Monday, January 31, 2011

The Silent Renewal of The Patriot Act

It wasn't long ago that the American public, and certainly the majority of congressional Democrats would have been rightly outraged by Patriot Act provisions – currently in the process of being renewed AGAIN – that allow for broad warrants to be issued by a secretive court for any type of record, without the government having to declare that the information sought is connected to a terrorism investigation; or that allow a secret court to issue warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist; and of course, that allow the government to search your home as long as it doesn't tell you it did.

But that was then, this is now. Granted, during the Bush years there was at least some resistance in Congress to the Act, and at least some attention was given to the numerous, and continuous government abuses of the law. As the years have passed however, and a Democrat now sits in the White House, no significant efforts are being undertaken any longer, particularly with the last elections defeat of privacy champion Russ Feingold, to curb some of the Acts more egregious provisions.

If  you can stomach it, here's a recent defense of the Patriot Act and torture from the war criminal himself, George W. Bush:

Sadly, we are on the brink of yet another renewal of the act, with the active support of what was once an ardent critic of it - President Obama. The last time it was renewed (two years ago), Senators Feingold and Durbin put up an admirable fight on a variety of fronts - to no avail. And this time, as with the last time, all expect the renewal of provisions allowing broad warrants to be issued by a secretive court for any type of record, from financial to medical, without the government having to declare that the information sought is connected to a terrorism or espionage investigation; the continuation of so-called “roving wiretaps”, allowing the FBI to obtain wiretaps from the secret court, known as the FISA court, without identifying the target or what method of communication is to be tapped.

Finally, also expected to be renewed is the so-called “lone wolf” measure that allows FISA court warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist.

Yes, Senator Patrick Leahy is offering SOME resistance, with a few small modifications, but nothing close to what is needed. Leahy's changes are aimed at heightening oversight include language requiring the government to list the facts and circumstances that justify obtaining a court order to retrieve records. Current law states the records are presumed relevant, so long as they are associated with a foreign power, the activities of a suspected agent of a foreign power, or an individual in contact with such an agent.

In addition, the Senate proposal raises the standard for gaining permission to conduct wiretaps. Existing law mandates that the government certify the information sought is foreign intelligence data or relevant to a terrorist investigation. The new measure would demand the government provide facts that substantiate the belief that the information gleaned will likely be relevant - including greater restrictions to the so-called library provision.

But, few believe these changes will be adopted. As reported on the Talking Points Memo (TPM), the ACLU isn't all that impressed by the new restrictions - even if they were to become law. Rachel Slajda of TPM writes:

Leahy's bill would raise the bar. The feds would do more to show a court that they need the records. The people who get the orders for records -- called "National Security Letters" -- could challenge the gag order immediately, instead of waiting a year.

The ACLU's lead lobbyist on the Patriot Act says that's a step in the right direction. But it's not enough. What the ACLU wants, and has wanted for years, is for the FISA provision to be limited only to suspected terrorists, instead of anyone whose records the FBI thinks could be useful to a terrorism investigation. "215 should be limited to collecting information on suspected terrorists and spies," Michelle Richardson tells TPM. "That being said, the bill contains some important oversight provisions that should certainly be written into law."
For more on the Patriot Act debate, here's some good stuff from an article by John Whitehead on Recorder, entitled "Renewing the Patriot Act While America Sleeps":
The Patriot Act drove a stake through the heart of the Bill of Rights, violating at least six of the ten original amendments–the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments–and possibly the Thirteenth and Fourteenth Amendments, as well. The Patriot Act also redefined terrorism so broadly that many non-terrorist political activities such as protest marches, demonstrations and civil disobedience were considered potential terrorist acts, thereby rendering anyone desiring to engage in protected First Amendment expressive activities as suspects of the surveillance state.
The Patriot Act justified broader domestic surveillance, the logic being that if government agents knew more about each American, they could distinguish the terrorists from law-abiding citizens–no doubt an earnest impulse shared by small-town police and federal agents alike. According to Washington Post reporter Robert O’Harrow, Jr., this was a fantasy that had “been brewing in the law enforcement world for a long time.” And 9/11 provided the government with the perfect excuse for conducting far-reaching surveillance and collecting mountains of information on even the most law-abiding citizen.
Suddenly, for the first time in American history, federal agents and police officers were authorized to conduct black bag “sneak-and-peak” searches of homes and offices and confiscate your personal property without first notifying you of their intent or their presence. The law also granted the FBI the right to come to your place of employment, demand your personal records and question your supervisors and fellow employees, all without notifying you; allowed the government access to your medical records, school records and practically every personal record about you; and allowed the government to secretly demand to see records of books or magazines you’ve checked out in any public library and Internet sites you’ve visited (at least 545 libraries received such demands in the first year following passage of the Patriot Act).
In the name of fighting terrorism, government officials were permitted to monitor religious and political institutions with no suspicion of criminal wrongdoing; prosecute librarians or keepers of any other records if they told anyone that the government had subpoenaed information related to a terror investigation; monitor conversations between attorneys and clients; search and seize Americans’ papers and effects without showing probable cause; and jail Americans indefinitely without a trial, among other things. The federal government also made liberal use of its new powers, especially through the use (and abuse) of the nefarious national security letters, which allow the FBI to demand personal customer records from Internet Service Providers, financial institutions and credit companies at the mere say-so of the government agent in charge of a local FBI office and without prior court approval.
This means that FBI agents can collect and retain vast amounts of information, much of it about the innocent activities of law-abiding Americans. And it can then retain that information indefinitely and share it with other government agencies.” Berman continues: In the absence of meaningful limitations on the FBI’s authority, agents or informants may attend religious services or political gatherings to ascertain what is being preached and who is attending. They may focus their attention on particular religious or ethnic communities. They may gather and store in their databases information about where individuals pray, what they read, and who they associate with. All with no reason to suspect criminal activity or a threat to national security. And then they may keep that information in their databases, regardless of whether it indicated any wrongdoing.

We also know that without sufficient limits and oversight, well-meaning efforts to keep the homeland safe–efforts which rely heavily on the collection and analysis of significant amounts of information about Americans–can adversely impact civil liberties. Indeed, history teaches that insufficiently checked domestic investigative powers frequently have been abused and that the burdens of this abuse most often fall upon disfavored communities and those with unpopular political views. Investigations triggered by race, ethnicity, religious belief, or political ideology may seem calibrated to address the threat we face, but instead they routinely target innocent people and groups. Beyond the harm done to individuals, such investigations invade privacy, chill religious belief, radicalize communities and, ultimately, build resistance to cooperation with law enforcement.
In fact, since 9/11, we’ve been spied on by surveillance cameras, eavesdropped on by government agents, had our belongings searched, our phones tapped, our mail opened, our email monitored, our opinions questioned, our purchases scrutinized (under the USA Patriot Act, banks are required to analyze your transactions for any patterns that raise suspicion and to see if you are connected to any objectionable people), and our activities watched. We’ve also been subjected to invasive patdowns and whole-body scans of our persons and seizures of our electronic devices in the nation’s airports (there were 6,600 such seizures in airports alone between October 2008 and July 2010). We can’t even purchase certain cold medicines at the pharmacy anymore without it being reported to the government and our names being placed on a watch list. And it’s only going to get worse.

Most Americans have been lulled into thinking that the pressing issues are voting in the next election or repealing health care. This is largely due to the media hoopla over the Tea Party, the recent elections and the health care law, and the continuous noise from television news’ talking heads. But the real issue is simply this–the freedoms in the Bill of Rights are being eviscerated, and if they are not restored and soon, freedom as we have known it in America will be lost. Thus, Congress should not renew the USA Patriot Act, nor should President Obama sign it into law. If he does so, he might just be putting the final nail in our coffin.
So lets take a step back and start connecting some dots. An undeniable pattern has emerged over the past few years that fundamentally challenges the entire premise of a "war on terror" and exposes just how ineffectual and counterproductive these policies have actually been. The reoccurring theme goes like this: Powerful interests - inside and outside of government - sell fear as way to justify the steady assault on our civil liberties, increased spending on military defense, and the growth of the surveillance state.

But here's another important piece of the puzzle that keeps popping up: more often than not the government HASN'T USED these expanded powers to actually fight terrorism (instead often to thwart anti-war protesters, bust small time drug dealers, monitor journalists, and who knows what else?) - as was promised. This begs a larger question, "Who has been targeted and why?"

As the Washington Post reported, the Justice Department concluded that on one hand, the "FBI improperly investigated some left-leaning U.S. advocacy groups after the Sept. 11, 2001, attacks...citing cases in which agents put activists on terrorist watch lists even though they were planning nonviolent civil disobedience."

We know that the FBI used the Patriot Act under the Bush Administration to target liberal groups, particularly anti-war ones during the years between 2001 and 2006 in particular. According to a recent report by the ACLU, there have been 111 incidents of illegal domestic political surveillance since 9/11 in 33 states and the District of Columbia.

The report shows that law enforcement and federal officials work closely to monitor the political activity of individuals deemed suspicious, an activity that was previously common during the Cold War. That includes protests, religious activities and other rights protected by the first amendment.

The spying could take the form of listening to phone calls, intercepting wireless communications, harassing photographers or infiltrating protest groups. Also discovered was the way in which agencies' are increasingly connected through various information sharing measures, making it more likely that information collected on an individual by a small police department could end up in an FBI or CIA database.

The report also noted how the FBI monitors peaceful protest groups and in some cases attempts to prevent protest activities. Its not hard to make the obvious connection between the increase in domestic political surveillance to an erosion of the standards of privacy and civil liberties in the wake of 9/11. The Patriot Act of course serves as exhibit A, as it authorized law enforcement to use tools domestically that were formerly restricted to hostile groups in foreign nations.

In fact, just yesterday, the Federal Bureau of Investigation reported nearly 800 violations of privacy laws and regulations to the President's Intelligence Oversight Board from 2001 to 2008, according to records obtained by the Electronic Frontier Foundation (EFF).

EFF said it has also uncovered "indications that the FBI may have committed upwards of 40,000 possible intelligence violations in the 9 years since 9/11." It said it could find no records of whether anyone was disciplined for the infractions.

The group drew its findings from about 2,500 documents it obtained under the Freedom of Information Act.

All of this of course is part of a much larger trend that paints a disturbing narrative, a narrative that points in one direction only: an increasingly intrusive surveillance state with an Executive Branch getting dangerously close to being above the law.

As Glenn Greenwald questioned last year, does such a massive surveillance apparatus actually make us safer? Greenwald says no, stating “The problem is never that the U.S. Government lacks sufficient power to engage in surveillance, interceptions, intelligence-gathering and the like. Long before 9/11 -- from the Cold War -- we have vested extraordinarily broad surveillance powers in the U.S. Government to the point that we have turned ourselves into a National Security and Surveillance State. Terrorist attacks do not happen because there are too many restrictions on the government's ability to eavesdrop and intercept communications, or because there are too many safeguards and checks. If anything, the opposite is true: the excesses of the Surveillance State -- and the steady abolition of oversights and limits -- have made detection of plots far less likely. Despite that, we have an insatiable appetite -- especially when we're frightened anew -- to vest more and more unrestricted spying and other powers in our Government, which -- like all governments -- is more than happy to accept it.”

Another question worth pondering: Can we really "defeat" terrorism by embracing a less free and more fearful society (two primary goals of terrorists)? Similarly, don't many of these government abuses constitute a form of terrorism in and of itself?

The silence surrounding the "debate" over the Patriot Act's renewal is disturbing to say the least. As quoted in Whitehead's article, an unnamed privacy advocate explained this silence well:
Many of my colleagues have just given up on the Patriot Act, either expressly or implicitly (in terms of the mindshare, energy, and resources dedicated to the issue). They don’t seem to understand or recall just how foundational this supposedly ‘emergency’ law was in setting the stage for the infringements that came later.
Sheer exhaustion plays a role, but the fact that it’s been nearly a decade means that generational change is even starting to have an impact, as have all the other irons in the fire — so many other traumatizing events have come up to distract and rightfully demand attention (torture, even broader surveillance, illegal war, assassinations), and a corrosive new so-called realism (cynicism, actually) about the politics of terrorism and the complicity of our fear-driven media and political class, combined of course with a reluctance to undermine our first black president and whatever incremental progressive achievements he can make.
We must now grapple with how to address this silence...

Wednesday, January 26, 2011

California Bill to Protect Against Privacy Breaches, Improve Notification is Back

One of last year's real “privacy disappointments” in California was Governor Schwarzenegger's veto of SB 1166 (Simitian) - a data breach notification law. It represented a particularly stinging rebuke because - while the Governor vetoed a nearly identical bill the year before - he had intimated that if it was brought back with just a minor modification - which was made, he'd sign it next time. Apparently, the Governor changed his mind, and consumers will continue to pay the price. 

Now to the good news: Senator Joe Simitian is bringing the legislation back, and of course, California has a new Governor with a far better track record on consumer rights.

First, here's why the bill is important:

A recent study by the Privacy Rights Clearinghouse indicated upwards of 500 million data breaches took place since 2005 (certainly more once we take into account last years numbers), including personal medical records, credit card numbers and Social Security numbers. According to a 2009 Javelin Research&Strategy, individuals are four times more likely to be the victim of identity theft in the year after receiving a data breach notification letter.

It goes without saying then, that these findings epitomizes the need for proper notification policies and more stringent enforcement. California’s current security breach notification law does not require public agencies, businesses, or persons subject to that law to provide any standard set of information about the breach to consumers. As a result, security breach notification letters often lack important information - such as the time of the breach or type of information that was breached - or are confusing to consumers.

Last year's SB 1166 is now SB 24. The bill would help rectify these shortcomings by amending California's security breach notification law so it states that any public agency, person or business required to issue a security breach notification to more than 500 residents must also submit the notification electronically to the Attorney General. The bill would also require that the notification be written in plain language and include contact information regarding the breach, the types of information breached, and the date, estimated date, or date range of the breach.

Just ask consumers whether its more helpful to receive a letter that provides more than just a notice that your information has been breached, but also what you can do about it, when it happened (so you can check that date against your credit card statements, etc.), and other useful, SPECIFIC information.

The bottom line is that this law IS NEEDED. The past few years have demonstrated that there are some holes that still need to be plugged. According to a survey of data breach victims, 28% of those receiving a notification did not understand “the potential consequences of the breach after reading the letter.”

The changes proposed to the current law by Senator Simitian’s legislation will enhance identity theft protection for Californians. As the Senator himself noted, “The unwelcome news that personal information has been stolen should be accompanied by information that enables individuals to decide what steps to take next. Current notifications of data breaches vary widely in the information they provide and in their helpfulness to individuals who are affected. This new measure makes modest but helpful changes for consumers. By requiring notice to the Attorney General, it will enable law enforcement to identify patterns of data theft and to understand the scope of the threat.”

So to repeat, specifically, the bill would establish the following standards for notifications:

• A general description of the incident.
• The type of information breached.
• The date and time of the breach. 
• A toll-free telephone number of major credit reporting agencies for security breach notices in California.

In the years since Simitian’s original privacy legislation, Assembly Bill 700, was signed into law, 46 other states, as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands, have enacted laws that are modeled on the California statute. At least 14 other states and Puerto Rico now require security breach notification letters to include specified types of information similar to the requirements of SB 24. Most of these states also require notification of a state regulator, such as the Attorney General, as well as individuals.

In other words, this is a truly common sense, no-brainer piece of legislation that a large coalition of consumer and privacy rights organizations will be working hard to enact this year. 

Wednesday, January 19, 2011

President Obama "Vindicating" Bush/Cheney Lawlessness

As I've written in excruciating detail about on this blog, the Obama Administration has been a complete disappointment on issues related to privacy and civil liberties. To be sure, I never expected his actions as President to fully match his words as a candidate - this is rarely EVER the case, particularly when it comes to issues related to national security - but the two seem to have diverged to such a degree that they now represent diametrically opposed worldviews.

Recently however, it’s gotten even worse. Before I get to my usual listing of all the flip flops and sell outs, let’s go to exhibit A, the overwhelming approval his “war on terror” is getting from some of the most notorious criminals from the Bush Administration:

Vice President Dick Cheney, perhaps the Constitution and privacy’s worst enemy since the FBI's Hoover or the Senate's Joe McCarthy, recently said Obama has "learned from experience" that Bush administration terror policies were necessary and correct, stating, "I think he's learned that what we did was far more appropriate than he ever gave us credit for while he was a candidate.”

Last October, former Bush NSA and CIA Chief Michael Hayden, whose confirmation as CIA Chief was opposed by then-Sen. Obama on the ground he had overseen the illegal NSA spying program said "there's been a powerful continuity between the 43rd and the 44th president." 

James Jay Carafano, a homeland-security expert at the Heritage Foundation, told The New York Times' Peter Baker last January: "I don’t think it's even fair to call it Bush Lite.  It's Bush.  It's really, really hard to find a difference that's meaningful and not atmospheric."

I can’t really dispute any of these statements, and nor even is the kinds of rabid right wingers that still view the Patriot Act as a great achievement, rather than the historic tragedy that it is, and will continue to, represent.

As I wrote in a past post on this topic, “Sadly, what has become an ironclad, and increasingly dangerous "rule of thumb" in this country, is that once a power is taken by the government (i.e. Patriot Act), or a civil liberty/constitutional protection erased, its gone...NO President, anymore anyway, once elected offers to "give" up power seized by the President (s) before him. And boy oh boy has this remained true between the privacy eviscerating Administration of George W. Bush and that of President Barack Obama.”

The list of evidence of this Bush-Obama continuity is approaching miles in length now. To save time and space, I will try and just focus on privacy specific policies, rather than the more all encompassing list of civil liberties violations (i.e. torture, indefinite detention, drone attacks, etc.) the President has also continued unabated. 

And don’t just take Cheney or my word for it (I shudder at the prospect of agreeing with that man about anything), the Electronic Privacy Information Center (EPIC) recently released its own Privacy Report Card for President Obama, giving the Administration a grade of C in Consumer Privacy, B in Medical Privacy, D in Civil Liberties, and B in Cybersecurity. I suspect due to some recent stands taken, both the consumer and cybersecurity grades will be lower next time around.

Before I get to Glenn Greenwald’s expert, disturbing, and spot on arguments for why Obama is serving to both codify Bush/Cheney policies as “mainstream” as well as vindicate their lawlessness, let me run down a bit more of the President’s privacy related disappointments and even betrayals.

We all know by now the Administration's whole-hearted embrace of airport body scanners. As we also now know, both Obama and Holder have completely reversed themselves on the issue of warrantless wiretapping, by not only refusing to prosecute or investigate the program and/or those that carried it out, but have even expanded their defense of it in some important key respects. 

Telecom immunity? You bet. Justice for those spied on? Hell no.

We also now KNOW that it was President Obama himself that worked behind the scenes to ensure that absolutely no meaningful reforms to the Patriot Act were adopted...essentially a complete reversal of his positions as a Senator and Presidential candidate. 

Remember, Senator Obama branded the Patriot Act "shoddy and dangerous" and pledged to end it in 2003. In 2005, he pledged to filibuster a Bush-sponsored bill that included several of these exact components recently extended, calling them "just plain wrong" in a Senate speech. 

Here are some of the Patriot Act greatest hits that have now been vigorously renewed, and supported, by this Administration:

Business and citizens groups can still have their records examined by the government with minimal checks on how the information can be used and more particularly used against. Individuals often based on flimsiest of evidence can still be targeted for monitoring and surveillance if suspected of being a potential terrorist.

Organizations and individuals can still be slapped with so-called roving wiretaps (taps that can be placed on an individual or group anywhere, anytime) again based on weak evidence or unfounded suspicion....

FISA can order court warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist was also approved.

Then there was the Administration's radical interpretation and use of the "state secrets" privilege

Obama is also now backing a bill that would require all Internet companies to be able to tap into any online communications that they enable.

The Department Of Justice has been pressuring Congress to expand its power to obtain records of Americans' private Internet activity through the use of National Security Letters (NSLs).

Taken together it’s hard to come to any other conclusion except that with each administration the surveillance state expands, and the Executive Branch gains more power, if not over legislation, than assuredly over national security related polices, particularly those that endanger privacy.

This continuity extends beyond specific policies into the underlying sloganeering mentality in which they're based:  we're in a Global War; the whole Earth is the Battlefield; the Terrorists want to kill us because they're intrinsically Evil (not in reaction to anything we do); we're justified in doing anything and everything to eradicate Them, the President's overarching obligation (contrary to his Constitutional oath) is to keep us Safe; this should all be kept secret from us; we can't be bothered with obsolete dogma like Due Process and Warrants, etc. etc. Aside from the repressiveness of the policies themselves, there are three highly significant and enduring harms from Obama's behavior.

First, it creates the impression that Republicans were right all along in the Bush-era War on Terror debates and Democratic critics were wrong.  The same theme is constantly sounded by conservatives who point out Obama's continuation of these policies:  that he criticized those policies as a candidate out of ignorance and partisan advantage, but once he became President, he realized they were right as a result of accessing the relevant classified information and needing to keep the country safe from the Terrorist threat.  Goldsmith, for instance, claimed Obama changed his mind about these matters "after absorbing the classified intelligence and considering the various options."  Susan Collins told the NYT's Baker that Obama "is finding that many of those policies were better-thought-out than they realized."  Cheney boasted that Obama "obviously has been through the fires of becoming President and having to make decisions and live with the consequences."  This has settled in as orthodoxy:  one could criticize Bush/Cheney Terrorism policies only out of ignorance and/or being free of the obligation to Keep America Safe.

Second, Obama has single-handedly eliminated virtually all mainstream debate over these War on Terror policies.  At least during the Bush years, we had one party which steadfastly supported them but one party which claimed (albeit not very persuasively) to vehemently oppose them.  At least there was a pretense of vigorous debate over their legality, morality, efficacy, and compatibility with our national values. Those debates are no more.  Even the hardest-core right-wing polemicists -- Gen. Hayden, the Heritage Foundation, Dick Cheney -- now praise Obama's actions in these areas.  Opposition from national Democrats has faded away to almost complete nonexistence now that it's a Democratic President doing these things.  What was once viewed as the signature of Bush/Cheney radicalism is now official, bipartisan Washington consensus: the policies equally of both parties and all Serious people.  Thanks to Barack Obama, this architecture is firmly embedded in place and invulnerable to meaningful political challenge.

Third, Obama's embrace of these policies has completely rehabilitated the reputations and standing of the Bush officials responsible for them.  Yesterday, J. Gerald Herbert -- a long-time DOJ official -- told The Raw Story that Obama's refusal to investigate or prosecute Bush era crimes is both a violation of DOJ's duties and sets a "dangerous precedent" by vesting lawbreaking elites with immunity.  The active protection of torturers and other high-level lawbreakers both signals that they did nothing seriously wrong and, independently, ensures that such conduct will be repeated it in the future.  But Obama's impact in this area extends far beyond that.

Dick Cheney is not only free of ignominy, but can run around claiming vindication from Obama's actions because he's right.  The American Right constantly said during the Bush years that any President who knew what Bush knew and was faced with the duty of keeping the country safe would do the same thing. Obama has provided the best possible evidence imaginable to prove those claims true. Conservatives would love to bash Obama for being weak on Terrorism so that, in the event of another attack, they can blame him (and Cheney, in last night's interview, left open that possibility by suggesting Obama may suffer from unknown failures). But they cannot with a straight face claim that Obama has abandoned their core approach, so they do the only thing they can do: acknowledge that he has continued and strengthened it and point out that it proves they were right -- and he was wrong -- all along. If Obama has indeed changed his mind over the last two years as a result of all the Secret Scary Things he's seen as President, then I genuinely believe that he and the Democratic Party owes a heartfelt, public apology to Bush, Cheney and the GOP for all the harsh insults they spewed about them for years based on policies that they are now themselves aggressively continuing. 
Fear always seems to make for a more persuasive argument these days, no matter how ludicrous or exaggerated. In contrast, arguments in defense of privacy in the face of that fear are becoming increasingly ineffective. As I also concluded in a past post, and worth repeating today: "I find it particularly dismaying that the tables have been so turned that the onus (and derision) has been placed on those that simply believe the government, or corporate America for that matter, should not have access to everything we do, particularly when we have committed no crime.

Now we must prove that whatever the latest power the government seeks to enshrine as law won't stop an attack (and if we can't prove this negative, we are endangering Americans!) or how it could specifically harm us...rather than the onus being on those seeking to circumvent our privacy and rights in the name of "national security."

If we can all go back in time for a minute, and remember those dark days of the Bush Administration (i.e. all of them), we should also remember the consistent, vehement, and vocal opposition from the left of Bush assaults on privacy and the constitution, from eavesdropping, to indefinite detention, to state secrets, to the Patriot Act abuses, and so, and so forth.

This vehement opposition was of course warranted, and important. But now that Obama is President, and CONTINUING THESE POLICIES, the same outcry that once existed has become a whimper. No, I'm not talking about groups like the ACLU or EFF, but certainly Democrats in Congress, left wing talk radio, and even newspaper editorial boards.

And why is this silence so damaging? Because a so called "liberal" President, a constitutional scholar no less, has now codified what just a few years ago were rightly considered radical attacks on the Constitution and Rule of Law. Now those very same policies have not only been embraced by the new President, but has been accepted by the Democrats in Congress!! In other words, the ball has just moved WAY towards the neoconservative worldview, and their interpretation of an all powerful Executive Branch.

The idea that because Obama is more intelligent, measured, and schooled in constitutional law than Bush (all of which is true), that this somehow means we should entrust him with such powers, be it wiretapping, assassination of American citizens, or indefinite detention, is patently absurd. Even if it were true that he would use these powers wisely (which is impossible), what's to say the next President will too?"

Or, as Greenwald concludes, "Obama has won the War on Terror debate -- for the American Right.  And as Dick Cheney's interview last night demonstrates, they're every bit as appreciative as they should be."

Wednesday, January 12, 2011

Is Lockheed Martin Your Big Brother?

I've referred a few times in the past here to a kind of Fear-Industrial-Complex that is growing in strength and size in America. I see it as a kind of extension of Eisenhower's "military industrial complex", made all the more powerful since the 9/11 attack. This "complex" could include everything from the Department of Defense to the corporate media (certainly Fox News) to right wing talk radio to a burgeoning security technologies industry to Congress and the White House to our “the intelligence community” to weapons/defense contractors. There are probably some other examples that might fit that aren't coming to mind at this moment.

We do know that some key components of this "complex" have been RAPIDLY growing size and scope - a kind of secret government that lurks in the shadows, answers to no one, and has a nearly endless supply of funding. I'm speaking now of not just our post 9/11 intelligence agencies apparatus, but also weapons and defense contractors that have been particularly buoyed by advancements in security technologies and things like the Patriot Act.

We can debate the purposes this growing surveillance state serves, from stifling dissent to monitoring "enemies" (both foreign and domestic) to increasing government and corporate power and control to ostensibly "protecting America"...while making enormous sums of money in the process.

I can think of NO BETTER example of a corporate entity, almost a quasi corporate-government entity that sits at the nexus of this fear industrial complex than Lockheed Martin. I'll admit, I'm especially confident of this assertion based on some recent articles I've read, one I want to share with you today, by William D. Hartung (director of the Arms and Security Initiative at the New America Foundation and the author of Prophets of War: Lockheed Martin and the Making of the Military-Industrial Complex) about this almost ubiquitous, and incredibly powerful, defense contractor.

Before I get to sharing some significant clips from Hartung's article entitled "Is Lockheed Martin Shadowing You?" consider just a couple key facts about this mega "company": 
  • it receives more government contracts than any other country in history
  • it now does work for more than two dozen government agencies from the Department of Defense and the Department of Energy to the Department of Agriculture and the Environmental Protection Agency;
  • it's involved in surveillance and information processing for the CIA, the FBI, the Internal Revenue Service (IRS), the National Security Agency (NSA), the Pentagon, the Census Bureau, and the Postal Service
  • it helped train the now infamous Transportation Security Administration agents who pat you down at airports; 
  • every taxpaying household in America contributes, on average, $260 to this one company; 
  • it was to be a key player in the "Total Information Awareness" (TIA) program;
  • it ranks number one on the "contractor misconduct" list; 
  • it won contracts in 44 states and several foreign countries for tasks ranging from collecting parking fines and tolls to tracking down "deadbeat dads" and running "welfare to work" job-training programs; 
  • it helped one city install security cameras and motion sensors;
  • it receives one of every 14 dollars doled out by the Pentagon; 
  • and it spent $12 million on congressional lobbying and campaign contributions in 2009 alone.
In other words...big brother (of a sort anyway) is watching, listening, recording, bombing, torturing, etc.

By then, however, it had developed a taste for non-weapons work, especially when it came to data collection and processing. So it turned to the federal government where it promptly racked up deals with the IRS, the Census Bureau, and the U.S. Postal Service, among other agencies. 

As a result, Lockheed Martin is now involved in nearly every interaction you have with the government. Paying your taxes? Lockheed Martin is all over it. The company is even creating a system that provides comprehensive data on every contact taxpayers have with the IRS from phone calls to face-to-face meetings.
Want to stand up and be counted by the U.S. Census? Lockheed Martin will take care of it. The company runs three centers -- in Baltimore, Phoenix, and Jeffersonville, Indiana -- that processed up to 18 tractor-trailers full of mail per day at the height of the 2010 Census count. For $500 million it is developing the Decennial Response Information Service (DRIS), which will collect and analyze information gathered from any source, from phone calls or the Internet to personal visits. According to Preston Waite, associate director of the Census, the DRIS will be a "big catch net, catching all the data that comes in no matter where it comes from."

Need to get a package across the country? Lockheed Martin cameras will scan bar codes and recognize addresses, so your package can be sorted "without human intervention," as the company's web site puts it.
Plan on committing a crime? Think twice. Lockheed Martin is in charge of the FBI's Integrated Automatic Fingerprint Identification System (IAFIS), a database of 55 million sets of fingerprints. The company also produces biometric identification devices that will know who you are by scanning your iris, recognizing your face, or coming up with novel ways of collecting your fingerprints or DNA. As the company likes to say, it's in the business of making everyone's lives (and so personal data) an "open book," which is, of course, of great benefit to us all. "Thanks to biometric technology," the company proclaims, "people don't have to worry about forgetting a password or bringing multiple forms of identification. Things just got a little easier."

If it seems a little creepy to you that scanning your packages, ensuring that it's easier than ever to collect your DNA, and counting you for the census, rest assured: Lockheed Martin's interest in getting inside your private life via intelligence collection and surveillance has remained remarkably undiminished in the twenty-first century.
Tim Shorrock, author of the seminal book Spies for Hire, has described Lockheed Martin as "the largest defense contractor and private intelligence force in the world." As far back as 2002, the company plunged into the "Total Information Awareness" (TIA) program that was former National Security Advisor Admiral John Poindexter's pet project. A giant database to collect telephone numbers, credit cards, and reams of other personal data from U.S. citizens in the name of fighting terrorism, the program was de-funded by Congress the following year, but concerns remain that the National Security Agency is now running a similar secret program.

In the meantime, since at least 2004, Lockheed Martin has been involved in the Pentagon's Counterintelligence Field Activity (CIFA), which collected personal data on American citizens for storage in a database known as "Threat and Local Observation Notice" (and far more dramatically by the acronym TALON). While Congress shut down the domestic spying aspect of the program in 2007 (assuming, that is, that the Pentagon followed orders), CIFA itself continues to operate. In 2005, Washington Post military and intelligence expert William Arkin revealed that, while the database was theoretically being used to track anyone suspected of terrorism, drug trafficking, or espionage, "some military gumshoe or overzealous commander just has to decide someone is a 'threat to the military'" for it to be brought into play. Among the "threatening" citizens actually tracked by CIFA were members of antiwar groups. As part of its role in CIFA, Lockheed Martin was not only monitoring intelligence, but also "estimating future threats." (Not exactly inconvenient for a giant weapons outfit that might see antiwar activism as a threat!)

Lockheed Martin is also intimately bound up in the workings of the National Security Agency, America's largest spy outfit. In addition to producing spy satellites for the NSA, the company is in charge of "Project Groundbreaker," a $5 billion, 10-year effort to upgrade the agency's internal telephone and computer networks.

While Lockheed Martin may well be watching you at home -- it's my personal nominee for twenty-first-century "Big Brother" -- it has also been involved in questionable activities abroad that go well beyond supplying weapons to regions in conflict. There were, of course, those interrogators it recruited for America's offshore prison system from Guantanamo Bay to Afghanistan (and the charges of abuses that so naturally went with them), but the real scandal the company has been embroiled in involves overseeing an assassination program in Pakistan. Initially, it was billed as an information gathering operation using private companies to generate data the CIA and other U.S. intelligence agencies allegedly could not get on their own. Instead, the companies turned out to be supplying targeting information used by U.S. Army Special Forces troops to locate and kill suspected Taliban leaders.
 Click here to read more.

This is important for a whole lot of reasons of course. It's hard not to be at least a little disturbed by ANY entity becoming this large, this powerful, and this involved in so many things - particularly of the private nature that Lockheed is...

The term Big Brother might be a bit hackneyed, and is thrown around quite a lot, but its not such a large jump to make that analogy in this case. As technology continues to advance, so to does our ability to monitor and record nearly everything we do - usually under the guise of "keeping us safe". And, with the 4th Amendment under such a withering assault, it appears Lockheed Martin is sitting pretty, both in terms of supplying the hardware, but also the manpower.

It was just a couple months ago that the Washington Post broke a story on the ENORMOUS size of our nation's "security state", writing "Every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications." As Glenn Greenwald of noted last year in light of these revelations, "To call that an out-of-control, privacy-destroying Surveillance State is to understate the case. Equally understated is the observation that we have become a militarized nation living under an omnipotent, self-perpetuating, bankrupting National Security State." 

Greenwald also wrote (and Lockheed Martin seems to represent a kind of poster child for a lot of these concerns...which I share):
"the more secret surveillance powers we vest in the Government, the more we allow the unchecked Surveillance State to grow, the more unsafe we become. That's because the public-private axis that is the Surveillance State already collects so much information about us, our activities and our communications -- so indiscriminately and on such a vast scale -- that it cannot possibly detect any actual national security threats. NSA whistle blower Adrienne Kinne, when exposing NSA eavesdropping abuses, warned of what ABC News described as "the waste of time spent listening to innocent Americans, instead of looking for the terrorist needle in the haystack."
That's really the only relevant question: how much longer will Americans sit by passively and watch as a tiny elite become more bloated, more powerful, greedier, more corrupt and more unaccountable -- as the little economic security, privacy and freedom most citizens possess vanish further still? How long can this be sustained, where more and more money is poured into Endless War, a military that almost spends more than the rest of the world combined, where close to 50% of all U.S. tax revenue goes to military and intelligence spending, where the rich-poor gap grows seemingly without end, and the very people who virtually destroyed the world economy wallow in greater rewards than ever, all while the public infrastructure (both figuratively and literally) crumbles and the ruling class is openly collaborating on a bipartisan, public-private basis even to cut Social Security benefits?

The answer, unfortunately, is probably this: a lot longer. And one primary reason is that our media-shaped political discourse is so alternatively distracted and distorted that even shining light on all of this matters little.


Meanwhile, the Real U.S. Government -- the network of secret public and private organizations which comprise the National Security and Surveillance State -- expands and surveills and pilfers and destroys without much attention and with virtually no real oversight or accountability. It sucks up the vast bulk of national resources and re-directs the rest to those who own and control it. To their immense credit, Dana Priest and William Arkin will spend the week disclosing the details of what they learned over the past two years investigating all of this, but the core concepts have long been glaringly evident. But Sarah Palin's Twitter malapropism from yesterday will almost certainly receive far more attention than anything exposed by the Priest/Arkin investigation. So we'll continue to fixate on the trappings and theater of government while The Real Government churns blissfully in the dark -- bombing and detaining and abducting and spying and even assassinating -- without much bother from anyone.
I don't think I need to comment today on this much more...there's a lot here to digest. Suffice it to say...we've got to start seriously questioning the direction we're headed when it comes to issues related to national security, privacy, civil liberties, and others.

Tuesday, January 11, 2011

4th Amendment Takes Another Hit - Phone Records/Texts

I've argued quite often here in favor of a strong 4th Amendment (what a radical!), particularly in light of the continuous assault on it - especially since 9/11 and the Patriot Act.

I'll run down some of the ways this critical protection against unreasonable search and seizure has been so weakened in recent years once I delve into the latest assault a bit.

I speak of last week's ruling handed down by California's top court involving a 2007 arrest of someone who had purchased drugs from a police informant. Investigators later looked through the individuals phone and found text messages that implicated him in a drug deal. The suspect appealed the conviction, saying the evidence was gathered in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures.

The justices disagreed: "The cell phone was an item (of personal property) on the person at the time of his arrest and during the administrative processing at the police station. Because the cell phone was immediately associated with defendant’s person, (police were) entitled to inspect its contents without a warrant."

But court went further - comparing the cell phone to personal effects like clothing. Worse, it argued that it wasn't because the police had a particular right in this particular case, or there was some special exception that allowed such a search, but rather, it argues that no exception was even necessary. In other words, this case was not an exception, but rather the NEW rule: cell phone records are now of little difference than the shirt on your back if you've been arrested. This is a deeply disturbing precedent if it holds.

MSNBC's Red Tape Chronicles reports:

The next time you're in California, you might not want to bring your cell phone with you. The California Supreme Court ruled Monday that police can search the cell phone of a person who's been arrested -- including text messages -- without obtaining a warrant, and use that data as evidence.

The ruling opens up disturbing possibilities, such as broad, warrantless searches of e-mails, documents and contacts on smart phones, tablet computers, and perhaps even laptop computers, according to legal expert Mark Rasch.


Rasch, former head of the Justice Department's computer crime unit, pulled no punches in his reaction to the ruling. "This ruling isn't just wrong, it's dangerous," said Rasch, now director of cybersecurity and privacy at computer security firm CSC in Virginia. "It's remarkable, because it simply misunderstands the nature of these devices."

The door is open for police to search the entire contents of iPhones or other smart phones that people routinely carry, he said. "In fact, I would be shocked if police weren't getting instructions right now to do just that," he said.

By applying the "personal property on the defendant's person" standard, Rasch said, the ruling could logically extend to tablets or even laptop computers, he said. It also flies in the face of established law, which prohibits the warrantless search of briefcases by police, other than a quick search for weapons, Rasch said.


Rasch said the analogies don't hold, however, as modern phones that can store years' worth of personal information are a far cry from drugs hidden in a cigarette case or clothes pockets. "There is a process for looking at data inside devices,” he said. “It's called a warrant."

The California ruling was not unanimous. Dissenting Justice Kathryn Werdegar raised similar concerns in her opinion. "The majority’s holding ... (grants) police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person...The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."

Jonathan Turley, a Constitutional law expert at George Washington University, took to his blog to raise his concerns about the ruling. "The Court has left the Fourth Amendment in tatters and this ruling is the natural extension of that trend," he wrote. "While the Framers wanted to require warrants for searches and seizures, the Court now allows the vast majority of searches and seizures to occur without warrants. As a result, the California Supreme Court would allow police to open cell phone files — the modern equivalent of letter and personal messages.”

Click here for more.

This decision will of course be appealed to the U.S. Supreme Court. But keep in mind, as I understand it, nearly 1/3 of all federal judges were appointed by George W. Bush...meaning we probably have something close to a Federalist Society majority running the courts. And what does that mean? Well, let's just say such judges and courts adhere to two key principles: corporations are always right, and law enforcement is always right.

In the meantime for Californians however, this decision means warrantless searches of cell phones is essentially state law now. One suggestion coming from the author of the article is use password-protection on your smart phones as a possible way to ward off a warrantless searches. While it's not clear that an arrested suspect could be compelled to divulge his or her password to police, at least legal arguments have not yet been made giving them that right.

Other Attacks on the 4th Amendment

As I have said, with the passage (and renewal) of Patriot Act, and the technological advancement in things like RFID tags and GPS tracking capabilities, the 4th Amendment is itself an endangered species. Just recently the Obama Administration has argued that prohibition against unreasonable searches and seizures does not apply to cell-site information mobile phone carriers retain on their customers.

The government has been arguing, consistently now, that federal law requires judges to approve their applications for location information from cell phone companies - even if the police don't have probable cause to obtain this sensitive information. Courts have the right under statute - and the duty under the Constitution - to demand that the government obtain a search warrant before seizing this private location data.

Mobile phone providers store data about where customers make and receive calls, based on the cell towers the customers' phones used. And that's why the government has been attempting to collect past mobile-phone tracking information. That way they can go back in the past for as long as the cell phone companies keep records.

The ACLU had recently provided documents showing that of the states randomly sampled, New Jersey and Florida used GPS tracking without obtaining probable cause or warrants. Four other states, California, Louisiana, Indiana, Nevada and the District of Columbia reported having obtained GPS data only after showing probable cause.

Those documents were part of the ongoing lawsuit by the ACLU and Electronic Frontier Foundation, in which they argued government tracking without a probable cause or warrant is a violation of the Constitution's Fourth Amendment.

The essential argument by privacy advocates, be it the tracking of a cell phone user, or placing a tracking device in a suspect's vehicle, is that, whether you're driving a car or carrying a cell phone you should not be more susceptible to government surveillance. The idea being, no one wants to feel as if a government agent is following you wherever you go - be it a friend's house, a place of worship, or a therapist's office - and certainly innocent Americans shouldn't have to feel that way.

This argument won the day, at least in this case, as a federal appeals court ruled last year the police can’t covertly track a suspect’s car using a GPS device for an extended period of time without getting a warrant. The ruling in the D.C. Court of Appeals overturned the conviction of a suspected cocaine dealer, saying that the use of a secret GPS tracking device on the man’s vehicle for two months violated the Fourth Amendment’s protection against unreasonable searches and seizures.

But while that case, in the meantime anyway, represented a victory, let's remember too that the FBI was found to have illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply by persuading phone companies to provide records.

E-mails obtained by The Washington Post have detailed how counter terrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.

The Patriot Act versus the 4th Amendment

And also last year we saw Congress renew some of the most egregious components of the Constitution eviscerating Patriot Act including:

1. Allowing broad warrants to be issued by a secretive court for any type of record, from financial to medical, without the government having to declare that the information sought is connected to a terrorism or espionage investigation.

2. Renewing the so-called “roving wiretap” provision, allowing the FBI to obtain wiretaps from the secret court, known as the FISA court, without identifying the target or what method of communication is to be tapped.

3. Renewing the so-called “lone wolf” measure that allows FISA court warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist.

4. And of course, the government can still essentially break into your house as long as it doesn't tell you it did...may the 4th Amendment rest in peace.

Border Laptop Seizures

But wait, I'm not finished. The war on the 4th Amendment also includes these border zones in which the government is essentially allowed to stop and question people anywhere without suspicion within 100 miles of the border. This little known power of the federal government to set up immigration checkpoints far from the nation's border lines came about after 9/11, when Congress gave the Department of Homeland Security the right to use some of its powers deeper within the country.

According to the ACLU in October of 2008, the Department of Homeland Security had set up at least 33 internal checkpoints where they stop people, question them and ask them to prove citizenship. At that time I noted that if we allow these kinds of constitutional violations along our border, how long will it take before we start allowing them in the heartland? And I tend to be of the opinion that anytime we weaken the rights of ANYONE, we weaken them for EVERYONE.

And that brings us to the the supposed right of these border agents, for any reason they deem appropriate, to look into or even seize your laptop computer and all that it contains within. So, for ANY reason, YOUR laptop and everything you have stored on it, can be taken from you by the government...the same government responsible for Abu Graihb, Rendition, Guantanamo, warrantless wiretapping, military tribunals, the Patriot Act, and the evisceration of Habeus Corpus.

In response to the work of the ACLU, the government came back with a slightly less intrusive policy, requiring the CBP to complete a search of an electronic device within five days and ICE to complete a search within 30 days.

In addition, agents must take additional steps to inform and educate travelers about the searches, and the DHS Office for Civil Rights and Civil Liberties will conduct an assessment of the policy's impact on civil rights within 120 days.

The practice of suspicion-less laptop searches violates fundamental rights of freedom of speech and protection against unreasonable seizures and searches, and are especially invasive because devices like laptops contain personal data, which people should be able to keep private.

As I wrote on this blog in the past, "Can't we all agree that the 4th Amendment has taken enough of a beating over the past 8 years??? Can we not also agree that warrantless government searches of our homes is a grotesque subversion of the Constitution (I would also argue our privacy)?"

And now, a California court has ruled that smart phones are no different than a cigarette carton in a suspect's jacket? I would simply ask how can any free society benefit from, or reconcile, such policies as illegal search and seizures (including of laptops), warrantless wiretapping, the tracking of GPS devices in peoples cell phones, the utilization of "whole-body-imaging" (digital strip search) scanners in airports, the evisceration of Habeus Corpus, Rendition, Military Tribunals, and the Patriot Act? (and the list goes on and on).

My point in bringing all these up is so we stop viewing each, individual case as existing in some vacuum. What we must begin to see, clearly, is the pattern, and the direction we are headed.

Friday, January 7, 2011

Airport Body Scanner Update: DHS Answers EPIC, Nader/Paul, and Alternatives

I'm going to quickly rehash some of the reasons why these airport body scanners are wrongheaded before I get to the latest information coming out of the lawsuit filed by The Electronic Privacy Information Center (EPIC) against them. For a more comprehensive detailing, you can always check out my article published in the California Progress Report about seven weeks ago entitled "A Hobson's Holiday Travel Choice: Digital Strip Search or Get Groped."

Ensuring Compliance: The Opt-Out “Choice”

For those that feel uncomfortable being viewed nude by Transportation Security Administration (TSA) agents, we’ve been told we can always opt-out. But this “choice” only leads to yet another violation of privacy: a policy of more aggressive “pat downs”. The message being sent is a clear one: DON'T OPT OUT.

This dual privacy intrusion has sparked an intensifying public backlash, including: An airline pilot refused to be subjected to these scanners and subsequently sued the airline for not allowing him to work, the world’s largest pilot’s association boycotted the machines over health risks posed by the low level radiation they emit, a man video taped his experience being thrown out of an airport after refusing to submit to a "groin" check pat down (and now he’s being threatened with a $10,000 fine and a civil suit for leaving the airport), a national opt-out day took place on November 24th, and a lawsuit (six actually) against the Department of Homeland Security was filed by EPIC (to name just a few).

Airport Body Scanners: Key Points of Concern

Opposition to these scanners and the accompanying aggressive pat downs has centered on the following key concerns:

Being forced to be either viewed naked or aggressively searched just to travel is a gross violation of privacy. Despite TSA claims to the contrary, documents obtained from the Department of Homeland Security by The Electronic Privacy Information Center (EPIC) show the machines being used at some U.S. airports CAN record and store passenger images. If these photos weren't being stored, why do so many keep popping up on the internet?

• These scanners don’t make us safer. For every specific tactic we target with a new, expensive, and often burdensome security apparatus, the terrorist's tactics themselves will change. Risks can be reduced for a given target, but not eliminated. Additionally, a host of security experts assert the money spent on these scanners could be used for infinitely more effective security measures. It should also be noted that these scanners can’t detect explosives inserted into the body, in something like a reinforced condom that could be passed and then detonated. In fact, most agree that the scanners would NOT have helped catch the UNSUCCESSFUL attack attempt by the “underwear bomber” last year (a claim constantly made by scanner advocates). Also, let's remember the age of this technology itself: 20 years!! One of the key talking points repeated, over and over, by machine proponents is that these somehow represent "cutting edge" technology that is critical in keeping us safe. ha!

The threat of being killed in an airplane by a terrorist is minuscule. Before we willfully give up our civil liberties and sign off on wasting HUGE amounts of money on ineffectual security systems, consider this: your chances of getting hit by lightning in one year is 500,000 to 1 while the odds you'll be killed by a terrorist on a plane (if you are a constant flyer over a 10 year period) is 10 million to 1.

The Security Technologies Industry is big business now - with powerful "friends" in high places. In fact, the former head of the Department of Homeland Security (DHS) – Michael Chertoff - currently lobbies for a body scanner manufacturer. This multi-billion dollar industry contributes large sums of money to elected officials; and at nearly $200,000 per scanner – its taxpayers who will be left holding the bill.

Scientists and airline pilots have raised concerns regarding the potential health risks associated with the radiation these machines emit. Some have argued that the radiation levels have been dangerously underestimated by the government and could lead to an increased risk of skin cancer.

Where does it end!!? At what point are we going to stop taking out insane plots that don't work on American citizens trying to travel? No shoes, no liquids, not nail cutters, long lines, and the list simply goes and on. At what point does this growing surveillance state begin to stifle freedom and even dissent (think street corner cameras, wiretapping, RFID tags on clothes and kids, behavioral tracking, GPS tracking, etc.) to such a degree that we lose what made America ostensibly "special"?

Security versus Privacy: A False Choice

Choosing between being digitally strip searched, or aggressively felt up simply to get on a plane is no choice at all. As noted privacy and security expert Bruce Schneier recently stated, "If you set up the false dichotomy, of course people will choose security over privacy -- especially if you scare them first. But it's still a false dichotomy. There is no security without privacy. And liberty requires both security and privacy. The famous quote attributed to Benjamin Franklin reads: "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." It's also true that those who would give up privacy for security are likely to end up with neither."

DHS Answers (finally) Charges Filed by EPIC

With that quick summary, let's get to the progress of EPIC's lawsuit against DHS. The article from NetworkWorld entitled "The Stripping of Freedom: EPIC vs. DHS on TSA Body Scanners", lays out the latest:

The Department Of Homeland Security finally filed an its answer brief in EPIC's suit to suspend TSA's controversial airport body scanner program. The Electronic Privacy Information Center (EPIC) argued that body scanners are "unlawful, invasive, and ineffective," but DHS responded that EPIC's claims are "unfounded" and "meritless."

The EPIC opening brief [PDF] outlined several violations and asked the Court to halt all use of DHS naked body scanners. EPIC brought claims under the Fourth Amendment, the Privacy Act, the Video Voyeurism Prevention Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act.


EPIC was fast to file a reply brief. In regards to opting out, EPIC wrote, "Moreover, when travelers select the patdown, they often describe it as 'coercive' or 'retaliatory.' This EPIC [PDF] might be worth your time to read, as EPIC states how DHS "action has violated, and continues to violate, the constitutional and statutory rights of American air travelers."

Also of interest to me personally was the TSA's claim that the holiday travel season produced an "outpouring of public support" for the dual scan, pat down policy. Now, while I have been clear in admitting that the Opt-Out day organized by opponents of these new procedures wasn't some rousing success, to claim that the travel season represented an outpouring of support is patently absurd. Let's remember some key factors in WHY there was little confrontation over the holidays, particularly over Thanksgiving:
  • Only a small percentage of passengers are actually asked to go through the digital strip search machines.
  • The vast majority of airports still aren't equipped with them.
  • When people are traveling on the holidays (or any time for that matter) its very difficult to get them to willingly delay their own trip...or be blamed for delaying others.
  • What the TSA failed to mention is how many passengers actually were asked to go through the scanners, and how many of those opted-out. Yes, they reported the number of opt-outs at airports, but they've been contrasting that with the total number of those that flew.
  • Also not reported is how many passengers flew over the holidays versus the past, and whether any decline might be due to people "opting out" of flying altogether. Six, it turns out the machines weren't labeled as "body scanners," nor were there any images posted by or on them showing what they do.
  • When the TSA reports 99 percent of travelers consented to the body scanners, that consent was neither verbal nor written (in other words, nobody will ask you if it's okay). It was presumed so if you walk into the machine without objecting. So no "opt-out" choices were presented. In other words, to opt out, a traveler would have to realize he was being directed into a body scanner, understand that he had a choice, and stop and speak up to a TSA agent.
  • As reported in Rawstory, many airport imaging scanners were reportedly shut down and roped off on November 24th, the day of a planned "opt out protest.

The Opponents Odd Couple: Ralph Nader and Ron Paul

Now let me get to an interesting pair of increasingly outspoken opponents to the TSA's practices that, literally, span the ideological spectrum. One one side we have Ralph Nader, on the other, Rep. Ron Paul. While my politics are far closer to those of Ralph Nader, on issues related to privacy and foreign policy, Paul has been a commendable and consistent voice.

But let me get to Ralph Nader's recent statements on this subject, ones I find particularly enlightening. He said that "the body scans and enhanced security pat-downs at US airports are eating away at Americans' freedoms…The TSA security strategy was to have a knee-jerk reaction to failed terror attacks." Recently he also stated:

"You have the shoe bomber, we take off our shoes. You have the Christmas bomber headed for Detroit who failed, so now we have these new scanner machines," he said, referring to a young Nigerian who tried unsuccessfully to detonate explosives sewn into his underpants as his US-bound flight was about to land on Christmas Day, 2009. "Next thing American travelers know, they will be subjected to body cavity searches. What's happening is, we are incrementally losing our freedoms."
At the same privacy gathering that Nader was quoted as, international security expert Edward Luttwak reminded attendees that in a test conducted in Europe, German prison guards were instructed to sneak explosives past three different scanners, including the full-body X-ray machine currently causing such a furore in the United States. Luttwak, a senior associate at the Center for International and Strategic Studies, said:

"They did it with such ease that the Air Travel Association, IATA, said there is no case for scanners. The better solution would be to use data that is available to the travel industry to identify and separate frequent fliers and other travelers who are unlikely to be terrorist wannabes from travelers who, for whatever reason, arouse suspicion. Then, only screen suspect travelers. "The guy who has traveled 50 times in the last 50 weeks without blowing up an airplane is unlikely to become a terrorist the 51st time. This sort of screening method is already used successfully at airports around the world, including in high-risk countries like Israel.

If the TSA were to switch to it, they would not only save travelers a lot of time and headaches, but would also reduce the security risk that has been created at US departure terminals by long, slow-moving lines of passengers waiting to clear security."

While I still believe the more important problem with these machines/pat downs is their intrusiveness, and the fact that they are based on an almost non-existent threat, I also realize that the fact they don't work could be our ace in the hole in the long run. For that reason, I will continue to hone in on that fact, and the growing evidence supporting it, in future posts (in addition of course to our growing surveillance state).

Sadly, though one would think that knowing all that we do about these machines and increasingly intrusive surveillance tactics, and the slippery slope they represent, we wouldn’t be talking about expanding it into other modes of transportation. But that's exactly what we're going to it a kind of totalitarianism creep...

There’s this from “John Sammon, TSA assistant administrator, Transportation Sector Network Management”: “It is critical that we continue to expand and exercise our collective ability…Today’s event offers the opportunity to demonstrate in dramatic fashion the force potential and security enhancement value of regional collaboration as TSA joins its professional colleagues throughout the Northeast to … provide a highly visible security presence during rush hour.”

Just as it owns Amtrak, government owns all the trains underground, too. As such, the new head of the Transportation Security Administration, John Pistole, told the USA Today, “Given the list of threats on subways and rails over the last six years going on seven years, we know that some terrorist groups see rail and subways as being more vulnerable because there’s not the type of screening that you find in aviation.... From my perspective, that is an equally important threat area.”

Meanwhile, TSA also has said they’d like to expand this Visible Intermodal Prevention and Response (VIPR) concept beyond the rail sector to other forms of mass transit.

Taking the bus instead of trains won’t protect you from the TSA either, as “Bryce Williams and 689 other passengers” in Orlando discovered on October 22, 2009. They “went through tougher-than-normal security procedures … as part of a random check coordinated by the U.S. Transportation Security Administration,” according to the Orlando Sentinel. “[Fifty] officials from agencies including TSA, Orlando police, the Orange County Sheriff’s Office, and U.S. Customs and Border Protection patted down passengers.” VIPR has also pummeled Greyhound’s terminal in Memphis, as well as the city’s light rail on November 30, 2009; ditto for Charlotte, North Carolina, on May 28, 2008, Tampa, Florida, on February 16, 2010 — the list continues ad nauseam.

The TSA often describes these raids as “augment[ing] normal transportation security operations.”

I suppose if there's one positive aspect of the GOP taking control of the House (out of 10000 horrific things), its Ron Paul's increasing power on issues like this (on a lot of other issues he's terrible of course). Of course, his GOP brethren tend to be ardent PROPONENTS of exactly the kinds of authoritarian policies he abhors. However, because a Democrat is in the White House, a black one at that, I suspect more Republicans than might be expected could turn on this issue for no other reason than to score political points. Paul recently stated the following:

We need look no further than the grossly unconstitutional and immoral policies of the Transportation Security Administration, demanding that we either be irradiated or fondled to travel in our own country, to see that those who would deprive us of our civil liberties on the empty promise of full security will not be given up easily.


We must not allow the out-of-control Department of Homeland Security to impose an East-German like police state in the U.S. where neighbors are encouraged by Big Brother or Big Sister to inform on their neighbors. We must not accept that government authorities should hector us via television screens as we go about our private lives like we are living in Orwell's 1984.

I'm optimistic that the incoming members of Congress understand the importance of what they have been entrusted with by the American people. But I do hope that those who elected them will watch their actions and their votes in Congress carefully. An early indication will be the upcoming vote on re-authorization of the anti-American PATRIOT Act. Defeating once-and-for-all this police state legislation will be a great way to start 2011 and the 112th Congress.

Alternatives to the War on Terror

As I have written numerous times before, and what so many of the Wikileaks cable proves beyond any reasonable doubt, is that if we really want to reduce the threat of terrorism we should stop participating in it in country's like Iraq, Afghanistan, Pakistan and Yemen.

A few alternative tactics to consider: stop bombing and occupying Muslim nations, arming their enemies, torturing and indefinitely jailing their people, and supporting ruthless dictators in their countries. That's not to say ANY TERRORIST act is justified, because none are, be they perpetrated by Americans or any other people.

With the repeal of Don't Ask Don't Tell, we can at least start reinstating all the gay Arabic translators (which we have a critical shortage of today) we expelled from the military due to their sexual preference (in fact all gays that were expelled). And, perhaps, we can start shifting our focus on intelligence gathering rather than warmaking to catch the real extremists that want to do our country harm.

And if all that's not enough, check out this list of airport security methods that WOULD make us safer, don't cost NEARLY as much, and don't include being groped or digitally strip searched.