Tuesday, June 28, 2011

America's Burgeoning Surveillance State and New FBI Powers

I want to expand on the op-ed I wrote last week entitled "The Patriot Act and the Quiet Death of the US Bill of Rights" by discussing a piece that ran in the Los Angeles Times by a representative of the CATO institute yesterday. I want to do that for a couple reasons. One, its a very good piece and delves more deeply into the FBI's increasing powers. And two, the fact that its written by someone representing what would be considered "far right" on the ideological spectrum reinforces and highlights one of the theses of my article...which was the opportunity to build a left/right opposition to core Patriot Act provisions.

Without going into my entire article again, suffice it to say, the most disturbing aspect of the recent extension of the Act was the three most controversial provisions failing to be modified or reformed. These include:

•    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;
•    allowing the FBI to obtain wiretaps from the secret court (i.e. “roving wiretaps”,) known as the FISA court, without identifying the target or what method of communication is to be tapped;
•    allowing the FISA court warrants for the electronic monitoring of a person (“lone wolf” measure ) for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist.

Another component of the Patriot Act to keep in mind before I get to the article is what are called National Security Letters (NSLs) – which allow the FBI, without a court order, to obtain telecommunication, financial and credit records deemed “relevant” to a government investigation. The FBI issues about 50,000 a year and an internal watchdog has repeatedly found the flagrant misuse of this power.

And now new guidelines from the Justice Department will allow FBI agents to investigate people and organizations "proactively" without firm evidence for suspecting criminal activity. The new rules will free up agents to infiltrate organizations, search household trash, use surveillance teams, search databases, and conduct lie detector tests, even without suspicion of any wrongdoing.

In other words, in light of ALL the documented abuses of these powers by the FBI for reasons OTHER than fighting terrorism - as advertised - rather than modify and/or reform them, we are doubling down on them, and increasing them.

Julian Sanchez has more:

Less than three years after the last major revision of its domestic surveillance guidelines, the FBI is preparing to loosen its restrictions on monitoring Americans. If this is not halted, we might find our privacy eroded beyond repair.

Agents are already free to search the public Internet and the federal government's vast and growing databases for information on groups or individuals — even if they aren't suspected of wrongdoing — without approval from a supervisor. Under rules implemented in 2008, they can go still further, digging up information in broader commercial databases, or consulting state and local law enforcement records, provided they open an "assessment." That isn't the same as an "investigation," which requires grounds for suspicion of criminal activity, but opening an assessment means that agents must at least create a paper trail and identify a legitimate purpose for their inquiries.

In 2008, we were told these rules would give the FBI the flexibility it needed to "proactively" ferret out national security threats. Now the FBI says these lax limits on its power are still too cumbersome: The next edition of the bureau's operational manual will give agents leeway to search all those databases with no approval or explanation, without opening an assessment and creating a paper trail.


The change in the rules will remove a crucial deterrent for any of the 14,000 FBI employees who might be tempted to use their government access to all kinds of databases for improper personal ends, or to flout rules prohibiting religious, racial and political profiling. This is no hypothetical concern: Shortly after the new guidelines were announced, a former CIA official alleged that the Bush administration had asked the spy agency to dig up dirt on academic and blogger Juan Cole, whose fierce criticism of the war in Iraq earned the ire of the White House.

The new manual will also give agents who have opened assessments
greater authority to employ physical surveillance teams. If the FBI thinks you might make a useful informant, agents will be free to dig through your garbage in hopes of finding embarrassing trash that might encourage you to cooperate. And they will be able to do this without first having to show any evidence that you are engaged in wrongdoing.


In an era in which an unprecedented quantity of information about our daily activities is stored electronically and is retrievable with a mouse click, internal checks on the government's power to comb those digital databases are more important than ever. That's why Sens. Charles E. Grassley (R-Iowa) and Patrick J. Leahy (D-Vt.) have asked the FBI to delay implementation of the new rules until the Senate Judiciary Committee can be briefed on the changes. But they should go further, as their colleague Jon Tester (D-Mont.) has done, and insist that the current rules already give the government more than enough leeway to snoop on innocent Americans.

If we aren't willing to say enough is enough, our privacy will slip away one tweak at a time.

Click here to read more.

The fact that the Patriot Act will continue for another four years with the same kind of lawlessness and abuse as the last ten is bad enough. But the fact we are seeking to give the FBI even more power, knowing how they have abused the powers they've already been given, borders on the insane. Clearly, as this article lays out one of the big privacy fight going on right now, and will continue to be fought: cybersecurity. 

Another big privacy fight coming is over the FISA Amendments Act, which will sunset next year. Also of note, the ACLU's challenge to that law has been reinstated by a Federal Appeals court. Stay tuned...I'll be covering all of the above right here.

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