courts or formal approvals are needed – simply certify that the information is needed for a criminal investigation and a court order is issued automatically – probable cause is no longer even so much as a factor to be considered.
• Search and seizure rules were loosened by the Patriot Act. The controversial “sneak and peek”, “secret search”, and “covert entry” provisions mean law enforcement agencies can secretly search your home, even on a routine basis, without ever letting the owner know that their home was entered. Prior to the Patriot Act, it was required that the owners be notified if their home was searched or entered for any reason whatsoever. To put it bluntly, your home is no longer a private, protected abode.
• The innocuous sounding “interception of computer trespasser provision” sounds harmless at first, but examine the loophole that was opened with its introduction and the provision that is now allowed is mind-boggling. Under the Patriot Act, any person who suffers a computer intrusion may request the assistance of law enforcement and grant them the right to monitor all traffic to and from the compromised system. The end result – any Internet Service Provider or “central routing hub” may request monitoring of the traffic to and from their systems. For an ISP, that means all Internet traffic coming from and going to their customers. With hacks and virus attempts occurring constantly on the Internet (it takes an average of 10 minutes for an unprotected machine on the Internet to become infected), these requests can come at any moment and amount to the ISP holding open the door for law enforcement agencies to monitor all Internet communications (e.g. by using the infamous FBI’s Carnivore tracking and data mining tool). The enormous possibilities for corruption and abuse have never been greater.
• The Patriot Act provides that aliens may be detained indefinitely, as long as it takes, pending their removal from the United States. The Defense Department argues on their web site that this amounts to “denying bail to a criminal defendant”. Meanwhile, Muslim detainees at the infamous Guantanamo Bay facility, sat for years waiting release, a practice that was subsequently deemed unconstitutional by the above mentioned James Robertson. Still, the Act stands and the practice of detaining a citizen indefinitely continues.
• Do not presume that any of the above mentioned changes apply solely to foreign terrorists. The Patriot Act also redefined the term “domestic terrorism” with such a broad definition that peaceful organizations such as Greenpeace and Amnesty International could fall within their definition. This opens the doors for harassment, spying, and more if these organizations dissent against sought after government policy. It also allows the inclusion of any American citizen.

New rules, new tools

The National Security Agency falls with the realm of the United States Defense Department. It is responsible for communications intelligence and security. It has always been a clandestine organization and very secretive. It is unique in that it was established in 1952 under a presidential directive and is therefore relatively immune from Congressional review. It is the most secret of all U.S. intelligence agencies and maintains no contact with the public or the press. The new playing field allowed by the Patriot Act, give it the ability to cast a wide net and to act in real time with power that is almost universal and unchecked.

The tools that NSA utilizes in its surveillance and information collection activities is top secret of course, but clues may be gained from misshapen comments during public hearings and by speculation based on past conduct and the public knowledge of the outcome of publicized surveillance activities. For instance, it is believed that the newest tools allow the NSA to remotely extract information from your computer even if your computer is not tied to the Internet, providing they can get close enough to your hardware. That they can tap and extract information from your computer while it is connected to the Internet is a given – remember, the United States in essence, controls the protocols that govern the Internet as well as the major routing points that all information travels through. Patrick Keefe, author of Chatter: Dispatches from the Secret World of Eavesdropping, recently was quoted by NBC News as saying: “So you essentially get a reversal of the traditional paradigm where you or I would go to the computer. We would sit down at our computer and we look out at the Internet through the computer. At the NSA, they actually use the Internet to look into people’s computers.”

With the new provisions allowed through the Patriot Act, personal financial information can easily be tracked through banks, merchants, credit card companies, and tax entities. The danger is evident when you consider that the buying habits of a consumer can paint a remarkable accurate picture of that person including their health, psychological well being, breadth of knowledge, intelligence, character flaws, and state of mind.

In addition, the tracking of financial information combined with top-secret geo-tracking devices allows authorities the ability to pinpoint a person’s physical location at any given time. Geo-tracking devices may include real-time, rapid succession, satellite photography combined with sophisticated computer analysis of those photographs. For example, if a satellite photo of your garage can be shot every 5 seconds, it would be possible to determine exactly when your car pulled out of that garage. Photograph analytical software systems exist that allow real-time recognition of specific objects within a photo – using such systems the automobile could be recognized and tracked real-time, cataloged, and data mined to determine exactly where a person moved about during any specified period of time.

The information gathered using these techniques is of course, very granular, consisting of millions of bits of data. The NSA has developed advanced analytic techniques called NIMD, or Novel Intelligence in Massive Data, which serve to data mine these massive amounts of data. This is the key to the entire information gathering process. Combining locational data, buying habits, and other personal information, any question can be answered using computerized analysis of the data. Throw data collection results from other government organizations and you have a complete picture of a person.

The National Media Exploitation Center

Speaking to the 9/11 Commission in 2002, the FBI described its participation in a secret organization based in Virginian, known as the National Media Exploitation Center. “The National Media Exploitation Center was established in late 2001 to coordinate FBI, CIA, the Defense Intelligence Agency (DIA) and National Security Agency (NSA) efforts to analyze and disseminate information gleaned from millions of pages of paper documents, electronic media, videotapes, audiotapes, and electronic equipment seized by the U.S. military and Intelligence Community in Afghanistan and other foreign lands,” the FBI statement read. We now know that that suspected consolidated organization does indeed exist.

In addition, other partners in this data mining initiative could include the Internal Revenue Service and the National Archives, who themselves have publicly acknowledged a multi-year project, spearheaded by Lockheed-Martin, to digitize and digitally archive petabytes of nationally held information. Their goal is simple – to digitize and make instantly available, every bit of information held and archived by the federal government since the inception of this country.

Abuse of Power is now Possible and Unchecked

Tracking and surveillance in an effort to hinder terrorism is perfectly acceptable and nobody would argue that they would desire to have their personal safety insured. But as past history as proved (and is to be expected), the powers allowed to our governmental entities are often abused. When power is granted or possessed (be it political power, money, or otherwise), most people will do anything to ensure that power is kept intact. In addition, simply having the power is not enough; the power must be welded in order to prove its validity to the person who possesses it. The current abilities (satellites, computers, electronic tracking of email, web sites, purchases) are there – the checks and balances are not.
There’s no argument that the means now exist to generate “tracking profiles” for any inhabitant of the United States. The FIS Act and Patriot Act have loosened the reigns enough to allow almost unfettered use of those means. The capabilities available far exceed anything we’ve seen in the past and in the past, even the archaic capabilities afforded the United States government, have been abused in many instances. We know exist in an environment where these means are not only now legal but exist without checks and balances required to control the abuse.

President Bush and the Proclaimed Oversight

President George Bush was quoted on December 19, 2005 as saying ““We’re guarding the civil liberties by monitoring the program on a regular basis, by having the folks at NSA, the legal team, as well as the inspector general, monitor the program, and we’re briefing Congress. This is a part of our effort to protect the American people.” What President Bush failed to divulge was the fact that in our current environment, domestic spying is termed a “waived special access program” and hence congressional oversight is not even a remote possibility.

The so called “Big Eight” on Capitol Hill — the speaker and minority leader of the House, the majority and minority leaders of the Senate, the chair and ranking member of the Senate Select Committee on Intelligence and the chair and ranking member of the House Permanent Subcommittee on Intelligence, are the only overseers in these “special access programs”. The Big Eight is not allowed to divulge anything about these programs to other congressional leaders, their staff, their counsel, nor their families. They are sworn to secrecy and prevented from discussing the matters with anybody or from seeking outside legal council or technical assistance when questions arise. As Senator Jay Rockefeller (West Virginia) proclaimed, ““Clearly, the activities we discussed raise profound oversight issues. “As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse, these activities.”

The federal government has claimed that times have changed and changes to our existing laws were needed. What the American public must understand is that these same changes produce an exact requirement that pertains to their personal liberties as well – these very changes demand precise restrictions on how these technological advances may be utilized. Allowing more freedom to skirt American liberties is the absolute opposite of what should have been allowed.

Knowledge is power and secret knowledge is secret power –and the desire for power always leads to misuse of that power. Who watches the watchers?

Sampling of the Stances of our Public Officials

Government Representatives who have distinctly questioned these new practices:
James Robertson
Chuck Hagel (Nebraska)
Olympia J. Snowe (Maine)
Arlen Specter (Pennsylvania)
Dianne Feinstein (California)
Carl M. Levin (Michigan)
Ron Wyden (Oregon)
John Rockefeller (Virginia)
Nancy Pelosi (California)
Colleen Kollar-Kotelly (FISA Court Presiding Judge)

Government Representatives who have publicly agreed with these practices:
Roy Blunt (Missouri)
Pat Roberts (Kansas)

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