My Op-Ed: "The Patriot Act and the Quiet Death of the US Bill of Rights"

Just wanted to alert everybody to an op-ed I just had published on the California Progress Report (and looking to have it published elsewhere too). I want to drive traffic to the article, so I'm just going to give you a taste of it here:

The Patriot Act and the Quiet Death of the US Bill of Rights

With the stroke of an autopen from the other side of the Atlantic Ocean, the once articulate critic of the Patriot Act signed a four year extension of the most dangerous assault on American civil liberties in US history without a single additional privacy protection. 

One would think that this reauthorization would have incited vigorous debate in the halls of Congress and at least a fraction of the breathless 24/7 media coverage allotted the Anthony Weiner “sexting” scandal. Instead, three weeks ago the House (250 to 153) and Senate (72 to 23) approved, and the President signed, an extension of this landmark attack on the Bill of Rights with little notice and even less debate.

Most disturbing was the extension – without modification – of the Act’s three most controversial provisions:

•    allows 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;
•    allows 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;
•    allows 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.

Also in need of reform, are what's 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. 

The Long Record of Patriot Act Abuses

Any meaningful debate over whether to reauthorize any and all of these provisions without significant additional privacy protections should include a few key questions. One, have these provisions made us significantly safer (i.e. are there documented incidences they have led to capturing terrorists plotting against us?)? Two, is there any evidence that they have been abused? Three, is their claimed usefulness somehow jeopardized by the kinds of modest reforms privacy rights groups (and others) advocate? And finally, have we created a dangerous constitutional precedent?

Thanks to the relentless work by groups like the American Civil Liberties Union (ACLU) - and information uncovered by the Freedom of Information Act - there is little to no evidence that these provisions, as written, have made us any safer. Yet there’s a long list of incidences of unadulterated government abuse and malpractice for a host of purposes other than fighting terrorism. In other words, the threat this Act, and these particular provisions pose to the basic Constitutional rights of American citizens is not hypothetical, but documented fact.

Continued on the California Progress Report.

Facial Recognition Technology Comes to Facebook - Without Consent

As someone on Facebook, I don't want to sound overly melodramatic...but man is this creepy. Once again, Mark Zuckerberg, despite what you may think about the social network he ostensibly created, has proven himself to be an enemy of privacy if there ever was one.

I speak of the recent revelations that Facebook began utilizing facial recognition technologies without consumer consent.  And now, thanks to the Electronic Privacy Information Center, the first complaint to the Federal Trade Commission has been filed.

In addition to EPIC, there's also the reliable privacy stalwart in the House, Rep. Ed Markey, also calling on the FTC to look into this latest, in a long line, of privacy violations by the social networking site.

Not surprisingly, the European Union has launched an investigation into the feature, and Ireland and the UK's data protection officials are also in the midst of an inquiry. 

AS reported by PC World, "EPIC's central argument seems to be that Facebook may have run afoul of consumer protection laws with how it rolled out the feature. The site gave little warning to users that it was going live, and only admitted the procedure was a mistake after the fact."

"When it comes to users' privacy, Facebook's policy should be: 'Ask for permission, don't assume it,'" Rep. Markey said in a statement. "Rather than facial recognition, there should be a Facebook recognition that changing privacy settings without permission is wrong."

Indeed, EPIC highlighted in its complaint Facebook's seemingly careless attitude when it comes to changing user's privacy settings. EPIC cited the company's Beacon service, as well as the company's controversial policy of having a right to your data, even after you delete your account.
"Users could not reasonably have known that Facebook would use their photos to build a biometric database in order to implement a facial recognition technology under the control of Facebook," the complaint reads in part.
In addition to calling for the FTC to force Facebook to stop using facial recognition, EPIC is also asking the agency to require the company to develop a "comprehensive privacy plan," and forbid the site from reintroducing such a feature until its opt-out system is improved and "appropriate security safeguards" are established.

In other words, FB  is suggesting to your friends to tag you without asking you if its okay first. Like most Facebook features, the default setting for facial recognition is "on" - and users must "opt out"...instead of the always more preferable opt-in.

PC World has more: 

...if I upload six photos of my friend Kaitlin, Facebook may "recognize" her face (thanks to other tagged photos of her on the website) and "suggest" that I tag her in those six photos. This makes the tagging process a little easier for me--after all, aren't I more likely to tag Kaitlin if all I have to do is click a button that says "yes, tag away"? Another "benefit" is that I can tag all of these photos of Kaitlin at once--as Facebook said in a blog post, isn't it a whole lot better to be able to tag all of those photos of Kaitlin at once, instead of having to tag each one individually?

Sure, I guess it's easier. Easier for Facebook to invade my privacy, that is.

Ok, I know I sound a little melodramatic. But let's take a look at some facts here:

- Facebook has 600 million members....Each day, Facebook's members upload over 200 million photos, and Facebook currently hosts over 90 billion photos.

- Each time you "tag" a photo on Facebook, its facial recognition technology learns more about what that person looks like.

- Even if you happen to "opt out" of the facial recognition tagging, Facebook's technology can surely use the tagged photos of you (hey, perhaps even the tagged photos of you that you end up un-tagging) to figure out what you look like.

- Right now Facebook is using this technology to help people tag photos. But once they have an accurate facial recognition database of several hundred million people? Hmm. 

...

Opting out of the service doesn't mean Facebook will stop trying to recognize your face--it just means that Facebook will stop suggesting that other people tag you. Even Google has noted the utter creepiness of facial recognition technology (though I suspect they're just waiting for Facebook to get burned).

Facial recognition technology will ultimately culminate in the ability to search for people using just a picture. And that will be the end of privacy as we know it--imagine, a world in which someone can simply take a photo of you on the street, in a crowd, or with a telephoto lens, and discover everything about you on the internet.

Obviously, we can't stop the world of technology from moving toward the development of accurate facial recognition software. But so far, no facial recognition software has really been a threat to our privacy, because nobody has that huge database of people and photos required. Oh wait, except Facebook totally does. 

This all goes back to a familiar topic of discussion on this blog, and that's data ownership. Clearly, Facebook believes your data is its data, to do with as it pleases. As I have written here before, I have a different perspective. Some questions to ponder then becomes, What kind of control should we have over our own data?

The argument by some, such as Mark Zuckerberg, is that all information should be public, and as time goes on we'll only be sharing more of it. In addition, we all will benefit from this communal sharing of private information in ways yet to even be discovered. Already, from this sharing, we forge more online friendships and connections, old friends are reconnected, distant parents see pictures of their kids' day-to-day activities, jobs might be more easily found due to our profiles being more public, internet services improve as companies like Facebook and Google learn about peoples' Web browsing histories, sites are able to tailor content to the user, and so on, and so forth.

What concerns me is what are the side effects of living in a society without privacy? Not just on the net, or about our personal habits, but from the watchful eye of government, be it the knowledge that we could be wiretapped, that smart grid monitors are daily in home habits, that our emails can be intercepted, that our naked bodies must be viewed at airports, that our book purchases can be accessed (particularly if Google gets its way and everything goes electronic), that street corner cameras are watching our every move, that RFID tags allow for the tracking of clothes, cars, and phones...and the list goes on.

For more information on the general concept of biometrics and facial recognition as related to a National ID card, check out my post from May of 2010.

CA Legislation To Provide Data Breach Transparency Needed

One of the privacy bills we were very active on the past few years that was vetoed twice by Governor Schwarzenegger is back, with a much better chance of being signed due to a more privacy conscious Jerry Brown as Governor and increasing amounts of evidence its needed. The reason why I'm going back to this legislation, and the larger issue of data breaches today is that the excellent consumer reporter from the Los Angeles Times - David Lazarus - penned a great article last Friday on why this bill is so needed.

For readers of this blog - this bill info may sound familiar, but let me review some of what I have written about it in the past, and then I'll provide some key passages to the article by Lazarus, because new data has come to light recently that greatly adds to the argument that data breaches are becoming increasingly common, and damaging.

SB 24 (Simitian) - Protecting Personal Information - was vetoed in the form of SB 1166 last year. This was a particularly stinging loss because, while the Governor vetoed a nearly identical bill the year before (that's right...third times a charm!), he said to bring it back again with just a minor modification - which was made. Apparently, the Governor changed his mind.

Here's why this bill is important: A recent study by the Privacy Rights Clearinghouse indicated upwards of 530 million data breaches since 2005, including personal medical records, credit card numbers and Social Security numbers - with consumer accounts have been compromised in 2,520 known data breaches. 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 SB 24 (Simitian). 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.

The bill will rectify this problem by amending California's security breach notification law stating that any public agency, person or business required to issue a security breach notification to more than 500 residents must submit the notification electronically to the Attorney General. This measure also would have required 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.

With that, here's some of what David Lazarus added to this case today:

Sam Greyson was surprised to receive a new credit card the other day from Bank of America. He was also surprised to learn that the bank had changed his account number because of a security breach involving another business. But the thing that surprised Greyson most was that when he called BofA to find out more about the breach, he was essentially told to pound sand.

"They wouldn't tell us anything," he said. "They said we could read about it in the newspaper." That would change if legislation now making its way through Sacramento becomes law. The bill from state Sen. Joe Simitian (D-Palo Alto) would tighten California's existing breach-notification rules to require more detailed disclosure of privacy violations.

          ....

The latest breach came to light Thursday when Citigroup said the names, account numbers and email addresses of as many as 200,000 bank customers were accessed by hackers who broke into Citi's online account site. The Citi breach was discovered by the company in early May. Citi has declined to say why it took weeks to notify customers of the incident.

.....

Greyson, 56, said he was told the same by a BofA service rep. But when he managed to get a supervisor on the line, he said the bank acknowledged that "at least 100,000" accounts had been affected. Betty Riess, a BofA spokeswoman, declined to confirm this when I called seeking more info. She said only that "if we think a customer's account may be compromised, we will take steps to protect customers."

That's not good enough. As Greyson told me, he'd like to know which company was robbed or hacked so he can take his business elsewhere in the future.

Simitian's bill wouldn't give us that much sunlight. But it would require that customers be informed about the nature of the breach and what kind of information was compromised, as well as when the breach occurred and how many other people might have been affected.

.....

As I've said before, the keepers of our personal data have a great responsibility. If they're unable to keep the data safe, we have a right to know — and these businesses should bear the full weight of public accountability. Then we should go the next step and ensure that hacked companies share consumers' pain. I'm thinking their identities should have to be publicly revealed and they should pay a fine of, say, $500 for every customer account involved.

Maybe that would result in better security practices.

You can read more here.

SB 24 recently passed the Senate by an overwhelming vote of 31 to 6. Of course, last year, nearly identical legislation also won by similar margins in both houses of the legislature only to receive a puzzling veto message from then Governor Schwarzenegger that, "This bill is unnecessary, however, because there is no evidence that there is a problem with the information provided to consumers. Moreover, there is no additional consumer benefit gained by requiring the Attorney General to become a repository of breach notices when this measure does not require the Attorney General to do anything with the notices.”

As I wrote at the time, it's strange that the Governor saw fit to speak FOR consumers. Here's an idea, ask yourself 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.”

For updates on how this legislation is progressing in the California Legislature, you can check out the page I've created on the Consumer Federation of California website.

Why Security Keeps Steam Rolling Privacy Concerns

I wanted to alert readers to an excellent article in Salon.com by a Daniel Solove regarding why the security argument keeps winning out over the privacy one - to the detriment to our freedom and civil liberties.

Certainly, last weeks extension of the Patriot Act - with next to no debate or critically needed reforms to protect privacy - is a stark example of this security versus privacy clash. Remember, 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 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, that resistance has largely evaporated, particularly with the last elections defeat of privacy champion Russ Feingold.

Again, as I have written in response to past Patriot Act extensions: 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 a 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?"Another question worth pondering: Can we really "defeat" terrorism by embracing a less free and more fearful society (two primary goals of terrorists)?


With that, let's get to some key passages (he lays out 5 reasons we're losing this fight) of Solove's article entitled "Why "security" keeps winning out privacy". Here's some key passages:

Far too often, debates about privacy and security begin with privacy proponents pointing to invasive government surveillance, such as GPS tracking, the National Security Agency surveillance program, data mining, and public video camera systems. Security proponents then chime in with a cadre of arguments about how these security measures are essential to law enforcement and national security. When the balancing is done, the security side often wins, and security measures go forward with little to no privacy protections.

But the victory for security is one often achieved unfairly. The debate is being skewed by several flawed pro-security arguments. These arguments improperly tip the scales to the security side of the balance. Let’s analyze some of these arguments, the reasons they are flawed, and the pernicious effects they have.

The All-or-Nothing Fallacy
Many people contend that "we must give up some of our privacy in order to be more secure." In polls, people are asked whether the government should conduct surveillance if it will help in catching terrorists. Many people readily say yes.

But this is the wrong question and the wrong way to balance privacy against security. Rarely does protecting privacy involve totally banning a security measure. It’s not all or nothing. Instead, protecting privacy typically means that government surveillance must be subjected to judicial oversight and that the government must justify the need to engage in surveillance. Even a search of our homes is permitted if law enforcement officials obtain a warrant and probable cause. We shouldn’t ask: "Do you want the government to engage in surveillance?" Instead, we should ask: "Do you want the government to engage in surveillance without a warrant or probable cause?"

....

The Deference Argument
Many security proponents argue that courts should defer to the executive branch when it comes to evaluating security measures. In cases where Fourth Amendment rights are pitted against government searches and surveillance, courts often refuse to second-guess the judgment of the government officials. The problem with doing this is that, unless the effectiveness of the security measures is explored, they will win out every time. All the government has to do is mention "terrorism," and whatever it proposes to do in response -- whether wise or not -- remains unquestioned.

....

The Pendulum Argument
In times of crisis, many security proponents claim that we must swing the pendulum toward greater security. "Don’t be alarmed," they say. "In peacetime, the pendulum will swing back to privacy and liberty." The problem with this argument is that it has things exactly backward. During times of crisis, the temptation to make unnecessary sacrifices of privacy and liberty in the name of security is exceedingly high.

...

The War-Powers Argument
After Sept. 11, the Bush administration authorized the National Security Agency to engage in warrantless wiretapping of the phone calls of Americans. Headquartered in Maryland, the NSA is the world’s largest top-secret spy organization. The NSA surveillance program violated the Foreign Intelligence Surveillance Act (FISA), a federal law that required courts to authorize the kind of wiretapping the NSA engaged in. that it was acting legally under FISA. Instead, it argued that the president had the right to break the law because of the "inherent constitutional authority" of the president to wage war.

...

The Luddite Argument
Government officials love new technology, especially new security technologies like biometric identification and the "naked scanners" at the airport. The security industry lobbies nervous government officials by showing them a dazzling new technology and gets them to buy it. Often, these technologies are not fully mature. Security proponents defend the use of these technologies by arguing that privacy proponents are Luddites who are afraid of new technology. But this argument is grossly unfair.

...

These are just a few of the flawed arguments that have shaped the privacy/security debate. There are many others, such as the argument made by people who say they have "nothing to hide." We can’t have a meaningful balance between privacy and security unless we improve the way we debate the issue. We must confront and weed out the flawed arguments that have been improperly skewing the conversation.

All in all an excellent piece...read the rest here.

CA Privacy Legislation Targeted by Google, Facebook, and Other Tech Firms

A few weeks ago, in discussing the landmark Do Not Track bill, SB 761 (Sen. Alan Lowenthal), that would require any company collecting data from a California resident to provide a method of opting out of that data collection, I pointed out how two of privacy's greatest enemies - Facebook and Google - had come to oppose the legislation.

Yes, strange bedfellows in once sense, but brothers in arms in another (they both are aggressive opponents of the right to privacy). Recently, there's been another bill targeted by these tech goliaths, SB 242 (Ellen Corbett).

As noted by Bill Mullin of Paid Content, "The bill, as currently written, would require big changes to social-networking sites like Facebook. Most significantly, it would require users to set their privacy settings upon registration, rather than look for privacy settings after they’ve joined. It would also require settings to default to keeping information private, rather than making it public. (It almost doesn’t need to be said at this point, but the settings for a new Facebook profile default to public.) Willful violations of the proposed law would result in $10,000 fines."

As he also points out, technology and social media companies, from Facebook and Google to social media startups, are starting to form active coalitions designed to prevent California privacy bills from becoming law. This anti-privacy coalition now includes Google, Facebook, Yahoo, Zynga, Oodle, an online classified site; Identified, a professional networking site; Zecco, a community investing site; and BranchOut, a professional networking service on Facebook.

Before I get to a major article in the Wall Street Journal detailing this alliance - particularly between Google and Facebook - let me return to a couple key points by Mullin, who wrote, "It may seem surprising that national and even global tech companies might be regulated from Sacramento—but it has happened before. In fact, the requirement that websites have privacy policies displayed at all is due to a California state law passed in 2003. There is no federal requirement to have a privacy policy at all; but the California privacy law includes fairly detailed language about what must be included in a privacy policy. It also defines what constitutes personal information."

As I said, apparently California's efforts to bring regulatory protections up to speed with rapid technological advancements is garnering some well deserved attention.

The Wall Street Journal reports:

There’s not much love lost between Facebook and Google these days, but the companies are joining forces in one area – fighting two online-privacy bills that are moving through the California legislature.

One of the bills, a “do not track” proposal introduced by State Sen. Alan Lowenthal, would require companies to let people opt out of having their online data collected. The other, by State Sen. Ellen Corbett, would require social-networking sites to keep users’ information private by default and to remove personally identifying information if requested.

Both bills were approved by the Judiciary Committee, but they face strong opposition from some big players in the state. Google Inc. and Facebook Inc. are among dozens of companies and trade groups opposing at least one of the bills.

....

The bills are evidence of growing interest in privacy legislation, which is also being debated at the federal level. Last month, Sens. John Kerry (D., Mass.) and John McCain (R., Ariz.) proposed legislation that would create a “privacy bill of rights” that would let people block information from being shared and access personally identifiable information about themselves.

And the bill from Sen. Lowenthal adds to other efforts to regulate a “do-not-track” mechanism. Earlier this month, U.S. Sen. Jay Rockefeller (D, W.Va.) proposed a bill called the Do-Not-Track Online Act of 2011 that would prohibit companies from collecting information from people who have indicated they don’t want to be tracked. The Federal Trade Commission has discussed requiring companies to honor such opt-outs.

This year, makers of the Firefox, Internet Explorer and Safari Web browsers have all made tools within their browsers that let users indicate they don’t want to be tracked. But tracking companies aren’t required to honor those messages.

 ...

The California bills are the latest in a series of moves by the state to confront privacy concerns more aggressively than the federal government has thus far. The state already allows residents to get access to some of the data companies have on them, for example.

“There may be more of a chance for federal legislation if we see states threatening action,” said Justin Brookman, the director of the Project on Consumer Privacy at the Center for Democracy and Technology.

Privacy advocates have praised the general intent of the California bills – giving consumers more access to their information and more control over it. But even supporters of the ideas have said there are a few problems. The bill from Sen. Corbett, for example, would allow parents to request the removal of a child’s personally identifiable information as long as the child was under 18. Proving that someone is a child’s parent or guardian would be extremely difficult, and removing teens’ information would be problematic, Mr. Brookman said. “Teenagers actually have First Amendment rights,” he added.

To read more on the Do Not Track bill in particular, you can check out my recent posts, here, here and here

Clearly, I believe, strongly, that consumers should have the right and ability to tell websites not to spy on them or collect detailed profiles based on what they choose to do on the web. Remember, we should OWN our data, and that means we should have control over how its used - if used at all.

I've also often made the point, that when it comes to this issue in particular, an interesting dichotomy is at work. On one hand, while its true people seem to "care" about privacy on one level, they tend to do very little to actually do so. Which in my mind, makes easy to use, clear options to protect privacy all the more paramount. Because, once people are given such a choice, not only will more people choose to "not be tracked", I think more people will become more AWARE of just how all pervasive such monitoring of nearly everything we do has become.

Another "Temporary" Extension of the Patriot Act

This is becoming an annual slap in the face to the Constitution and codification of our burgeoning security state that I have termed the "Fear Industrial Complex". Yes, its Patriot Act extension time! The Senate, thanks to a deal between majority leader Harry Reid and his Republican colleagues to sidestep debate and jam the civil liberties killing legislation through, is expected to extend the Act for another 4 years.

Forget about the fact that if there's ANYTHING deserving of debate, its the Patriot Act. But what of this increasingly common procedure to abdicate, you know, democracy related responsibilities in Congress (War on Libya anyone?)?

Ironically, this is EXACTLY how the PATRIOT Act first came into existence 10 years ago. No debate, no reflection on the precedent we were about to set, and no real consideration for the pandora's box we were about to open.. Yet, here we are, again, with Congress putting its stamp of approval on such "unconstitutional greatest hits"as:

• 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. 
• 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.

As for the question regarding why we need more debate, and more protections, how about the report recently released in which the FBI admitted to the President’s Intelligence Oversight Board to violating the law at least 800 times on national security letters, going well beyond even the loose safeguards in the original provision. According to the report the FBI “may have violated the law or government policy as many as 3,000 times” between 2003 and 2007, according to the Justice Department Inspector General, while collecting bank, phone and credit card records using NSLs.

But don't take my word for it. The Electronic Frontier Foundation (EFF) has found plenty of evidence regarding FBI abuses of the PATRIOT Act. For instance, the FBI itself reported nearly 800 violations of privacy laws and regulations to the President's Intelligence Oversight Board from 2001 to 2008.

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.  

We also 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.

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 noted scholar Juan Cole noted, "The US Bill of Rights says that people have the right to privacy in their personal effects and their communications from government prying except where the police obtain a warrant from a judge. The tendency in the US for the past 40 years has been to chip away at this requirement, giving government agencies more and more unsupervised surveillance authority."
 
Yet, knowing all that, Congress isn't going to even have this debate in the light of day.

As I point out each year we renew this abomination, 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 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, that resistance has largely evaporated, particularly with the last elections defeat of privacy champion Russ Feingold.

To give credit where credit is due, Sen. Jeff Merkley (D-OR) did release a strong statement today lamenting the lack of debate

    Senator Jeff Merkley says he was very concerned when he heard Thursday Senate leaders would move to close debate Monday on a package extending three Patriot Act rules. Jeff Merkley: “I think it’s outrageous that there’s a proposal for a four-year extension in which the intention is to have no significant debate on the floor of the Senate, and no opportunity for amendments.” [...]

    Merkley says he isn’t sure if the extensions will pass, but notes some of his colleagues sounded unhappy about the parliamentary move used to forestall more debate.

    Jeff Merkley: “There is some chance that reaction may be strong enough to change that and turn this into a real debate. Leadership may say we have other things to get to by next Friday. My reaction is we’ve had plenty of time to have a thorough debate on the floor.” 

As David Dayen lays out, in addition to Merkley, Sen. Mark Udall (D-CO) opposes the quick reauthorization without debate. He sent an email to his supporters asking for them to sign a petition calling for the reform of the Patriot Act.

    Benjamin Franklin once said that any society that would give up essential liberties to pursue security deserves neither and will lose both. Those words ring true today [...]

    But while many of the PATRIOT Act’s provisions — which I support — have made our nation safer since the devastating terrorist attacks of 9/11, there are three provisions that fail to strike the right balance between keeping us safe while protecting the privacy rights of Coloradans. Instead, these three provisions have been far too susceptible to abuse by the federal government, even in the name of keeping us safe from terrorism [...]

    These three provisions are troubling because they are ripe for abuses that involve expansive government surveillance of innocent people, even though common sense fixes and protections exist if only we were allowed to debate them.

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.

Julian Sanchez provides another aspect of the Act that should be garnering more attention, stating:

More urgent than any of these (provisions), however, is the need to review and substantially modify the statutes authorizing the Federal Bureau of Investigation to secretly demand records, without any prior court approval, using National Security Letters. Though not slated to sunset with the other three Patriot provisions, NSLs were the focus of multiple proposed legislative reforms during the 2009 reauthorization debates, and are also addressed in at least one bill already introduced this year. Federal courts have already held parts of the current NSL statutes unconstitutional, and the government’s own internal audits have uncovered widespread, systematic misuse of expanded NSL powers. of NSL authority — and, indeed, should significantly curtail it. In light of this history of misuse, as well as the uncertain constitutional status of NSLs, a sunset should be imposed along with more robust reporting and oversight requirements.

John Whitehead wrote an excellent piece a couple months ago entitled "Renewing the Patriot Act While America Sleeps". He states:

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.

....

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.


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.”

Again, as I have written in response to past Patriot Act extensions: 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?"Another question worth pondering: Can we really "defeat" terrorism by embracing a less free and more fearful society (two primary goals of terrorists)?

California's Office of Privacy Protection on Budget Chopping Block

In these times of budget deficits and the unfortunate embracing of austerity measures in California and across the country, its not a big surprise that California's Office of Privacy Protection has been targeted for elimination.

But, as with so many other programs on the chopping block, there's a strong case to be made that eliminating this office does more harm than good, both in financial terms, and privacy terms.

Let me explain why I believe this to be the case by posting our (Consumer Federation of California) support letter for the office recently sent to the Assembly Budget Subcommittee 4, where this issue will be debated next.

The Consumer Federation of California opposes the item on Page 114 of the Governor’s May Budget Revision that would eliminate funding for the Office of Privacy Protection. We believe the net effect of the elimination of this agency would be increased state government costs and decreased state government revenues – more than offsetting the $500,000 savings the proposal seeks to achieve.

This small agency, located in the State and Consumer Services Agency, is the nation’s first state agency dedicated to advancing consumer privacy. In the ten years since it was created, it has provided important assistance to tens of thousands of California consumers, including many victims in need of guidance in mitigating the negative effects of identity theft. The Office of Privacy Protection assists small business and government agencies in better understanding privacy laws and best practices, and it conducts education outreach to thousands of Californians each year.

As technology rapidly evolves, new avenues for invasion of privacy are created. This increases the need for a state agency that has as its mission the protection of personal privacy. The Consumer Federation of California has recently worked on privacy impacts of online commerce, deployment of the smart grid, internet tracking, automobile insurance rate setting, and electronic medical records. These are all areas where the demand for the kind of expertise available through the Office of Privacy Protection will only increase.

The Office of Privacy Protection has been substantially reduced over the past few years. Ten years ago, this agency had a budget of some $1,100,000 and a staff of nine FTE employees. Today its budget stands at about $500,000 and seven positions.

We understand the extraordinarily difficult decisions lawmakers must make to balance the state budget during this protracted economic recession. But some reductions have the unintended consequence of increasing government costs or diminishing state revenues beyond the level of short term saving that the cuts may achieve.

A closer examination of the role that the Office of Privacy Protection provides to California’s economy militates against the elimination this agency as a cost cutting move.

California’s modest investment in privacy protection produces a much bigger positive contribution to our state’s bottom line. The improvements to the state’s balance sheet include assistance to law enforcement agencies in combating and enforcing against identity theft. This reduces expenditures by state and local agencies for staff training and hiring of outside consultants to provide this expertise.

The Office of Privacy Protection also provides assistance to California businesses in developing practices that comply with state privacy law, reducing business costs in litigating and settling lawsuits that arise from inadvertent violations of privacy laws. This in turn enhances taxable California business profits. The Office assists taxpayers in avoiding and mitigating the effects of identity theft. This reduces the tax deductions that ordinary Californians would claim for losses resulting from this form of criminal activity.

In other words, the services of the Office of Privacy Protection more than pay for themselves in the form of greater state tax revenues and reduced state and local government agency costs.

We respectfully urge you to restore funding to the Office of Privacy Protection.