by Tom Burghardt / July 13th, 2012
When Congress passed the FISA Amendments Act (FAA) in 2008, a
privacy-killing law that gutted First, Fourth and Fifth Amendment
protections for Americans while granting immunity to giant telecoms that
assisted the National Security Agency’s (NSA) warrantless wiretapping
programs, we were assured that the government “does not spy” on our
communications.
Yet scarcely a year after FAA was signed into law by President Bush,
The New York Times
revealed that under Hope and Change™ huckster Barack Obama, NSA
continued the previous regime’s illegal practices, intercepting “private
e-mail messages and phone calls of Americans in recent months on a
scale that went beyond the broad legal limits established by Congress
last year.”
The wholesale vacuuming-up of private communications by the sprawling
Pentagon bureaucracy were described by unnamed “senior officials” as
the “‘overcollection’ of domestic communications of Americans;” in other
words, a mere technical “glitch” in an otherwise “balanced” program.
But what most Americans are blissfully unaware of is the fact that
they carry in their pockets what have been described as near-perfect spy
devices: their cellphones.
Earlier this week,
The New York Times
disclosed that “cellphone carriers reported that they responded to a
startling 1.3 million demands for subscriber information last year from
law enforcement agencies seeking text messages, caller locations and
other information in the course of investigations.”
The report by carriers, made in response to congressional inquiries
“document an explosion in cellphone surveillance in the last five years,
with the companies turning over records thousands of times a day in
response to police emergencies, court orders, law enforcement subpoenas
and other requests.”
“I never expected it to be this massive,” said Rep. Edward J. Markey
(D-MA), the co-chair of the Bipartisan Congressional Privacy Caucus,
“who requested the reports from nine carriers, including AT&T,
Sprint, T-Mobile and Verizon.”
Markey told the
Times that the
prevalence of cellphone surveillance by law enforcement agencies raised
the specter of “digital dragnets” that threaten the privacy of most
customers.
While the sheer volume of requests by local, state and federal police
for user data may have startled Congress, which by-and-large has turned
a blind eye when it comes to privacy depredations at all levels of
government, it is hardly a complete picture of the pervasive nature of
the problem.
In 2009 security watchdog Christopher Soghoian reported on his
Slight Paranoia web site that just one firm, Sprint Nextel, “provided law enforcement agencies with its customers’ (GPS) location information
over 8 million times
between September 2008 and October 2009. This massive disclosure of
sensitive customer information was made possible due to the roll-out by
Sprint of a new, special web portal for law enforcement officers.”
(emphasis added)
According to Soghoian, “Internet service providers and
telecommunications companies play a significant, yet little known role
in law enforcement and intelligence gathering.”
“Government agents routinely obtain customer records from these
firms,” Soghoian averred, “detailing the telephone numbers dialed, text
messages, emails and instant messages sent, web pages browsed, the
queries submitted to search engines, and of course, huge amounts of
geolocation data, detailing exactly where an individual was located at a
particular date and time.”
While there are indeed “exigent circumstances” which may require law
enforcement to demand instant access to GPS data or other customer
records–a kidnapping or child abduction in progress–in the main however,
it appears that most warrant-free requests fall under a more sinister
category: fishing expedition.
Commenting on congressional revelations, ACLU legislative counsel Christopher Calabrese informed us that data supplied to the
Times
represents “a vast undercount of the number of Americans who have been
affected by this tracking. Sprint disclosed that it received
approximately 500,000 subpoenas in 2011 (a subpoena is a written request
for information from law enforcement that isn’t reviewed by a judge)
and that ‘each subpoena typically requested subscriber information on
multiple subscribers.’ In addition, several carriers disclosed that they
sometimes provide all the information from a particular cell tower or
particular area.”
Although several geolocation privacy bills that require warrants to
obtain records are pending in Congress, it should be clear there is no
consensus among ruling class elites for protecting the privacy rights of
Americans or reining-in overly-intrusive police agencies.
In fact, the opposite is the case.
Under Obama, illegal surveillance programs once hidden behind
code-named black projects such as STELLAR WIND and PINWALE have been
greatly expanded. Indeed, the bipartisan consensus which encourages and
permits the secret state to carry out warrantless wiretapping and data
mining have been “regularized” to such a degree (under the rubric of
“keeping us safe”) they’re no longer even regarded as controversial.
More than three years ago, Obama promised to “fix” illegal policies
which surfaced under the previous Bush government. However, an anonymous
“senior official” told the
Times
there were certain “technical problems” that led the agency “to
inadvertently ‘target’ groups of Americans and collect their domestic
communications without proper court authority. Officials are still
trying to determine how many violations may have occurred.”
It was further revealed that some of the groups “inadvertently”
targeted by NSA and other spy satrapies (CIA, DHS, FBI, et. al.)
included Muslim Americans, anarchist and socialist groups, libertarians,
civil liberties organizations, antiwar activists as well as individual
supporters of the secrecy-spilling web site
WikiLeaks.
Just last week the
Bradley Manning Support Network disclosed that “A
letter
dated May 18, 2012, which purports to originate from the US Army
Criminal Investigative Division (CID), rejects a Freedom of Information
Act (FOIA) request submitted for data the government has collected on
the Bradley Manning Support Network. The letter states that ‘an active
investigation is in progress with an undetermined completion date’.”
As readers recall, Manning is the Army private accused by the
government of releasing hundreds of thousands of secret files to
WikiLeaks. He currently faces charges that could lead to decades of
incarceration.
“At this time,” Network supporters wrote, “it is unclear whether the
investigation cited in the FOIA denial simply refers to the government’s
ongoing legal retaliation against Bradley Manning, or whether there is
actually some other separate investigation targeting the Support
Network.”
It’s a sure bet, given the administration’s ongoing war against
whistleblowers, that the Army as well the Justice Department has the
Manning Support Network–along with WikiLeaks–in their gun sights.
And with the construction of NSA’s giant $2 billion Utah Data Center nearing completion, as James Bamford reported in
Wired Magazine
in March, the agency’s ability “to intercept, decipher, analyze, and
store vast swaths of the world’s communications as they zap down from
satellites and zip through the underground and undersea cables of
international, foreign, and domestic networks” will soon take a
qualitative leap forward–at our expense.
With FAA currently up for renewal, and with congressional grifters on
both sides of the aisle pushing for a five-year, amendment-free
extension as demanded by the administration, the secret state is
refusing to provide privacy advocates–both in and outside
government–with any information whatsoever on how just many violations
have occurred on a regular basis under the law’s admittedly loose
guidelines.
In May, senators Ron Wyden (D-OR) and Mark Udall (D-CO), members of
the Senate Select Committee on Intelligence asked NSA to divulge
information about how many Americans communications have been spied upon
by the agency.
The Office of the Director of National Intelligence responded by
saying that it was “not reasonably possible to identify the number of
people located in the United States whose communications may have been
reviewed under the authority of the FAA.”
Both senators oppose FAA’s extension on civil liberties grounds and
in the face of the government’s stonewall, Wyden placed a “hold” on the
legislation.
In a
statement published on his web site Wyden explained why he was blocking unanimous consent requests to pass FAA’s five-year extension.
“The purpose of this 2008 legislation was to give the government new
authorities to collect the communications of people who are believed to
be foreigners outside the United States, while still preserving the
privacy of people inside the United States,” Wyden wrote.
“Before Congress votes to renew these authorities it is important to
understand how they are working in practice. In particular, it is
important for Congress to better understand how many people inside the
United States have had their communications collected or reviewed under
the authorities granted by the FISA Amendments Act.”
“I am concerned, of course, that if no one has even estimated how
many Americans have had their communications collected under the FISA
Amendments Act,” Wyden averred, “it is possible that this number could
be quite large. Since all of the communications collected by the
government under section 702 are collected without individual warrants, I
believe that there should be clear rules prohibiting the government
from searching through these communications in an effort to find the
phone calls or emails of a particular American, unless the government
has obtained a warrant or emergency authorization permitting
surveillance of that American.”
Ludicrously enough, in response to the senator’s requests I. Charles
McCullough, the Inspector General of the Office of the Director of
National Intelligence wrote that the NSA Inspector General “and NSA
leadership agreed that an IG review of the sort suggested
would itself violate the privacy of U.S. persons.” (emphasis added)
McCullough’s irony-rich obfuscation, published by
Wired,
argued that even providing an estimate on how many Americans were spied
upon would be “beyond the capacity” of the NSA’s in-house watchdog. “I
defer to [the NSA inspector general's] conclusion that obtaining such an
estimate was beyond the capacity of his office and dedicating
sufficient additional resources would likely impede the NSA’s mission.”
Just as the Bush administration scotched citizen lawsuits that
demanded accountability from the nation’s telecommunication providers
over their collaboration with NSA’s illegal programs, so too has the
Obama regime sought to derail government accountability by invoking an
alleged “state secrets privilege.”
Recently, the
Electronic Frontier Foundation
reported that “Three whistleblowers–all former employees of the
National Security Agency (NSA)–have come forward to give evidence in …
EFF’s lawsuit against the government’s illegal mass surveillance
program,
Jewel v. NSA.”
In a July 2 motion filed in U.S. District Court in San Francisco,
“the three former intelligence analysts confirm that the NSA has, or is
in the process of obtaining, the capability to seize and store most
electronic communications passing through its U.S. intercept centers,
such as the ‘secret room’ at the AT&T facility in San Francisco
first disclosed by retired AT&T technician Mark Klein in early
2006.”
Those three former NSA officials–William E. Binney, Thomas A. Drake
and J. Kirk Wiebe–were themselves targets of government persecution over
allegations that they provided information to
The New York Times in their 2005 revelation of illegal domestic spying by the Agency.
Drake, who pled guilty last year to a misdemeanor after the Justice
Department’s Espionage Act charges collapsed, was initially prosecuted
by the administration–as a spy no less–for providing evidence to
The Baltimore Sun of massive waste, fraud and corruption in NSA’s Trailblazer program.
The $1.2 billion corporate boondoggle, overseen by the Science
Applications International Corporation (SAIC) and project partners
Boeing, Computer Sciences Corporation and Booz Allen Hamilton was
eventually shut down in 2006.
In the wake of initial reporting by the
Times,
USA Today
disclosed that NSA “has been secretly collecting the phone call records
of tens of millions of Americans, using data provided by AT&T,
Verizon and BellSouth.”
In fact, the same firms who assisted the Agency in creating “‘a
database of every call ever made’ within the nation’s borders,” are busy
as proverbial bees providing geolocational information to law
enforcement and secret state agencies.
As EFF averred, “Jewel v. NSA is back in district court after the 9th
U.S. Circuit Court of Appeals reinstated it in late 2011. In the motion
for partial summary judgment filed today, EFF asked the court to reject
the stale state secrets arguments that the government has been using in
its attempts to sidetrack this important litigation and instead apply
the processes in the Foreign Intelligence Surveillance Act that require
the court to determine whether electronic surveillance was conducted
legally.”
While EFF should be commended for their efforts, prospects for a full
accounting of serious state constitutional violations of Americans’
right face an uphill battle.
As the
World Socialist Web Site
pointed out Monday, “The latest revelations about cell phone
monitoring, when added to the long record of antidemocratic attacks
carried out since the declaration of the ‘war on terror’–from the
establishment of the Guantanamo Bay prison camp to the Obama
administration’s assertion of the right to summarily execute anyone,
including US citizens, anywhere in the world—provide chilling evidence
of the real and growing threat of an American police state.”
Efforts in that direction by the Obama administration are gathering steam.
The Electronic Privacy Information Center (
EPIC)
also reported Monday that “The White House has released a new Executive
Order seeking to ensure the continuity of government communications
during a national emergency.”
That
Executive Order,
issued July 6 by the White House, grants new powers to the Department
of Homeland Security, “including the ability to collect certain public
communications information,” EPIC averred.
But it does far more than that. “Under the Executive Order the White
House has also granted the Department the authority to seize private
facilities when necessary, effectively shutting down or limiting
civilian communications.”
As researcher Peter Dale Scott disclosed in numerous analyses on
so-called “Continuity of Government” planning, COG is code for the
suspension of constitutional guarantees and the imposition of martial
law by the National Security State.
In 2010, Scott pointed out in
Japan Focus:
“Clearly 9/11 met the conditions for the implementation of COG
measures, and we know for certain that COG plans were implemented on
that day in 2001, before the last plane had crashed in Pennsylvania. The
9/11 Report confirms this twice, on pages 38 and 326. It was under the
auspices of COG that Bush stayed out of Washington on that day, and
other government leaders like Paul Wolfowitz were swiftly evacuated to
Site R, inside a hollowed out mountain near Camp David.”
In fact, the first ninety days after 9/11 “saw the swift
implementation of the key features attributed to COG planning … in the
1980s: warrantless detentions, warrantless deportations, and the
warrantless eavesdropping that is their logical counterpart. The
clearest example was the administration’s Project Endgame–a ten-year
plan, initiated in September 2001, to expand detention camps, at a cost
of $400 million in Fiscal Year 2007 alone. This implemented the central
feature of the massive detention exercise, Rex 84, conducted by Louis
Giuffrida and Oliver North in 1984.”
The proposed five-year extension of the FISA Amendments Act, coupled
with indefinite detention provisions of the 2012 National Defense
Authorization Act (NDAA), the president’s “kill list” and now, a new
Executive Order granting DHS the power to “seize” private
communications’ facilities in the wake of a “national emergency” have
accelerated these dictatorial trends.
Tom Burghardt is a researcher and activist based
in the San Francisco Bay Area. His articles are published in many
venues. He is the editor of
Police State America: U.S. Military "Civil Disturbance" Planning, distributed by
AK Press.
Read other articles by Tom, or
visit Tom's website.
Just a day before the nation celebrated the life of the once-federally-spied-upon Dr. Martin Luther King Jr., the New York Times
reported that both the Pentagon and the CIA have been issuing subpoenas
to domestic financial institutions to investigate possible terrorism.
Although the military and the CIA are largely barred from spying on
Americans, the Pentagon has stepped up its surveillance of American
citizens after September 11 as part of what it calls “force protection” —
that is, the protection of military installations on American soil. 