About a year ago, I wrote a blog called “Big Brother Wants More,” describing a bill then being discussed in Congress called CISPA, the Cyber Intelligence Sharing and Protection Act, authored by Michigan Republican Mike Rogers. What Rogers wanted CISPA to do was provide a shield from lawsuits to U.S. companies (mostly in telecommunications) that furnish information to the government about any ‘suspect’ they find. The bill passed the Republican-led House but, as far as I can tell, died in the Senate. No matter; the revelations this week from whistleblower Edward Snowden about the extent of the spying the NSA is already doing, and the amount of information routinely coming from telephone companies like Verizon and internet companies like ALL of them from Microsoft to Google to Yahoo to Facebook, pretty much makes Rogers’ bill obsolete. That’s because, according to the stories published by Glenn Greenwald in London’s Guardian, the NSA already has “backdoor” access to all overseas phone calls going through Verizon (and the others as well), and, through another program called PRISM, server access to all email, Skype, Facebook, phone and other traffic going out over the internet. The NSA and FBI, through their spokespeople and the heads of Homeland Security and Cybersecurity in the U.S., plus Congressional shills like Diane Feinstein and the aforementioned Mike Rogers, all insist that the data being collected on Americans is “legal,” and besides does not contain actual conversations or words but only “metadata.” This is simply a red herring. Big Brother doesn’t need to listen to your actual words; as long as he has the records of every call you make and every email you send, and keeps them forever—which is what the system calls for—you are permanently in the database, always available, always under suspicion. As Birgitta Jonsdottir, the radical member of Iceland’s Parliament (she has just promised to aid Edward Snowden in seeking asylum) said yesterday on KPFA, regardless of who in a foreign country the NSA targets, the program implicitly focuses on not just the calls made by the target, but the target’s calling partners, and the calling partners of those partners. In effect, this means that simply targeting one person’s calls or emails automatically makes available tens, hundreds, or thousands of others who are in touch with him and his contacts, innocently or not. As Barton Gellman of the Washington Post put it on June 6,
Even..with no American singled out for targeting, the NSA routinely collects a great deal of American content. That is described as “incidental,” and it is inherent in contact chaining, one of the basic tools of the trade. To collect on a suspected spy or foreign terrorist means, at minimum, that everyone in the suspect’s inbox or outbox is swept in. Intelligence analysts are typically taught to chain through contacts two “hops” out from their target, which increases “incidental collection” exponentially. (emphases mine)
What we have, then, is new and now documented revelations that the NSA and the FBI and god knows what other U.S. government agencies are routinely spying on Americans and everyone else in the world, all of whom use giant American telecommunications companies.
What we are also learning is that this has been going on for a long time—which many of us had learned earlier from writers like James Bamford, James Risen and Dana Priest—but that right after 9/11 the Congress voted to flood the spy agencies with so much money that they have had to work overtime to try to spend it. One of the ways they’ve done this, of course, is to build scores of new facilities. Another is to contract with private corporations, many of which sprang up like rotten toadstools after 9/11 to get in on the spying bonanza, to use up the money. Booz Allen Hamilton, the $5 billion corporation for whom Edward Snowden worked (as did the current head of U.S. intelligence, James R. Clapper Jr.), is one of these; the telecom companies mentioned above also feed at this same trough. But to get some idea of the scale of all this, consider what Dana Priest and William Arkin revealed in their recent series in the Washington Post, “Top Secret America.” The figures are literally mind-boggling. First, “some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.” One of the locations still being built, according to James Bamford, is a super-computer in Oak Ridge, TN that is so large it occupies an entire warehouse. It will be the fastest computer in the world—a necessity when one considers the billions upon billions of data pieces that NSA and the rest are now gathering, and which something has to try to make sense of. Second, around 854,000 people in these organizations hold top-secret security clearance, of which Edward Snowden was apparently one. Third, “in Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001.” That’s the equivalent of almost three (3) Pentagons. Fourth, many of these agencies do the same work, “creating redundancy and waste. For example, 51 federal organizations and military commands…track the flow of money to and from terrorist networks.” Fifth, all this generates some “50,000 intelligence reports each year—a volume so large that many [reports] are routinely ignored.” Sixth, “every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications. The NSA sorts a fraction of those into 70 separate databases. The same problem bedevils every other intelligence agency, none of which have enough analysts and translators for all this work.” (all quotes from “Top Secret America.”)
The thing about all of this spying is that most of it circumvents the most basic of our rights against “unreasonable searches and seizures” embodied in the 4th Amendment to the U.S. Constitution. It may be useful to restate that centerpiece of American democracy here:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This means that in order for government officials to even enter your house and look at your private possessions, they must have a Warrant—obtained from a judge—specifically stating what it is they are looking for, and giving probable cause for why they think a crime might have been, or is about to be committed. Note the specificity here: they can’t enter because they just have a “gut feeling” that you might be involved in a crime; officials, that is, can’t just enter and look over everything in hopes of finding something incriminating. They have to provide a reasonable justification for their search (reasonable enough to convince a judge) and be looking for specific evidence of a specific crime. It should go without even saying that trolling through billions of phone calls and emails and skype or facebook or twitter conversations and comments is not specific and does not offer any reasonable evidence of a crime either committed or about to be committed. And especially if your records have come up “incidentally” in connection to some chain of someone else’s calls or contacts is a reasonable or probable cause lacking. It is for this reason that Sen. Rand Paul has already stated his intention to go to the Supreme Court to challenge the random capturing of the communications of millions of American citizens in the programs recently revealed. It is unconstitutional. Period.
As noted above, however, the shills for government spying—our so-called representatives allegedly protecting our rights—have been out in force defending the “legality” of all this spying. Feinstein, head of the Senate Select Committee on Intelligence, assured the public on June 6 that warrantless searches were “perfectly fine” because the information was only “meta”:
“Our courts have consistently recognized that there is no reasonable expectation of privacy in this type of metadata information and thus no search warrant is required to obtain it,” she said, adding that “any subsequent effort to obtain the content of an American’s communications would require a specific order from the FISA court.” (quoted by Jane Mayer, “What’s the Matter with Metadata,” New Yorker June 6, 2013.)
Feinstein added that 11 judges of the FISA court, meeting in secret, had authorized all this data collection and Congress had authorized it. (Concerning Edward Snowden, she called what he did “treason,” meaning she thinks his prosecution should seek the death penalty.) This would seem to suggest that Diane Feinstein, despite her position, doesn’t understand what metadata means or why it’s probably more dangerous than actual phone conversations. Susan Landau, a mathematician and Sun Microsystems engineer, pointed out why this is so in the same Jane Mayer article noted above. “It’s much more intrusive than content,” Landau said, explaining that vast amounts of information can be gleaned from studying “who you call, and who they call. If you can track that, you know exactly what is happening—you don’t need the content.” Patterns of phone calls from key business executives “can reveal impending corporate takeovers.” Phone calls to a series of physicians—a gynecologist, an oncologist, close family members—can indicate the precise nature of a personal crisis. Especially where reporters are concerned, the pattern of phone calls can reveal exactly who is giving information to whom and when, revealing all-important sources. All of this data, even without actual conversations has, according to Landau, already helped reduce the amount of time it takes U.S. Marshals to capture someone from 42 days to two days.
When it comes to whistleblowers like Edward Snowden, and a few years ago, Bradley Manning—even now being tried for “aiding the enemy” for his release, to Wikileaks, of a treasure trove of documents and the infamous video showing U.S. helicopter pilots in Iraq murdering innocent civilians, including two Reuters reporters and a good Samaritan father and his children trying to aid one of the wounded reporters—and before that William Binney and Thomas Drake for exposing the NSA program they designed and that they knew was threatening to “create an Orwellian state,” the Obama administration has become more draconian in its response than any administration in history. The administration and its spokespeople, of course, claim they are only trying to keep the American people safe. What they are really trying to do, however, as several observers have noted, is to keep themselves and their tattered reputations and bloated institutions safe from embarrassment. That is what all the prosecutions are about, that is what all the hand-wringing is about, that is what the desperate attempts to whitewash the massive violations of American privacy are about. America is being revealed as a police state, at least, and a totalitarian one, at worst. Hopefully, the measures to intimidate whistleblowers will all be in vain, and the whole apparatus will come tumbling down. But don’t hold your breath. It’s going to take some informed opposition, some courageous opposition, and an American public that is more attentive to its vanishing rights than to the latest celebrity scandal. And it may take the demolition of the capitalist system itself—as Bamford noted when he said, ‘there could never be a Church Committee today; too much money is at stake for both the corporations involved, and the Congresspeople who get their coffers filled by these corporations.
Meantime, let your alleged representative know what you think about this massive evisceration of fundamental American rights. Let him or her know that it is not OK with you, that you are not willing to exchange your privacy and constitutional rights for some over-hyped, supposed “war” on terror. Let him or her know that the scandalous collusion between the all-powerful state and the corporations that make billions serving (or is it stealing?) in a digital-military complex has long had a name, and it is not a kind one: fascism.
And do everything possible to make sure that courageous whistleblowers like Bradley Manning and Edward Snowden are not railroaded into endless incarceration for doing what every American should be doing: pointing out that the Emperor and the Empire he manages has been stripped of even a semblance of clothes.