I meant to post this last week. It is the regularly weekly “Inside the First Amendment” column from the First Amendment Center in Arlington, VA.. It is provided free to newspapers around the country.
Casting a digital driftnet over freedom
By Paul K. McMasters
First Amendment CenterHave you ever been electronically frisked? Or digitally probed?
It’s hard to tell, of course, since you don’t feel a thing.
That’s because government agents who sift through the megabytes of data that ordinary citizens spin off in their daily routines do their work secretly, silently and from far away.
As more and more of your personal life is translated into a digital existence, your government becomes more and more interested in that virtual persona, whose rights have yet to be clearly defined.
Chances are, in fact, that you would never know about a possible invasion of your personal privacy, even when government investigators put your data-self through an algorithmic lineup to see whether a “suspicious pattern” turns up.
But it would be difficult not to know that government agencies are hoovering up massive amounts of personal data, usually with the help of private companies and their customer databases. A numbing number of news articles in recent weeks reveal just how prevalent this investigative technique has become.
Last week, USA TODAY reported a National Security Agency program to collect from telecom companies calling records on millions of Americans, to check for networking “patterns” that might help track down terrorists or reveal suspicious activity.
The FBI reports that it has used national-security letters – meaning no court approval was necessary – to pore secretly through the bank, credit-card, telephone and Internet records of 3,501 citizens and legal residents.
The Foreign Intelligence Surveillance Act court reported to Congress that it approved a record number of electronic surveillance and physical searches in 2005. The court received 2,072 applications to conduct such searches and approved 2,072.
There were 1,754 such warrant applications the year before.The FCC reminded companies that provide high-speed Internet access and Web-based phone service that they have until May 14, 2007, to fix their systems so law
enforcement agencies can install wiretaps.Rep. James Sensenbrenner, R-Wis., is proposing legislation requiring Internet service providers to maintain records on individuals’ online activities for the use of
police in criminal cases.These most recent dispatches from the digital front come after the president last December confirmed reports in The New York Times that he had authorized the NSA to intercept telephone and e-mail communications between residents in the U.S. and suspected terrorists abroad without first seeking a warrant.
Such tactics cast a wide net for vaguely realized reasons and, as far as we know, no significant yield. If these intrusive techniques actually made us safer or prevented terrorist attacks, then government law enforcement officials might be better able to justify these programs. Still, they argue forcefully that such investigative approaches are legal and justified by the troubled times we live in.
Others are not so sure.
Polls in the last few days showed significant numbers of Americans alarmed by the news of the telephone companies’ cooperation with the feds on providing calling records. Political leaders from both sides expressed concern. There were calls for the FCC to investigate, from within and outside the commission. A number of class-action lawsuits have been filed against telephone companies for violation of customer
privacy.Whether legal challenges to such surveillance will succeed is much in doubt.
The Electronic Frontier Foundation has filed suit accusing AT&T of working with the U.S. government to conduct illegal electronic surveillance. On May 17, a federal judge denied a request by EFF to release documents it claims show that AT&T allowed the NSA to attach equipment to telephone circuits in San Francisco to facilitate “vacuum-cleaner surveillance of all the data crossing the Internet.”
On May 13, government lawyers submitted under seal a motion for dismissal of the EFF suit. The government reportedly will invoke the state-secrets privilege to derail the legal action without ever having to defend itself in open court or present
evidence that it acted within the law.Aside from invasion of privacy, such activity significantly affects innocent Americans’ constitutional rights, especially when it comes to such protected First Amendment activities as checking out material from the library, feeling free to call or receive calls as you wish, visiting Web sites and conducting Internet searches without worry, and
freely associating with others.And there is a real threat to the press’s ability to gather and deliver the news in recent reports that phone calls to and from journalists at ABC News, The New York Times and The Washington Post were being traced as part of the FBI’s investigation of leaks of classified information.
In an op-ed article in USA TODAY earlier this week, legal scholar Jonathan Turley wrote that “The Framers gave us a free press as the final safety net if all other checks and balances in the three branches of government fail.”
That is, if the safety net doesn’t get all tangled up in the government’s digital driftnet.
Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: pmcmasters@fac.org.
Channel Surfing, The South Brunswick Post, The Cranbury Press
Hank Kalet 