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.”
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.  “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.
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.
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.