Our benevolent surveillance state

Both the scope and the number of databases maintained by the federal government on American citizens continue to grow.

Published April 18, 2007 3:31PM (EDT)

(updated below - Update II - Update III)

The expansion of the Surveillance State is endless. Buried within an ABC report on the Virginia Tech shootings is this paragraph (h/t reader DT):

Some news accounts have suggested that Cho had a history of antidepressant use, but senior federal officials tell ABC News that they can find no record of such medication in the government's files. This does not completely rule out prescription drug use, including samples from a physician, drugs obtained through illegal Internet sources, or a gap in the federal database, but the sources say theirs is a reasonably complete search.

Is there any good reason whatsoever why the federal government should be maintaining "files" which contain information about the pharmaceutical products which all Americans are consuming? The noxious idea has taken root in our country -- even before the Bush presidency, though certainly greatly bolstered during it -- that one of the functions of the federal government is to track the private lives of American citizens and maintain dossiers on what we do.

If that sounds hyperbolic, just review the disclosures over the course of recent years concerning what data bases the Federal Government has created and maintained and the vast amounts of data they contain -- everything from every domestic telephone call we make and receive to the content of our international calls to "risk assessment" records based on our travel activities to all sorts of information obtained by the FBI's use of NSLs. And none of that includes, obviously, the as-yet-undisclosed surveillance programs undertaken by the most secretive administration in history.

It is true that much (though not all) of this data is already scattered in the hands of various private corporations and insurance companies. But, for multiple and self-evident reasons, it presents a fundamentally different type and level of threat when it is all consolidated and centralized in the hands of the federal government. Amazingly, it is the political movement that spent all of the 1990s stridently warning of the dangers of federal government power -- The Black Helicopters And Janet Reno Are Coming -- which has brought us this Surveillance State and continues to cheer on its infinite expansion.

The federal government data base which contains all of our controlled substance prescriptions, for instance, was mandated by a law -- The National All Schedules Prescription Electronic Reporting Act -- passed in 2005 by the Republican-controlled Congress (though with full bipartisan support) and signed into law by the "conservative" Leader. That law appropriates funds to each state to create and maintain these data bases which are, apparently, accessible to federal agencies, federal law enforcement officials, and almost certainly thousands of other state and federal employees (as well as, most likely, employees of private companies).

Along these lines, the Department of Homeland Security last month promulgated proposed regulations for enforcement of the so-called Real ID Act of 2005 (.pdf). Those regulations require that every state issue technologically compatible Driver's Licenses which enable, in essence, uniform and nationwide tracking of all sorts of private information about every individual. Just as the Prescription Drug Tracking Law is "justified" by the Drug War, these national ID cards are justified by the War on Terrorism. As the Homeland Security Department explains:

The 9/11 Commission endorsed the REAL ID requirements, noting that: "For terrorists, travel documents are as important as weapons . . . All but one of the 9/11 hijackers acquired some form of identification document, some by fraud. Acquisition of these forms of identification would have assisted them in boarding commercial flights, renting cars, and other necessary activities."

EPIC notes that "the deadline for public comment [on the DHS regulations] is May 8, 2007" -- and from what I understand, more public comments are needed from people who have strong views about these regulations. EPIC explains why these regulations are so disturbing:

The requirement for non-REAL ID-compliant DL/ID to have explicit "invalid for federal purposes" designations, turns this "voluntary" card into a mandatory national ID card. Anyone with a non-REAL ID-compliant card would be instantly suspicious. Compliant cards would be necessary for federal purposes such as entering courthouses, air travel or receiving federal benefits, such as Medicaid or Social Security. It would be easy for insurance companies, credit card companies, even video stores, to demand a REAL ID-compliant DL/ID in order to receive services.

That the "conservative" movement is ushering in measures such as a federal law mandating that every state create National ID cards is ironic on multiple levels. But as Wired's Ryan Singel notes, numerous states -- the latest being Montana (after Idaho, Arkansas and Maine) -- have enacted laws refusing to comply with these requirements on the ground that they infringe on the privacy of the citizens of that state and/or on the ground that the law violates federalism principles by taking over areas (i.e., regulating driver's licenses) traditionally preserved for the states. For those reasons, many other states, particularly in the Mountain West and even the Deep South, are on their way to enacting similar laws refusing to comply.

It is simply no longer news when the "conservative" movement violates every "small-government" and states' rights principle it pretended to embrace ("conservatives" Andy McCarthy, David Frum, and John Yoo tonight are appearing at an event to argue for this Orwellian proposition: "Better More Surveillance than Another 9/11"). Apparently, we need to empower the federal government to maintain comprehensive dossiers on all Americans, otherwise our freedoms might be at risk from The Terrorists.

It is hardly worth pointing out that the idea of the Federal Government engaging in massive surveillance of innocent American citizens is about as far away from the core beliefs of the American Founders as one can get. Anyone who does not realize that is likely beyond the realm of persuasion.

But the only people who would think that it is fine to have the Federal Government compiling dossiers like this are those who place blind faith in our Leaders not to abuse their power. But that is the ethos that is the exact opposite of the one on which the country was founded, but which has come to dominate so much of our political culture.

UPDATE: Markos notes some news that is highly encouraging on several levels -- it was Democratic Governor Brian Schweitzer who, in Montana, drove enactment of the state law refusing to comply with the REAL ID Act, and Democratic Senator Jon Tester -- who, as Markos said, "violated every tenet of conventional wisdom and the blatherings of the pundit class by running on opposition to the Patriot Act" -- intends to lead efforts in the Senate to repeal the law altogether.

As the map linked above demonstrates, most of the states in the Mountain West are still highly resistant to the types of invasive federal surveillance schemes which the Bush-led Republicans/neoconservatives crave more and more. Markos has insightfully argued before -- in an essay for Cato Institute -- that there is a potentially valuable political opportunity for Democrats in the Mountain West (and elsewhere) to stand for principles of individual liberty against ever-expanding federal police power -- efforts that I wrote about awhile back, here at Salon, in the context of the rejection by Arizona (and near-rejection by Colorado) of anti-gay-marriage referenda.

Whatever else one can say the modern-day Republican Party stands for, individual liberty is plainly not it. Democrats could do themselves -- and the country -- a great service by devoting themselves to a defense of the core liberties which are being eroded so rapidly by "conservatives" in the name of Protection from the Terrorists and The Glorious, Endless, Epic War of Civilizations.

UPDATE II: Having looked at this prescription data base law more carefully -- and I should caution that today is the first day I have really looked at it -- I really do not see any authorization for federal investigators to have accessed this information in connection with the Virginia Tech shootings.

The data bases in question are maintained by the various states (funded by Congress pursuant to the 2005 law). That statute outlines the specific circumstances when that information can be released to federal officials, and prohibits access except in those circumstances. Following are the access authorization provisions, with the plainly inapplicable portions deleted:

(f) Use and Disclosure of Information-

(1) IN GENERAL- Subject to subsection (g), in implementing or improving a controlled substance monitoring program under this section, a State may disclose information from the database established under subsection (e) and, in the case of a request under subparagraph (D), summary statistics of such information, only in response to a request by -- . . . .

(B) any local, State, or Federal law enforcement, narcotics control, licensure, disciplinary, or program authority, who certifies, under the procedures determined by the State, that the requested information is related to an individual investigation or proceeding involving the unlawful diversion or misuse of a schedule II, III, or IV substance, and such information will further the purpose of the investigation or assist in the proceeding; . . . .

(D) any agent of the Department of Health and Human Services, a State medicaid program, a State health department, or the Drug Enforcement Administration who certifies that the requested information is necessary for research to be conducted by such department, program, or administration, respectively, and the intended purpose of the research is related to a function committed to such department, program, or administration by law that is not investigative in nature. . . .

Those are the only two possible provisions which authorize disclosure of any of this information to federal agents, and neither even arguably apply -- at least in the absence of some absurd claim that they are posthumously investigating the Virginia Tech shooter for having illegally obtained prescription drugs.

I realize, of course, that we are not supposed to mind when our Government breaks the law when the law-breaking is for our own Good (like when The President broke the eavesdropping laws but only did so to Protect us, so it was OK). But the Congress created this data base and then placed fairly stringent protections on who could access this sensitive data and specified the circumstances under which access was permitted.

If ABC's report is correct and federal investigators accessed this data base in order to determine if the VT shooter had obtained anti-depressants, that would appear (again, based on my limited knowledge of this statute, which might be wrong) to be illegal. The larger issue is still the continual compiling of data on the private activities of Americans, but the accessing of this data by the Federal Government in violation of this statute (if that occurred) seems notable as well.

UPDATE III: According to this White House Press Release, 33 of the 50 states have now implemented what the White House calls "Prescription Drug Monitoring Programs." Presumably, that means that 17 states have not implemented such programs, which means that no search is comprehensive.

The law was jointly sponsored by Democratic Senator Dick Durbin and Republican Senator Jeff Sessions. Durbin's "rationale" for the bill is here.

This statute has received so little attention because (like the Real ID Act), it was passed (I believe) unanimously, certainly with no meaningful opposition in either party. This law is a perfect example of the serious deficiency in our political system -- described recently by Arianna Huffington -- whereby ever-expanding legislative horrors justified by the War on Drugs are allowed because nobody of any significance in either party is ever willing to oppose any drug prohibition measures.

By Glenn Greenwald

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