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The Zombie Bill: The Corporate Security Campaign That Will Not Die
Reason to be afraid #4:
The government-corporate surveillance complex is consolidating. What has been a confidential but informal collaboration now seeks to legalize its special status.
July 9, 2012, was a scorcher in Washington, DC, with afternoon temperatures over 100 degrees, when an audience of about fifty think-tankers convened in a third-floor briefing room of the Senate’s Russell Office Building on Capitol Hill. Then-Senator John Kyl sponsored the show, although he did not appear in person. He had invited the American Center for Democracy (ACD) and the Economic Warfare Institute (EWI) to explore the topic of “Economic Warfare Subversions: Anticipating the Threat.”
At the front of the room, under a swag of the heavy red draperies and the American flag, sat the panel. The lineup was peculiar. The speakers, waiting for the audience to settle in, included a number of very big names from the intelligence community, including General Michael Hayden, by this time the former director of both the CIA and the NSA; James Woolsey, former CIA director; and Michael Mukasey, former Attorney General for George W. Bush.
And then there were the others. First among them was the facilitator and director of the Economic Warfare Institute herself. Dr. Rachel Ehrenfeld was a relative unknown who, throughout the long afternoon, would aggressively use her academic title at every opportunity, an unusual practice in this company. According to the available brochure, one of the other panelists would argue that jihadists were setting the wildfires ravaging Colorado that summer. Another, a former alternate director for the United States at the International Monetary Fund (IMF), would present a memorable anecdote involving complex terror scenarios not even Hollywood had ever produced.
EWI [the Economic Warfare Institute] is of the strong opinion that threats to the US economy are the next great field of battle.
In total, the panel included Doctor Ehrenfeld and eight white American men. At precisely 2:00 p.m., Ehrenfeld approached the podium. She opened her remarks with the announcement that the United States was target-rich for economic jihad, apparently a new concept for only a few of us in the audience. We, the uninitiated, exchanged nervous glances as she went on to explain the “cutting edge threats” that kept her up at night. She pointed out that both September 11, 2001, and September 15, 2008, were potentially devastating to the United States. One attack was the work of Al-Qaeda, a foreign enemy, and the other was self-inflicted by the management of our own financial institutions. However, Ehrenfeld said, we could not rule out the possibility that economic terrorists were: a) responsible for or b) learning from the economic collapse that precipitated the Great Recession. She also referenced the “flash crash” of May 6, 2010, when the Dow lost more than one thousand points in a few minutes, only to regain six hundred of them minutes later. Ehrenfeld reminded us:
Still, two years later, the joint report by the SEC [Securities and Exchange Commission] and the Commodity Futures Trading Committee did not rule out “terrorism” as a possible cause for the May 2010 “flash crash,” and the entire financial industry still has no uniform explanation of why or how this event occurred. . . .
EWI is of the strong opinion that threats to the US economy are the next great field of battle. Indeed, we are already at economic war with such state actors as China and Iran and such nonstate actors as Al-Qaeda and its affiliates. The future battlefield is vast: it not only includes the realms of cyber and space but also of banking and finance, market and currency manipulation, energy, and drug trafficking. The list could go on and on.
Wait! We’re at economic war with China? Most of us did not know that. Apparently the Chinese don’t know it either because their government holds a large load of US debt. After the European Union, the United States is China’s largest trading partner. And after Canada, China is the United States’s largest trading partner.
And what about an economic war with Al-Qaeda? Aren’t we winning that one? We have Wall Street and the NSA. They have bitcoins and Waziristan.
The afternoon becomes increasingly fantastic. The EWI believes, Ehrenfeld informs us, that the US faces mass terror-induced electronic/ economic calamity. The fact that this has not yet occurred, Dr. Ehrenfeld cautions us, does not mean it isn’t going to.
When she finishes, she turns the microphone over to General Michael Hayden, now a principal at the Chertoff Group, a well-connected security consulting firm run by Bush’s former secretary of Homeland Security, Michael Chertoff. General Hayden stands to speak about “the most dangerous weapons in the most dangerous hands – how much should we fear hacktivists achieving statelike capabilities?” The answer to this rhetorical question is “Quite a lot.” Speaking as the former director of the NSA, he tells us that we want the government to go to the cyber-domain to defend us. In that domain, practically every advantage goes to the attacker because the environment is both insecure and indispensible. In other words, he says, he can’t defend us without the proper weapons.
Like Ehrenfeld, Hayden is frightening, but unfortunately, he does not tell us that afternoon what the proper weapons are. Nonetheless, as many in the room knew, the battle to acquire them is at that very moment heating up in the US Senate.
Between them, Ehrenfeld and Hayden establish a scenario in which the United States is unprotected from flash crashing at the hands of terrorist hacktivists waging economic jihad, and the next speaker is no relief. Daniel Heath, the former US alternate director at the International Monetary Fund (IMF) and currently a managing director at Maxwell Stamp, opens his remarks by inviting the audience to “Imagine this.”
All of these people are creative and emotional. Just imagine what they could do if they were talking about a real pending catastrophe like climate change.
A foreign country holding about a trillion dollars in US debt demands an arrangement to swap it for the agricultural production of California. Alarmed, capital begins to flee the United States. It is Christmas, and a heavy snowstorm slams into the Northeast, knocking out the power grid. An act of sabotage hits the Washington, DC metro, and a couple of assassinations occur, both high-value targets and random ones. Finally, a biochem incident or two occurs, like anthrax or something in the water supply.
Heath just keeps on going. Shadowy parties might manipulate the price of oil and a real economic crisis would occur – like the one of September 15, 2008. He suggests, then, that September 2008 was actually a jihadist plot. Probably.
What if terrorists aim to engineer a renewed financial meltdown? Is it possible? How would the financial system handle a massive attack on New York City? Is enough being done to buttress financial resilience – to limit the contagion of cascading failures throughout the economy? In what ways could different kinds of terrorist attacks succeed in destabilizing our financial sector and impair the real economy?
All of these people are creative and emotional. Just imagine what they could do if they were talking about a real pending catastrophe like climate change.
David Aufhauser, former general counsel and chief legal officer of the Treasury Department, takes the floor. He announces the title of his talk, “Transnational Crime; Unholy Allies to Disorder, Terror, and Proliferation,” and pauses to survey the room. Gauging the impact of that, he clears his throat and proceeds. Aufhauser speculates about an alliance between Iran, the Revolutionary Armed Forces of Colombia, and then-president of Venezuela Hugo Chavez. Among them, he suggests, they are about to create nuclear weapons for Venezuela. Terror, psycho-crime, drug-fueled guerrilla warfare, and jihad would come together for the politically purposeful annihilation of US-based banks. We must identify nodes in the corruption network and break the circuitry, Mr. Aufhauser urges everyone.
After a few more presentations, Michael Mukasey wraps up as the final speaker. He is the hard closer, talking about legal perspectives on economic terror and the need for comprehensive electronic surveillance inside the United States. Essentially, he says, the law – whether national or international – is unequal to the task of controlling the contemporary technology of war. The law needs to stay out of the way, he tells us. The rules won’t work and the current regime is inadequate. Criminal law punishes after the act, but in warfare, we must often take action before the bad guys act. And the only way we can do that is to monitor them, so that we can intervene before they execute their plan for us. In addition, because we don’t know exactly who the bad guys are, we’re going to have to monitor everyone, and our “too big to fail” banks must help. The NSA, the CIA, Bank of America, and Citigroup will work together to protect all of us – and our data.
The law gets in the way. In the face of this aggravation, what is a clever tyrant to do? Simple. Change the law.
Why isn’t this a comforting prospect? Perhaps because in 2012, when Dr. Ehrenfeld’s conference took place, we were still recovering from the loss of our livelihoods that occurred as a consequence of the banks’ last exercise in risk management during the run-up to the financial crisis of 2008. This reality, however, did not deter the Economic Warfare Institute from concluding:
In dealing with new economic threats and circumstances, the law has a strong tendency to get in the way. This is not to disparage the law but, rather, to recognize that new circumstances beg some jettisoning of old principles and the creation of new ones.
Yes, in a democracy, the law does get in the way. Of course, the logical next question is: get in the way of what, exactly? Even without an answer to the question, this statement from a roster of former US law enforcement and intelligence officials, many of whom took an oath to uphold the Constitution and the law of the United States, is unnerving.
This is the way a would-be dictator thinks. Angered by criticism of him that appears in a newspaper, the prospective autocrat wants to order the offending journalist arrested. But the law gets in the way. Frustrated by political opposition to a program he’s promoting, the head of state imagines closing down the legislature. The law gets in the way. In the face of this aggravation, what is a clever tyrant to do?
Simple. Change the law.
The Cyber Intelligence Sharing and Protection Act (CISPA) is the new law that will supersede the obsolete statutes and principles now in place. In April 2012, three months before Michael Mukasey and his cronies spoke at the Economic Warfare Conference, the House of Representatives passed CISPA: legislation that would allow the keepers of the country’s finances and infrastructure to share and protect the voluminous data they collect about their customers with America’s military intelligence agencies and the Department of Homeland Security. And vice versa. The exchange could occur without warrants and beyond the reach of the Freedom of Information Act. That summer, Senator Kyl was doing his damndest to keep CISPA alive in the upper chamber, where it lacked sufficient support. The usual suspects opposed it: the ACLU, the Center for Constitutional Rights, the Electronic Privacy Information Center, the Government Accountability Project, the Electronic Frontier Foundation, and many others. For many months, those interested in the bill kept a campaign building, and Kyl’s conference on that July afternoon was to alert the think-tankers to the urgent need for CISPA.
There is a determination – a tenacity and relentlessness – about the campaign for CISPA that seems unusual, even now.
Ultimately, CISPA failed in the Senate that year, but in February 2013, Congressman Mike Rogers, Republican of Michigan, reintroduced it in the House of Representatives, just after the president signed his executive order on cyber-security. As the timing of CISPA’s re-introduction made clear, the executive order was regarded by the EWI and its friends as inadequate and flabby. In fact, they’re right; it is a lengthy list of bureaucratic provisions that inspires neither committed support nor opposition – the kind of thing that gives government a bad name for creating metric tons of paper work for little gain. In brief, the order calls for a cyber-security framework, together with recommendations, reports, consultations, and inconceivably complex policy coordination. The drafters, however, did learn from the objections to CISPA: the executive order did not explicitly weaken existing privacy laws or require specific collection of data. Nor did it put an intelligence agency in the lead for the development of a cyber-security framework.
In the meantime, CISPA was making its way through the Congress, and on April 19, 2013, the bill once again passed the House with a few half-baked privacy protection amendments tacked on. It then headed for the Senate, where it had considerable support. Opponents called it “zombie legislation” because it refused to stay dead after it was defeated in 2012, even for six months.
“We’re talking about the government legally reading your emails, Facebook messages, your Dropbox files, and pretty much anything else you had stored online, in the cloud.”
There is a determination – a tenacity and relentlessness – about the campaign for CISPA that seems unusual, even now. The forces lined up behind it are impressive: General Dynamics, Lockheed Martin, General Electric, Northrop Grumman, SAIC, Google, Yahoo, the US Chamber of Commerce, IBM, Boeing, the Business Roundtable, Time Warner Cable, American Petroleum Institute, among many others. Bank of America and Citigroup support CISPA behind the veil of the American Bankers Association and the Financial Services Roundtable. Google, Yahoo, and Microsoft also signed on through a proxy: an industry association called TechNet. It’s fairly safe to say that when you’re on the other side of the issue from this league, you’re at a distinct disadvantage.
For the American public, the stakes in the CISPA battle are high, which explains the resolve behind the corporate campaign for it. A tip sheet called “Tech Talker” explains what’s in play here for the average citizen:
We’re talking about the government legally reading your emails, Facebook messages, your Dropbox files, and pretty much anything else you had stored online, in the cloud.
That sums it up.
On February 14, the Business Roundtable (BRT) released a page of points explaining the position of its membership in support of CISPA:
From our perspective, the missing piece of effective cyber-security is robust, two-way information sharing, with appropriate legal and privacy protection, between business and government.
The current information sharing environment is not supported by strong legal protections to safeguard companies that share and receive cyber-security information from civil or criminal action.
Furthermore, there are not nearly enough security clearances. In many cases, only one or two employees are cleared even within very large global enterprises, which create difficulties in communicating problems and acting quickly across global operations.
The fight for CISPA continued through 2013.
In June, however, the CISPA campaign hits a snag: the Snowden disclosures. Edward Snowden begins releasing documents that expose the United States as the major cyber-attacker in the world. It’s not the Russians, Chinese, or Iranians. Nor do Somali and Yemeni jihadists pose serious cyber-threats to American banking systems and electronic communications. The Snowden revelations are extremely inconvenient for the government-corporate surveillance complex because the hefty expenditures for the next round of cyber-battles depend on a persuasive and (at the very least) semi-hysterical cyber-terror narrative. Billions are at stake, and even if we already know the truth, the BTR and the NSA aren’t going down without a struggle.
It is 8:00 a.m., on October 30, 2013. Washington is socked in for a dreary, drizzling day, as the cyber-security crowd gathers once again at the Ronald Reagan Trade Center, three blocks from the White House. They will hear from a lineup of cyber-experts on the threats to critical infrastructure posed by “those who would do us harm.” This clumsy reference to our putative antagonists will be used throughout the morning. As the experts talk about the calamitous consequences of a cyber-attack on Wall Street or our electric power grid, they never actually specify who is going to do this. Or why. In fact, the whole threat rests on the juvenile assumption that someone or some government – maybe Russia or a hacktivist group – will cause a disaster just because they can. Well, maybe they can.
Around noon, Keith Alexander sits down for an onstage interview. It’s about fifteen minutes in, and he’s behaving badly. He’s trying to be flip and coy with his very pretty interviewer, Trish Regan of Bloomberg, but he’s not coming off well. He’s too old and geeky to be at all amusing in this way. Regan asks him a question about NSA capabilities, and Alexander answers, “I don’t know. What do you think?”
She looks slightly perplexed. “But I asked you.”
“And I asked you,” says Alexander. He seems to be having a good time, but there’s a certain amount of embarrassed coughing and seat shifting in the audience.
Silent moments pass, and Alexander begins to fluster; it seems that Regan is distracted by someone talking to her through her earpiece.
“General,” she finally says, “this is just coming across the wire now, and we have no confirmation, but the Washington Post is breaking a story that the NSA has backdoor access to data from Google and Yahoo. Is that true?”
Unless he knew that the story was about to break, he denied the truth extemporaneously without actually lying.
A hush falls on the anxious audience. Instantly, Alexander is a different person altogether. Gone is the flirty goofball who wants the pretty lady to like him. In his place is the cagey politician with an awkward yes/ no question on his hands.
He looks earnest and deeply concerned as he replies. “This is not the NSA breaking into any databases. It would be illegal for us to do that. So I don’t know what the report is, but I can tell you factually: we do not have access to Google servers, Yahoo servers, dot-dot-dot. We go through a court order.”
Later, it turns out that the keywords in this answer are server and database. The Post report did not say that the NSA broke into databases and servers. Rather the newspaper reported that the agency taps into the cables that transmit data between servers. So with a barely perceptible sidestep, Keith Alexander gives a truthful answer to a question that wasn’t asked and deftly misleads everyone listening to him.
It’s impressive really. Alexander did this without batting an eye. Unless he knew that the story was about to break, he denied the truth extemporaneously without actually lying.
Regan retreats to safer questions: “Are we catching the bad guys?” she asks.
Alexander pauses again. This time, however, it is probably because it’s not clear, even to him, who the bad guys are.
In America, when we focus, we tend to have a horror of intrusive government.
Except for one bad guy. Everyone knows who he is. Without saying so this morning, it is obvious that the only identified adversary for this group is Edward Snowden. His name comes up again and again. Around 10:30 a.m., one speaker becomes visibly agitated at the idea that Snowden’s disclosures have undermined the case for closer collaboration between intelligence agencies and private corporations about cyber-threats – have quite possibly shot down CISPA for good and all. Larry Clinton, CEO at Internet Security Alliance, bursts out with his opinion that surveillance and cyber-sharing are completely distinct. Real-time, network-speed, machine-to-machine information exchange on cyber-threats has nothing to do with privacy, he asserts with exasperation. His head has turned red and he’s looking at us as if we’re stupid. “It’s a completely different process,” he winds up.
Then there comes a question from the floor: “So why do you need legal immunities?”
This is the question Bill Binney keeps asking. And the discussion at the Bloomberg event this morning shows that these people want legal immunities. The executive order is not good enough. The just-published cyber-security framework coming out of the White House isn’t sufficient, either. There has to be legislation providing immunity. Threatened infrastructure – 80 percent plus of which is privately owned and controlled – is not exchanging cyber-info without protection from the courts. This morning, after all is said and done, that much is very, very obvious.
However free and proud and fierce we consider ourselves, we willingly surrender our civil rights when we believe we’re in danger.
The re-introduction of CISPA in the House of Representatives provoked an angry outcry from the civil liberties people. In America, when we focus, we tend to have a horror of intrusive government. This comes from the old days when the British quartered their horses in our parlors without asking permission, which would almost certainly have been refused. We pay taxes grudgingly; we suspect social programs of widespread fraud; we fear that a repressive police force will confiscate our shotguns someday soon. The only way to convince Americans to go along with the CISPA initiative is to crank up the terror machine again. This explains the quasi-psychotic tone of the briefing by the Economic Warfare Institute in July 2012, as well as the nebulous catalog of cyber-debacles alluded to at the Bloomberg conference.
Our history – the Red Scare of the 1920s, the internment of the Japanese during World War II, and the witch-hunts of McCarthy era – shows that however free and proud and fierce we consider ourselves, we willingly surrender our civil rights when we believe we’re in danger. Each of these groups came under attack by a government that portrayed them as treacherous: the Reds of the 1920s were swarthy, low-class brutes, the Japanese were clannish Asians who were too smart for their own good and wore tiny little glasses, Communists were hirsute, ugly men in cheap brown suits and therefore untrustworthy for that reason alone.
After 9/11, all the old scare tactics came to life. Arab men, of course, became the objects of extreme suspicion. In the rapidly evolving national imagination, it was impossible to reason with them as representatives of other countries because they’re fanatical and insane. They blow themselves up believing that they’re going to paradise where they will debauch seventy-two virgins. In the meantime, they bugger young boys and one another. They have menacing headgear, and their women, whom they treat badly, wear sinister masks. To protect ourselves from these evil people, we allow surveillance, torture, kidnapping, imprisonment, and execution, which are – some of us admit – also evil.
John Kiriakou, the CIA agent who revealed America’s official torture regime, reported his shock when he encountered the actual enemy in Pakistan in 2002: teenage boys who, when captured, cried and shivered and wanted to go home. He said he found himself asking: This is it? These are kids who can’t even devise plausible cover stories for themselves. This is the mortal enemy America mobilized to hunt down and kill?
Now, admittedly, they aren’t all kids, and they aren’t all inept and untrained. The attacks of September 11, 2001, were highly coordinated, but then every propaganda campaign has a kernel of truth at its center. Effective official lies are always based on some credible fact. It’s the extrapolation that reaches the realm of the fantastic. Let’s think about it.
After the Cold War ended suddenly in 1989-1990, the United States was at a loss. The first President Bush was reluctant to declare the hostilities over for fear of economic disruption in the United States and Europe and lack of political direction afterward.
Although the attacks showed the utter uselessness of our alleged defense industries and intelligence services, both raked in huge budget bonuses afterward.
Declassified memos of the last meeting between then-president Ronald Reagan, Mikhail Gorbachev, and president-elect George H. W. Bush in 1988 reveal that Reagan and Bush were stunned by the Soviet offer to disarm unilaterally. A report prepared by the National Security Archives, which obtained the memos, concluded that Bush was unwilling “to meet Gorbachev even halfway.” Nonetheless, of course, the Cold War ended without Bush’s consent. America then struggled through the early 1990s with economic dislocation, later floating its prosperity on an ephemeral dot-com bubble and keeping such defense appropriations as were credible based on the feeble posturing of a dilapidated North Korea. Scanning the world for a believable enemy, the miserable Pyongyang was the best the Pentagon and the intelligence agencies could produce.
America had a brief skirmish with Saddam in early 1991, but then President Bush realized that this was playing with fire and got out quickly. The resounding defeat of the Iraqi military brought Bush only short-lived glory, and with a faltering economy, he failed to win re-election a year later.
And then came September 11, 2001. Tom Drake reported that one senior official at the NSA called the attack “a gift,” suggesting that 9/11 revived the agency’s argument for budget increases by showing the US public that real enemies continued to plot effectively against us. Although the attacks showed the utter uselessness of our alleged defense industries and intelligence services, both raked in huge budget bonuses afterward.
As the post-9/11 years passed, though, the terrorist threat wore thin. In March 2013, the tenth anniversary of the Iraq invasion came and went as barely a blip on the daily news cycle. Paul Wolfowitz appeared on CNN and made a pathetic effort to justify his role in the fiasco, but few remarked about his reappearance. George W. Bush, who presided over the eight years of terror warfare, never surfaced at all; it was as if he no longer existed. Nor did Dick Cheney return for interviews. In 2014, the official hostilities in Afghanistan will end, and it will all be over.
Socially and economically, the United States needs such a respite. Too much of the national wealth has been squandered on the unproductive expenses of war. In 2011, the last year for which we have comprehensive statistics, the US government spent more than $700 billion for defense and international security, more than the thirteen next-highest-defense-spending countries combined. If that kind of outlay is going to continue, with all the competing domestic deficits we have, we’re going to need an imminent danger again very soon.
Beginning about eighteen months after the financial meltdown of September 2008, certain political forces began mobilizing about “the debt.” Budget shortfalls in America would soon be crippling, they warned, and the House of Representatives began to obstruct all financial efforts to operate the government. The Republican caucus in the House refused to raise the debt ceiling without concessions from the White House. Those who rode into Washington with Tea Party support wanted cuts to Medicare and Social Security, programs the corporate elite have long referred to with the derogatory term entitlements. They threatened to shut down the government and refused to pass a real budget. The machinations became more and more creative. In August 2011, the Congress passed the Budget Control Act as a condition for raising the debt ceiling and avoiding national default. The act established the “sequester:” across-the-board budget cuts so draconian and disabling that even the House of Representatives, in the hands of the so-called fiscal conservatives, could never allow them. The Pentagon would take a virtually unprecedented fiscal hit.
Despite this record of repression and recklessness, both the intelligence community and the finance sector are lobbying hard for CISPA.
But it happened. After four months of noise about the cataclysmic consequences of the sequester, the House refused to agree on a deficit reduction program, and the cuts went into effect on March 1, 2013. The Congress let them occur. In the fall of 2013, Tea Party renegades did shut down the government. If the defense industry was paying attention – which of course it was – fear and hate were flagging.
In Washington, though, a few prescient thinkers were getting ready and preparing a new menace: a truly frightening one. At GAP, where we represent whistleblowers from the NSA, the CIA, and the major US banks, we’ve learned that none of these institutions can be allowed to operate with the secrecy, privileged information, and latitude they already have. Using their current powers, intelligence agencies are already conducting wholesale surveillance of American citizens while wasting billions in taxpayers’ money on boondoggle projects, which, if they worked, would be unconstitutional (see Trailblazer). For their part, private banks have been leveraging loans to a point where their solvency becomes an issue, while the individual compensation for senior managers bloats into breathtaking mountains of loot.
Despite this record of repression and recklessness, both the intelligence community and the finance sector are lobbying hard for CISPA. The last time this coalition of forces tried to pass the bill (in the fall of 2012), the legislation died. Its demise was lost in the uproar over the 2012 election that occupied everyone’s attention after August. And then, in February 2013, the CISPA zombie came back from the dead.
After the Snowden disclosures stopped CISPA in the summer of 2013, we gained time to think about why it is that an official exchange of public and private data beyond the reach of citizens is such a bad idea. It’s alarming because it forms the backbone of an alliance between two forces that already have great power, but which do not necessarily operate in the public interest. To be sure, at their best, they do: a democratic government acts according to the dictates of the majority while respecting the rights of the minority, and a private corporation strives to produce and sell the best possible services and goods in a competitive market.
Suppose, however, they’re not at they’re best. Suppose government is captured by finance, and finance is monopolistic and systemically fraudulent. Then suppose that a tenacious law enforcement official with a nasty secret in his personal life is investigating Corporation X. Should the secret come to light, the official could be neutralized, and the problems he or she poses for Corporation X would fade away.
Client No. 9, aka George Fox, called the Emperor’s Club from time to time to request the service of prostitutes, for which he paid handsomely. On February 13, 2008, at around 9:30 p.m., a call girl named Ashley Dupré arrived at room 871 in the Mayflower Hotel in Washington, DC, to meet Client No. 9. Forty-five minutes later, George Fox arrived – by midnight, he was gone.
Dupré called the club then with an after-action report. This call from the Mayflower Hotel to the Emperor Club desk was recorded by the FBI.
George Fox was Eliot Spitzer, the former attorney general of New York. Over the course of his investigations into the fast and loose Wall Street trading in the early aughts, Spitzer had made serious enemies. One of them was Ken Langone, chairman of the compensation committee at the New York Stock Exchange. Another was Hank Greenberg, the former CEO of AIG, which in September 2008 was identified as the firm at the heart of the Wall Street collapse. Spitzer had pressured Greenberg to resign and Greenberg viscerally hated him. Langone, too, openly detested Spitzer after the attorney general exposed him as one of the masterminds behind the spectacular $139 million pay package given NYSE boss Richard Grasso for two years work at the not-for-profit, taxpayer-subsidized institution.
This is the kind of J.-Edgar-Hoover-esque nightmare that civil liberties groups cite when they envision the government/corporate cooperative surveillance to which we are subjected.
As Client No. 9, Spitzer attempted to hide his payments to the Emperor’s Club. He often paid through a shell company and a small bank called North Fork, where he had also caused trouble. On one occasion, North Fork sent an unusually long and detailed Suspicious Activity Report (SAR) to the Financial Crimes Enforcement Network (FINCen), a branch of the US Treasury Department. Another bank, HSBC – also a Spitzer target – generated a SAR about the shell company, and somehow, the two came together.
We know that these SARs entered the databases of the NSA for datamining purposes. We also know that the FBI recorded Dupré’s phone call about Spitzer in February 2008 and that was the end of Eliot Spitzer’s political climb. The New York Times posted the headline “Spitzer is linked to prostitution ring” at 1:58 p.m. on March 10, 2008. In his book about the investigation, Peter Elkind reported that there was audible jubilation on the floor of the New York Stock Exchange and at Greenberg’s Park Avenue office. According to Elkind, Greenberg received a stream of celebratory calls that afternoon, one of them from Langone, who knew details about the investigation of Spitzer that were not public.
This is the kind of J.-Edgar-Hoover-esque nightmare that civil liberties groups cite when they envision the government/corporate cooperative surveillance to which we are subjected. Although Eliot Spitzer was not behaving admirably on that night in 2008, he was doing admirably good work for the public during the day. He was one of the very few public officials to challenge the reckless, value-free activities of the financial district in New York before 2008. Because of his personal misconduct, however, he is no longer working for New York state, and the damage to the public interest may go well beyond that. A fall from grace like his serves as a warning to public interest advocates who might otherwise take on the Greenbergs and Langones of this world. If your personal life is not presentable for one reason or another, you do not want to get yourself crossways with a corporate figure who may have access to the US government’s database about citizens. In other words, if you’re thinking about exposing waste, fraud, or abuse at a powerful corporation, think first about how the most embarrassing thing you’ve ever done will look on CNN.
Then there is Wikileaks, the antisecrecy organization that released the video “Collateral Murder” on April 5, 2010. The video, filmed on the morning of July 12, 2007, showed a street in Baghdad from above – from the viewpoint of the US Army Apache helicopter crew members as they shot the civilians scrambling for cover beneath them. One of the dead was a Reuters cameraman, and two of the wounded were children.
When questioned shortly after the incident, a military spokesman concealed the truth about how the Reuters cameraman died and said the army did not know how the children were injured. Through the Freedom of Information Act (FOIA), Reuters tried unsuccessfully to obtain the video for years, but the recording saw the light of day through only Wikileaks. In October 2010, financial reprisal against the site began. Moneybookers, an online payment firm in the United Kingdom that processed donations to Wikileaks, suspended the website’s account.
In December 2010, PayPal, Visa, Mastercard, Western Union, and Bank of America stopped processing donations to Wikileaks, and by January, 95 percent of Wikileaks’s revenue had evaporated due to the banking blockade.
Internet users trying to protect their privacy are singled out for surveillance by the NSA through Google.
Nonetheless, the website continued to publish the secrets of the US government. On November 13, 2013, Wikileaks posted the draft text of the intellectual property chapter of the Trans Pacific Partnership, a trade agreement being negotiated among the countries of the Pacific Rim. The chapter, negotiated in secret in the name of the American public, contained provisions favorable to the US private sector that could not pass the Congress. If Wikileaks had not obtained and released the draft text, the public would not have known what the US government was negotiating in its name. Official harassment of Wikileaks continues.
Spitzer’s history and Wikileaks’s difficulties are cautionary tales about a capability and cooperation that can be used to target and punish political or corporate enemies, whoever they may be. There are also forms of government/corporate surveillance cooperation that target you. On December 11, 2013, the Washington Post revealed that the NSA piggybacks on Internet cookies to track users from website to website, compile their browsing history and target them for hacking. An Internet company such as Google has almost certainly had occasion to attach its cookies to virtually everyone who uses the Internet with any regularity at all. In brief, the Post’s story showed the connection between the tracking done by commercial websites in order to target commercial messages to the consumers most likely to buy from them and NSA surveillance.
For example, Peter Van Buren, a whistleblower at the US State Department, asks that you think about what a telecom might do to you if you either got in its way or a surveillance partner such as the NSA requested a favor. Consider how you would live if nothing you ever did, said, or wrote appeared anywhere electronic ever. This is the scenario Van Buren imagines as potential reprisal to be visited upon you by Internet service providers if you should become a problem for them or their allies. You are simply deleted and blocked from email, social media, and search engines. Without your knowledge or consent, online access to your public records is restricted. You are deleted from Facebook, Twitter, LinkedIn, gmail, and the rest. In the near future – if it is not the case already – you will have problems communicating with friends, finding a job, renting an apartment, buying a house, voting, getting a credit card, and as time passes, doing just about anything. You will be the last person on earth with a book of stamps and a box of stationery. With CISPA in place, you will have no legal remedy to digital exile. No matter what the damages, no one will be liable.
The danger of cyber-cooperation between the public and private sectors is deeper than a simple privacy concern. We’re not talking about conspiracy theories here. We’re not imagining the fantastic scenario of the government snooping on you just because. We’re not talking about private companies using your personal Internet habits to target you for sales. Although these facts of life are not ideal, that’s not really the point. We’re talking about the collaboration between profit-making corporations and public agencies, such as the FBI and the NSA, which are empowered to target citizens for investigation and potential punishment. This threat is the real one. Secret collaboration between the power of force and the pursuit of profit is the point.