Post 9/11, we moved closer…much closer…to the societal warnings in George Orwell’s “1984.” Before you label me as a “prepper”, conspiracy theorist or anti-government whack-job consider this. What freedoms have you given up, in the name of “national security” since 9/11? You may not even realize how much you have given up because most of the “state’s” new found reach is in the minute details. The U.S. House of Representatives this week did something it should have done years ago – it blocked the continuation of three of the more controversial parts of the PATRIOT Act.
The vote was 277-148 to continue the Act, but a two-thirds majority (284 of those voting) was necessary for the bill to move forward. The PATRIOT Act sections are scheduled to expire Feb. 28 unless further action is taken by Congress. The Republican leadership had placed the bill on an expedited agenda, believing it had the necessary votes. It didn’t count on a loose coalition of liberals and extreme conservatives to oppose the Act. Some 26 Republicans, including seven who are allied with the Tea Party voted against the bill. Had those seven Tea Party members voted for the continuation, the bill would have passed.
The PATRIOT Act was passed about six weeks after the 9/11 attacks. The 342-page bill was drafted in secret by the Bush Administration, had minimal discussion, and most members of Congress hadn’t even read it when they voted for it. Only one of 100 senators and 66 of 435 representatives voted against it, claiming that it sacrificed Constitutional protections in order to give Americans a false sense of security. Most of the Act is non-controversial, an umbrella for previous federal law; the controversial parts taint the entire document. The PATRIOT Act’s “sunset” clause required 16 of the most controversial parts to expire unless Congress renewed them before December 31, 2005. However, in July 2005, Congress voted to extend the entire law.
The PATRIOT Act butts against the protections of six Constitutional amendments: the First (freedom of religion, speech, press, and assembly, and the right to petition the government for a redress of grievances), Fourth (freedom from unreasonable searches), Fifth (right against self-incrimination and due process), Sixth (due process, the right to counsel, a speedy trial, and the right to a fair and public trial by an impartial jury), Eighth (reasonable bail and freedom from cruel and unusual punishment), and Fourteenth (equal protection guarantee for both citizens and non-citizens).
The PATRIOT Act also violates Article I, Section 9 of the Constitution, which guarantees the right to petition the courts to issue a writ of habeas corpus to require the government to produce a prisoner or suspect in order to determine the legality of the detention. Only Congress may order a suspension of the right of the writ, and then only in “Cases of Rebellion or Invasion.” Congress did not suspend this right; nothing during or subsequent to the 9/11 attack indicated either a rebellion or invasion under terms of the Constitution.
Among the provisions of the PATRIOT Act, which 277 House members apparently believe is necessary for American security, is Section 215, which allows the government to seize all library records of any individual. Apparently, the government believes that reading is just another part of a wide terrorist conspiracy. A white-haired grandmother who checks out murder mysteries from the library could be a serial killer, according to the government’s logic.
Several federal court cases, including decisions by the Supreme Court, with most of its members politically conservative, ruled that provisions of the PATRIOT Act are unconstitutional. Implementation of those rulings are slow or under appeal. Among organizations that oppose the PATRIOT Act are the ACLU, American Bar Association, American Booksellers Association, American Library Association, and the National Council of Churches. Among liberals who have led opposition to the Act are Sen. Russ Feingold (D-Wisc.) and Rep. Dennis Kucinich (D-Ohio). Among conservatives opposing the Act are former House Speaker Newt Gingrich (R-Ga.), former Rep. Bob Barr (R-Ga.), who had been a U.S. attorney, Rep. Ron Paul (R-Tex) and Sen. Rand Paul (R-Ky.). Among conservative organizations that oppose the PATRIOT Act are the American Conservative Union, Free Congress Foundation, and the Second Amendment Foundation.
Some of society’s denser citizens have claimed that not only must the nation sacrifice some of its civil liberties in order to defeat terrorism, but that they personally have never had their own rights suppressed. Nevertheless, there are hundreds of cases of persons whose civil liberties have been threatened. In only the first three years after the PATRIOT Act was placed into law, there were about 360 arrests, with only 39 convictions, half resulting in jail sentences of less than 11 months, indicating minor infractions.
Reports from the inspector general of the Department of Justice revealed that the government had consistently exceeded its authority to investigate and prosecute civilians under guise of the PATRIOT Act. Numerous arrests for non-terrorist activity include a couple aboard a flight who were charged as terrorists for having engaged in “overt sexual activity,” and a woman who was jailed three months in 2007 as a terrorist for raising her voice to a flight attendant. In March 2010, President Obama signed a one-year extension on the Act, and now says he wants the Act to continue through 2013. And that may be the worst part of the President’s legacy. The constitutional law scholar and professor, who has strong beliefs for human rights but who has not been forceful in speaking out against the Act’s most heinous sections, is now a leading proponent to extend the very document that conflicts with his principles and the nation’s Bill of Rights.
It seems as if our freedoms are under constant attack. The fourth amendment against unreasonable search and seizure, predator drones and no-knock warrants are commonplace in our society. These things were warned about by the founding fathers. While the founding fathers could not have imagined the power of the internet and digital technology, it too is under attack by government agencies wanting to know more about what we are doing. Mass interception of entire populations is not only a reality, it is a secret new industry spanning 25 countries.
It sounds like something out of Hollywood, but as of today, mass interception systems, built by Western intelligence contractors, including for ’political opponents’ are a reality. Today WikiLeaks began releasing a database of hundreds of documents from as many as 160 intelligence contractors in the mass surveillance industry. Working with Bugged Planet and Privacy International, as well as media organizations form six countries – ARD in Germany, The Bureau of Investigative Journalism in the UK, The Hindu in India, L’Espresso in Italy, OWNI in France and the Washington Post in the U.S. Wikileaks is shining a light on this secret industry that has boomed since September 11, 2001 and is worth billions of dollars per year. WikiLeaks has released 287 documents today, but the Spy Files project is ongoing and further information will be released this week and into next year.
International surveillance companies are based in the more technologically sophisticated countries, and they sell their technology on to every country of the world. This industry is, in practice, unregulated. Intelligence agencies, military forces and police authorities are able to silently, and on mass, and secretly intercept calls and take over computers without the help or knowledge of the telecommunication providers. Users’ physical location can be tracked if they are carrying a mobile phone, even if it is only on stand by.
But the WikiLeaks Spy Files are more than just about ’good Western countries’ exporting to ’bad developing world countries’. Western companies are also selling a vast range of mass surveillance equipment to Western intelligence agencies. In traditional spy stories, intelligence agencies like MI5 bug the phone of one or two people of interest. In the last ten years systems for indiscriminate, mass surveillance have become the norm. Intelligence companies such as VASTech secretly sell equipment to permanently record the phone calls of entire nations. Others record the location of every mobile phone in a city, down to 50 meters. Systems to infect every Facebook user, or smart-phone owner of an entire population group are on the intelligence market.
Selling Surveillance to Dictators
When citizens overthrew the dictatorships in Egypt and Libya this year, they uncovered listening rooms where devices from Gamma corporation of the UK, Amesys of France, VASTech of South Africa and ZTE Corp of China monitored their every move online and on the phone. Surveillance companies like SS8 in the U.S., Hacking Team in Italy and Vupen in France manufacture viruses (Trojans) that hijack individual computers and phones (including iPhones, Blackberries and Androids), take over the device, record its every use, movement, and even the sights and sounds of the room it is in. Other companies like Phoenexia in the Czech Republic collaborate with the military to create speech analysis tools. They identify individuals by gender, age and stress levels and track them based on ‘voiceprints’. Blue Coat in the U.S. and Ipoque in Germany sell tools to governments in countries like China and Iran to prevent dissidents from organizing online.
Trovicor, previously a subsidiary of Nokia Siemens Networks, supplied the Bahraini government with interception technologies that tracked human rights activist Abdul Ghani Al Khanjar. He was shown details of personal mobile phone conversations from before he was interrogated and beaten in the winter of 2010-2011.
How Mass Surveillance Contractors Share Your Data with the State
In January 2011, the National Security Agency broke ground on a $1.5 billion facility in the Utah desert that is designed to store terabytes of domestic and foreign intelligence data forever and process it for years to come. Telecommunication companies are forthcoming when it comes to disclosing client information to the authorities – no matter the country. Headlines during August’s unrest in the UK exposed how Research in Motion (RIM), makers of the Blackberry, offered to help the government identify their clients. RIM has been in similar negotiations to share BlackBerry Messenger data with the governments of India, Lebanon, Saudi Arabia, and the United Arab Emirates.
Weaponizing Data Kills Innocent People
There are commercial firms that now sell special software that analyze this data and turn it into powerful tools that can be used by military and intelligence agencies. For example, in military bases across the U.S., Air Force pilots use a video link and joystick to fly Predator drones to conduct surveillance over the Middle East and Central Asia. This data is available to Central Intelligence Agency officials who use it to fire Hellfire missiles on targets. The CIA officials have bought software that allows them to match phone signals and voice prints instantly and pinpoint the specific identity and location of individuals. Intelligence Integration Systems, Inc., based in Massachusetts – sells a “location-based analytics” software called Geospatial Toolkit for this purpose. Another Massachusetts company named Netezza, which bought a copy of the software, allegedly reverse engineered the code and sold a hacked version to the Central Intelligence Agency for use in remotely piloted drone aircraft.
IISI, which says that the software could be wrong by a distance of up to 40 feet, sued Netezza to prevent the use of this software. Company founder Rich Zimmerman stated in court that his “reaction was one of stun, amazement that they (CIA) want to kill people with my software that doesn’t work.”
Across the world, mass surveillance contractors are helping intelligence agencies spy on individuals and ‘communities of interest’ on an industrial scale. The Wikileaks Spy Files reveal the details of which companies are making billions selling sophisticated tracking tools to government buyers, flouting export rules, and turning a blind eye to dictatorial regimes that abuse human rights.
How to use the Spy Files
To search inside those files, click one of the link on the left pane of this page, to get the list of documents by type, company date or tag. To search all these companies on a world map use the following tool from Owni
Over-reacting? I don’t think so. While I believe that President Bush and American government was truly caught by surprise on 9/11, I also think they took advantage of the terrorist attack on this country to step up surveillance against American citizens. It is like letting the cat out of the burlap bag. Good luck getting it put back in. Just six weeks after the September 11 attacks, a panicked Congress passed the “USA/Patriot Act,” an overnight revision of the nation’s surveillance laws that vastly expanded the government’s authority to spy on its own citizens, while simultaneously reducing checks and balances on those powers like judicial oversight, public accountability, and the ability to challenge government searches in court.
Removing judicial oversight and public accountability allows the government free reign. Most of the changes to surveillance law made by the Patriot Act were part of a longstanding law enforcement wish list that had been previously rejected by Congress, in some cases repeatedly. Congress reversed course because it was bullied into it by the Bush Administration in the frightening weeks after the September 11 attack.
The Senate version of the Patriot Act, which closely resembled the legislation requested by Attorney General John Ashcroft, was sent straight to the floor with no discussion, debate, or hearings. Many Senators complained that they had little chance to read it, much less analyze it, before having to vote. In the House, hearings were held, and a carefully constructed compromise bill emerged from the Judiciary Committee. But then, with no debate or consultation with rank-and-file members, the House leadership threw out the compromise bill and replaced it with legislation that mirrored the Senate version. Neither discussion nor amendments were permitted, and once again members barely had time to read the thick bill before they were forced to cast an up-or-down vote on it. The Bush Administration implied that members who voted against it would be blamed for any further attacks – a powerful threat at a time when the nation was expecting a second attack to come any moment and when reports of new anthrax letters were appearing daily.
Congress and the Administration acted without any careful or systematic effort to determine whether weaknesses in our surveillance laws had contributed to the attacks, or whether the changes they were making would help prevent further attacks. Indeed, many of the act’s provisions have nothing at all to do with terrorism.
The Patriot Act increases the government’s surveillance powers in four areas
The Patriot Act increases the government’s surveillance powers in four areas:
- Records searches. It expands the government’s ability to look at records on an individual’s activity being held by third parties. (Section 215)
- Secret searches. It expands the government’s ability to search private property without notice to the owner. (Section 213)
- Intelligence searches. It expands a narrow exception to the Fourth Amendment that had been created for the collection of foreign intelligence information (Section 218).
- “Trap and trace” searches. It expands another Fourth Amendment exception for spying that collects “addressing” information about the origin and destination of communications, as opposed to the content (Section 214).
1. Expanded access to personal records held by third parties
One of the most significant provisions of the Patriot Act makes it far easier for the authorities to gain access to records of citizens’ activities being held by a third party. At a time when computerization is leading to the creation of more and more such records, Section 215 of the Patriot Act allows the FBI to force anyone at all – including doctors, libraries, bookstores, universities, and Internet service providers – to turn over records on their clients or customers.
The result is unchecked government power to rifle through individuals’ financial records, medical histories, Internet usage, bookstore purchases, library usage, travel patterns, or any other activity that leaves a record. Making matters worse:
- The government no longer has to show evidence that the subjects of search orders are an “agent of a foreign power,” a requirement that previously protected Americans against abuse of this authority.
- The FBI does not even have to show a reasonable suspicion that the records are related to criminal activity, much less the requirement for “probable cause” that is listed in the Fourth Amendment to the Constitution. All the government needs to do is make the broad assertion that the request is related to an ongoing terrorism or foreign intelligence investigation.
- Judicial oversight of these new powers is essentially non-existent. The government must only certify to a judge – with no need for evidence or proof – that such a search meets the statute’s broad criteria, and the judge does not even have the authority to reject the application.
- Surveillance orders can be based in part on a person’s First Amendment activities, such as the books they read, the Web sites they visit, or a letter to the editor they have written.
- A person or organization forced to turn over records is prohibited from disclosing the search to anyone. As a result of this gag order, the subjects of surveillance never even find out that their personal records have been examined by the government. That undercuts an important check and balance on this power: the ability of individuals to challenge illegitimate searches.
- Violates the Fourth Amendment, which says the government cannot conduct a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime.
- Violates the First Amendment’s guarantee of free speech by prohibiting the recipients of search orders from telling others about those orders, even where there is no real need for secrecy.
- Violates the First Amendment by effectively authorizing the FBI to launch investigations of American citizens in part for exercising their freedom of speech.
- Violates the Fourth Amendmentby failing to provide notice – even after the fact – to persons whose privacy has been compromised. Notice is also a key element of due process, which is guaranteed by the Fifth Amendment.
2. More secret searches
For centuries, common law has required that the government can’t go into your property without telling you, and must therefore give you notice before it executes a search. That “knock and announce” principle has long been recognized as a part of the Fourth Amendment to the Constitution.
The Patriot Act, however, unconstitutionally amends the Federal Rules of Criminal Procedure to allow the government to conduct searches without notifying the subjects, at least until long after the search has been executed. This means that the government can enter a house, apartment or office with a search warrant when the occupants are away, search through their property, take photographs, and in some cases even seize property – and not tell them until later.
Notice is a crucial check on the government’s power because it forces the authorities to operate in the open, and allows the subject of searches to protect their Fourth Amendment rights. For example, it allows them to point out irregularities in a warrant, such as the fact that the police are at the wrong address, or that the scope of the warrant is being exceeded (for example, by rifling through dresser drawers in a search for a stolen car). Search warrants often contain limits on what may be searched, but when the searching officers have complete and unsupervised discretion over a search, a property owner cannot defend his or her rights.
Finally, this new “sneak and peek” power can be applied as part of normal criminal investigations; it has nothing to do with fighting terrorism or collecting foreign intelligence.
3. Expansion of the intelligence exception in wiretap law
Under the Patriot Act, the FBI can secretly conduct a physical search or wiretap on American citizens to obtain evidence of crime without proving probable cause, as the Fourth Amendment explicitly requires.
A 1978 law called the Foreign Intelligence Surveillance Act (FISA) created an exception to the Fourth Amendment’s requirement for probable cause when the purpose of a wiretap or search was to gather foreign intelligence. The rationale was that since the search was not conducted for the purpose of gathering evidence to put someone on trial, the standards could be loosened. In a stark demonstration of why it can be dangerous to create exceptions to fundamental rights, however, the Patriot Act expanded this once-narrow exception to cover wiretaps and searches that DO collect evidence for regular domestic criminal cases. FISA previously allowed searches only if the primary purpose was to gather foreign intelligence. But the Patriot Act changes the law to allow searches when “a significant purpose” is intelligence. That lets the government circumvent the Constitution’s probable cause requirement even when its main goal is ordinary law enforcement.
The eagerness of many in law enforcement to dispense with the requirements of the Fourth Amendment was revealed in August 2002 by the secret court that oversees domestic intelligence spying (the “FISA Court”). Making public one of its opinions for the first time in history, the court revealed that it had rejected an attempt by the Bush Administration to allow criminal prosecutors to use intelligence warrants to evade the Fourth Amendment entirely. The court also noted that agents applying for warrants had regularly filed false and misleading information. That opinion is now on appeal.
4. Expansion of the “pen register” exception in wiretap law
Another exception to the normal requirement for probable cause in wiretap law is also expanded by the Patriot Act. Years ago, when the law governing telephone wiretaps was written, a distinction was created between two types of surveillance. The first allows surveillance of the content or meaning of a communication, and the second only allows monitoring of the transactional or addressing information attached to a communication. It is like the difference between reading the address printed on the outside of a letter, and reading the letter inside, or listening to a phone conversation and merely recording the phone numbers dialed and received.
Wiretaps limited to transactional or addressing information are known as “Pen register/trap and trace” searches (for the devices that were used on telephones to collect telephone numbers). The requirements for getting a PR/TT warrant are essentially non-existent: the FBI need not show probable cause or even reasonable suspicion of criminal activity. It must only certify to a judge – without having to prove it – that such a warrant would be “relevant” to an ongoing criminal investigation. And the judge does not even have the authority to reject the application.
“Nationwide” pen register warrants
Under the Patriot Act PR/TT orders issued by a judge are no longer valid only in that judge’s jurisdiction, but can be made valid anywhere in the United States. This “nationwide service” further marginalizes the role of the judiciary, because a judge cannot meaningfully monitor the extent to which his or her order is being used. In addition, this provision authorizes the equivalent of a blank warrant: the court issues the order, and the law enforcement agent fills in the places to be searched. That is a direct violation of the Fourth Amendment’s explicit requirement that warrants be written “particularly describing the place to be searched.”
Pen register searches applied to the Internet
The Patriot Act applies the distinction between transactional and content-oriented wiretaps to the Internet. The problem is that it takes the weak standards for access to transactional data and applies them to communications that are far more than addresses. On an e-mail message, for example, law enforcement has interpreted the “header” of a message to be transactional information accessible with a PR/TT warrant. But in addition to routing information, e-mail headers include the subject line, which is part of the substance of a communication – on a letter, for example, it would clearly be inside the envelope.
The government also argues that the transactional data for Web surfing is a list of the URLs or Web site addresses that a person visits. For example, it might record the fact that they visited “www.aclu.org” at 1:15 in the afternoon, and then skipped over to “www.fbi.gov” at 1:30. This claim that URLs are just addressing data breaks down in two different ways:
- Web addresses are rich and revealing content. The URLs or “addresses” of the Web pages we read are not really addresses, they are the titles of documents that we download from the Internet. When we “visit” a Web page what we are really doing is downloading that page from the Internet onto our computer, where it is displayed. Therefore, the list of URLs that we visit during a Web session is really a list of the documents we have downloaded – no different from a list of electronic books we might have purchased online. That is much richer information than a simple list of the people we have communicated with; it is intimate information that reveals who we are and what we are thinking about – much more like the content of a phone call than the number dialed. After all, it is often said that reading is a “conversation” with the author.
- Web addresses contain communications sent by a surfer. URLs themselves often have content embedded within them. A search on the Google search engine, for example, creates a page with a custom-generated URL that contains material that is clearly private content, such as: http://www.google.com/search?hl=en&lr=&ie=UTF-8&oe=UTF-8&q=sexual+orient…
Similarly, if I fill out an online form – to purchase goods or register my preferences, for example – those products and preferences will often be identified in the resulting URL. Is this really the society we want? Is this how we want to live? How close are we to the day when challenging our government becomes a “state security” matter and illegal? In some ways…we are well on the way.