Privacy SOS

Surveillance state trickle down and the urgency of now: we must support the USA Freedom Act

NYPD commissioner Ray Kelly plays war games at the Navy College

The man who introduced the USA Patriot Act twelve years ago is trumpeting legislation that will change a central piece of the supposed 'anti-terrorism' law, the bulk records phone surveillance program. Wisconsin Republican Rep Jim Sensenbrenner's USA Freedom Act, sponsored by Vermont Democrat Pat Leahy in the Senate, takes aim at an 'intelligence' culture reliant on routine, warrantless, dragnet spying. The bill sends an important message: surveillance should be specific and targeted at individuals, not entire societies.

Many civil libertarians think the bill, which also institutes meaningful transparency and oversight mechanisms, doesn’t go far enough. And they’re right. As EFF has said, the bill is the floor of surveillance reform, not the ceiling. But establishing this floor is absolutely critical to the success of our larger goal of dismantling the surveillance state. We need to win something big to feel our power, and the dangers of inaction are too great.

The digital revolution has transformed power, and the balance between the state and we the (data) subjects is completely out of whack. All signs suggest this imbalance will rapidly worsen if we do not intervene. At the edge of quantum computing and a brave new 21st century, our representatives in congress must boldly announce to the executive branch and the (sometimes secret) courts that warrantless surveillance of massive quantities of sensitive personal information is unacceptable. 

The bulk records NSA and FBI collect about all of our phone calls enable the government to make sense of the most private aspects of our lives, to track us historically and in real time, and to map our relationships and associations — all without warrants. The program sets extremely dangerous precedent in the era of 'Big Data'. As security expert Bruce Schneier has said, "When Obama tells you, 'Don't worry, it's just metadata,' he's telling you, 'Don't worry, you're all just under surveillance.'" 

It's bad enough that the NSA and FBI have this information. But the urgency to end mass surveillance is intensified by recent disclosures suggesting that the harm from the 215 program or bulk data programs like it might soon get much, much worse.

Our most revealing associational information: coming soon to your local police department?

In an NSA strategy document leaked by Edward Snowden and revealed to the public by the New York Times, the agency says that one of its primary goals for the 2012-2016 period is to expand its sharing of bulk data within the government. Presumably this includes our phone records, which have been collected in bulk on a routine basis since at least 2006. 

To which government agencies could the NSA expand bulk data sharing? It couldn’t be the FBI, the agency that actually requests and collects the ‘metadata’ from third parties like telecommunications companies. The FBI already has its hands on this information. Nor is the NSA likely talking about the CIA, which we learned purchases phone records in bulk from AT&T for $10 million per year. It probably isn’t talking about the Drug Enforcement Agency, either, because the DEA operates its own 'Special Operations Division' that already accesses FBI/NSA bulk surveillance data. So when NSA talks about expanding access to its bulk data collections, what is the agency talking about?

My fear is that the NSA and FBI want to share our associational and private phone information with the Department of Homeland Security, and state and local police departments. There are currently nearly five million people in the United States who have security clearances, and increasingly many of these people work either as contractors or directly for state and local police departments. Could it be that the federal government wants to grant many of these millions of people access to our records, detailing the private lives of hundreds of millions of people accused of no crime?

Fusion centers are among the obvious places where this bulk data could be shared. Established after 9/11 to promote 'intelligence' sharing in among state, local, and federal law enforcement, as well as private industry, the military, and other government agencies, the centers host cleared employees who comb through innumerable databases, collect and process 'intelligence,' and produce reports. Even though multiple congressional investigations have found fusion centers to be duplicative, wasteful, and invasive of the civil liberties and privacy rights of Americans, federal, state and local government continue to fund them to the tune of hundreds of millions of dollars a year. Just this fall, DHS gave the city of Boston $17.5 million for so-called 'antiterrorism' purposes, a sizable chunk of which will go to the local fusion center, the Boston Regional Intelligence Center (or 'BRIC'). 

Can we expect the NSA and FBI to begin encouraging fusion centers to tap into their vast databases containing our private lives? It seems possible, if we don't stop it. But we cannot allow that to happen because the consequences would be absolutely devastating for our privacy and liberty. 

Just imagine if your local police department could map the associational patterns of everyone in your city or town. Police departments interested in intimidating or crushing dissident movements would be given a treasure map pointing to the people at the center of organizing efforts. Police officers who want to know whether their wives are talking to their ex-boyfriends could figure it out with the click of a mouse. Any local intelligence analyst with access to the database could track the calls of local politicians, judges, and journalists. Every corrupt local cop and prosecutor would be handed a gold mine she could plumb for blackmail purposes. It would be an absolute disaster for local governance, civil liberties, and the possibility of democracy itself. 

Imagine being pulled over by a police officer in your city, who goes back to his car and checks to see where you were five minutes ago based on bulk location data gifted by the NSA. Imagine how local investigative journalism will suffer if reporters are afraid to challenge the police or the state, because their sources could be exposed with the click of a mouse. Think about how police and prosecutors could abuse their knowledge and power to influence elections, or sway elected officials into adopting their positions on issues related to police powers.

The government's defense of bulk data collection — whether it's the NSA/FBI phone records program or police department license plate reader databases — is that they will only query the records 'haystack' if they have a really good reason. Just Trust Us, officials at every level say. 

But would you give me your email password and all your private records as long as I promised that I wouldn't look at your emails unless I had a good reason? Of course not. That's because you know someone having direct access to your private information is itself abusive. And the wider information is shared, the more dangerous the threat — especially when it is shared with people you see every day around town, or who have a personal interest in your life.

Absolute power corrupts absolutely. From the NSA all the way down to our local police departments, we need to ensure that the government does not possess unlimited power over us. That's a recipe for totalitarian society. To prevent it, we need to set a strong precedent that the public and congress do not accept warrantless dragnet metadata surveillance. 

Yes, the bill is a floor, not a ceiling. But without a solid floor under our feet we don't stand a chance in our fight against the surveillance state. Take action to support the USA Freedom Act now.

© 2020 ACLU of Massachusetts.