The government's seizure of AP phone records has rightly been described by the news agency's president as a "massive and unprecedented intrusion." All those who care about a free and robust press, with protected sources, are justified in their deep concern and demand for answers from the Obama administration. But there is a caveat. It must be added to concerns about undue government surveillance on non-journalists too.
The AP spying scandal must be contextualized (as Kevin Gosztola pointed out): This administration is waging a war on whistle-blowers and First Amendment protections. A creeping surveillance state is being codified, under which the Fourth Amendment is also desecrated and journalists hardly stand alone as objects of surveillance.
As NSA whistle-blower Thomas Drake -- one of a record six individuals to be indicted under the Espionage Act during Obama's presidency -- told me recently, this government's approach to security resembles a "hoarding complex." His point was borne out by comments from CIA’s chief technical officer, Gus Hunt, who recently explained the spy agency’s strategy for a broad surveillance dragnet in a New York speech:
“The value of any piece of information is only known when you can connect it with something else that arrives at a future point in time,” Hunt said. “Since you can’t connect dots you don’t have, it drives us into a mode of, we fundamentally try to collect everything and hang on to it forever.”
A number of government efforts in recent years and months have helped inscribe this standard of constant recording and collecting into the political status quo.
FISA Amendments Act reauthorized
Congress rang in 2013 by reauthorizing parts of the FISA Amendments Act, the controversial 2008 bill that allows Americans speaking to people overseas to be surveilled without warrants. As the Electronic Frontier Foundation noted at the time:
The FISA Amendments Act allows the NSA warrantless access to Americans communicating with a “target” overseas as long as the conversation deals with “foreign intelligence information”—a broad term that can mean virtually anything. And unlike regular warrants, FISA Amendments Act orders can target whole groups of people—so one order could potentially affect thousands of Americans—and don't require probable cause that a crime has been committed.
Many believe that the government uses this law to justify receiving a fire hose of information about how Americans use the Internet. Whistleblower evidence (PDF) provided by AT&T technician Mark Klein and former NSA employee William Binney show that the NSA has installed equipment in AT&T facilities, creating a copy of all Internet traffic flowing through facility—including our domestic and international emails and web browsing data—and sending that data to the government.
This is exactly the type of government spying on our private lives that the authors of the Constitution banned when they wrote in the Fourth Amendment that we should be “secure in our papers."
The Cyber Intelligence Sharing and Protection Act was reintroduced to Congress this year, having failed last year owing largely to privacy concerns. However, as noted here numerous times, the version of CISPA that has passed the House recently and is currently in limbo in the Senate remains riddled with privacy issues. On the reintroduction of the CISPA bill earlier this year (couched, unsurprisingly, in the need for improved data sharing between the government and private sector for security purposes), I wrote:
CISPA’s stated purpose is to aid government, especially the intelligence community, in investigating cyber threats and ensure the security of networks against cyber attack, especially those emanating from countries like China and Iran. However, privacy concerns arose from the fact that the legislation entails companies potentially handing over users’ private information and browsing histories to the government. Online activist Aaron Swartz, who committed suicide last month facing trumped up federal charges, once called CISPA akin to “the Patriot Act of the Internet.”
Wiretap laws expanded
This year the DOJ also secretly authorized the interception of communications carried on portions of networks operated by AT&T and other Internet service providers, "a practice that might otherwise be illegal under federal wiretapping laws,” reported CNET. Government documents obtained by the Electronic Privacy Information Center (EPIC) showed that the DOJ has been granting immunity to service providers through special “2511″ letters that absolve carriers in the event that the surveillance is found to run afoul of federal law. As such, the DOJ is secretly enabling AT&T and others to evade wiretapping laws so that the government can conduct surveillance on parts of their networks.
And this month the New York Times reported that Obama is “on the verge” of backing a surveillance law overhaul -- prompted by the FBI and a Justice Department task force -- that would see Internet companies fined for failing to comply with government wiretaps, which would enable surveillance of all online messaging.
Albert Gidari Jr., who represents technology companies on law enforcement matters, told the Times, “We’ll look a lot more like China than America after this.” The proposal would force firms like Google and Facebook to build backdoors into their messaging systems to enable surveillance. TechDirt's Mike Masnick commented on the plan:
This would be a disaster for innovative companies and for public security and privacy as well. The DOJ really needs to learn that not everything must be tappable. As it stands now, if I just sit on a park bench talking to someone, the DOJ can’t tap it. Sometimes law enforcement doesn’t get the right to hear everything I have to say. That’s the nature of freedom and privacy protection that we’re supposed to believe in.
The federal government is not alone responsible for the creeping surveillance state. Coordination with local law enforcement and the private sector, through fusion centers and special divisions, has ensured that surveillance nationwide is easily facilitated, as highlighted in the treatment of Occupy activists. Documents obtained by the Partnership for Civil Justice Fund illustrated the energy put into high-level coordination between federal agencies, local police departments, fusion centers and hired corporate security firms in surveying, policing and ultimately cracking down on Occupy encampments and days of action.
Meanwhile, the DOJ condemned the intensive surveillance under which the NYPD put Muslim communities (although we still await the promised federal investigtion). But federal surveillance of Muslims has echoed the unconstitutional police tactics: warrantless spying, entrapment and detention.
An important, Pulitzer Prize-winning AP investigation revealed the NYPD's secret Muslim spying program in 2011. And, with a twinge of dark irony, it came to light this week that the reporters behind this very story were among those surveilled by the Justice Department. The investigation serves as an excellent example of the value of a robust, independent media. A free press may be necessary, but it is certainly not sufficient for a free society -- and a free press is a somewhat meaningless concept in a state of generalized, unrelenting surveillance that continues to sprawl unchallenged.