Privacy SOS

Political blackmail is real: Why lawmakers should care about electronic privacy more than most


Most good spy stories involve political blackmail. In the first season of the popular television show HOMELAND, about the CIA’s post-9/11 terror wars, the bearded old CIA veteran Saul meets with a federal judge to get a court order to conduct surveillance on someone in the United States without probable cause. The judge appears to balk for a moment, until Saul cryptically reminds him about that thing. With a look that says, “You got me, you bastard,” the judge relents and signs the order. The CIA, we are meant to understand, knows something about this judge that the judge does not want the rest of the world to know.

Knowledge actually is power.

We know that the NSA and FBI have for over a decade been collecting the phone records of every person in United States, which includes every member of congress. An NSA whistleblower alleges that the NSA deliberately spied on Supreme Court justices. For decades, the FBI under Hoover ran a counterintelligence program (codename: COINTELPRO) that brandished political blackmail as a central weapon for control and manipulation. In a piece of political theater that may never have come to light had it not been for the courage of a few dissidents, the FBI wrote an anonymous letter to Martin Luther King, Jr., urging him to commit suicide. We know you are a pervert, the letter said. You should just end it now, and save yourself the embarrassment when we expose you to the press.

Today, even local law enforcement agencies and private corporations possess incredibly sensitive information about all of us—elected and appointed political and judicial figures included. Although I don’t have data to support this claim, my experience growing up in the United States leads me to strongly assume that most Americans would like to believe that this is a country in which secretive law enforcement and spy agencies do not routinely manipulate sensitive information for political purposes. Blackmail is a thing that happens in the mob or in corrupt foreign countries, I assume many people think—not in the US government.

But I assume the opposite. The cliché that absolute power corrupts is a cliché for a reason—and it’s why basic democratic norms like checks and balances on government power are so important. When civil libertarians and rights advocates repeat the words ‘transparency, accountability, and oversight’ over and over again in innumerable contexts, it’s not because we like how they sound rolling around our mouths. These three practices are foundational in any society that seeks to be democratic (as opposed to just using democratic rhetoric) and fight the human tendency to abuse power.

Corruption is only natural. That’s why we build systems to check greed, selfishness, and abuse of power. Or, rather, it’s why we should.

Take the case of Congressman Jason Chaffetz. The GOP Congressman was highly critical of the Secret Service during a time when it seemed like the press was every week reporting on another in a series of embarrassing agency mistakes. It turns out that the Secret Service did not appreciate Chaffetz’ public criticisms. Instead of investing energy in fixing the problems with the agency that the Congressman wanted to discuss publicly, the assistant director of the agency used his access to confidential government databases to leak embarrassing information about Chaffetz to the press, which subsequently published it. “Some information that he might find embarrassing needs to get out. Just to be fair,” the assistant director wrote in an email to colleagues before the leak.

I don’t have lots of money, but if there was a way of discovering the whole truth about these secretive and powerful members of our society, I would bet one thousand dollars that law enforcement and security agencies from police departments all the way up to the NSA, and everywhere in between, routinely deploy confidential information for political purposes. I’ve seen far too many scandals come to light to assume anything other than rampant corruption at agencies like the FBI, CIA, and NSA—not to mention state and local police departments. Do you really think the CIA would torture and murder people, and then destroy the evidence and try to interfere with an investigation into its activity, but not engage in a little political blackmail on the side? Torture and murder are all good, but the use of sensitive personal information to acquire political power is going too far?

Maybe you disagree with my assumption that agencies with access to loads of sensitive information about people likely routinely use it to secure and expand their power, but it doesn’t matter if my assumptions are totally wrong. Even if you believe that security agencies are generally good, and only bad apples misuse their access to sensitive information, we have enough examples of such abuse to support the obvious conclusion that transparency, accountability, and oversight over security agencies are basic requirements in a free society. The only way to ensure people don’t abuse their access to information is to limit that access, and then institute and uphold rigorous transparency and oversight mechanisms to ensure they aren’t improperly using information they legitimately hold.

Ultimately, the ACLU’s call for a 21st century warrant requirement for the tracking and monitoring of our electronic communications and devices is a conservative call for basic reform. Nonetheless, it’s an uphill battle in many states to fold information age technology into foundational Fourth Amendment law.

But lawmakers considering bills like those currently before the Massachusetts state legislature, on license plate, drone, social media, and electronic privacy, should remember that corruption happens everywhere. In a state that suffered the terror reign of Whitey Bulger and his FBI cronies, you’d think that lawmakers would be clear on the need for basic accountability in law enforcement. As of today, however, Massachusetts falls far behind other states in the category of passing basic electronic privacy law.

Let’s hope we don’t wait until someone in Massachusetts state government gets Jason Chaffetzed before we take essential steps towards protecting personal information in the digital age. It’s a simple matter of common sense, and for legislators, might someday mean the difference between having a lovely morning and waking up to an embarrassing headline screaming their name.

© 2018 ACLU of Massachusetts.