Privacy SOS

UK privacy flap: what does it really mean?

Demonstrators outside the NSA's Menwith Hill spy base in the rural UK. Credit: Phil Champion

"Echelon gives every appearance of a program that is far broader than it ought to be and poses serious questions about constitutionality."

So said former Congressman Bob Barr, Republican of Georgia, about the secretive signals intelligence monitoring program co-operated by the United States, the UK, Canada, New Zealand and Australia. Though shrouded in secrecy, a general understanding of the Echelon program has seeped its way into the public sphere: we think the program's goal has been to suck up all of the communications information in the world, without any oversight whatsoever from elected officials or from the general public.

The secretive and powerful NSA, with its 60,000 employees and nearly $6 billion a year budget, runs Echelon in the United States, cooperating with its partner signals intelligence agencies in the five Anglo countries listed above. As Rep. Barr told the press back in 2000, the NSA and the signals intelligence community in the United States have not faced serious scrutiny from Congress or the public since 1975, when the excesses of the FBI's COINTELPRO operation catalyzed a vigorous re-thinking of the limits of government power and privacy protections for ordinary people. That conversation brought us the Privacy Act, the spirit of which is now routinely violated by agencies from the local police on up to the NSA, and every intelligence agency in between.

It's now been thirty-seven years since we've had that serious conversation, and given that the center of gravity has since 9/11 further shifted towards government secrecy and intelligence omniscience, we are well overdue to have it again.

The news over the past two weeks alone should dispel any illusions that we live in anything other than a "turnkey totalitarian state," as NSA whistleblower William Benney has alleged. Thanks to James Bamford's tireless investigative pursuits, we know that the NSA is breaking ground in Utah for the largest data center in the world, which will be equipped to collect, store and analyze the nearly indescribable amount of data the agency vacuums up worldwide, including our phone calls, text messages, emails, and other digital communications.

But we now also know that it isn't simply the NSA that is up to warrantless snooping. A coordinated ACLU records request in 35 states nationwide has revealed that state and local police — not exactly military intelligence agencies — routinely obtain access to our cell phone location information without warrants or judicial oversight. One police manual advised that officers never disclose this fact to the public or the media, lest people become uncomfortable:

“Do not mention to the public or the media the use of cellphone technology or equipment used to locate the targeted subject,” the Iowa City Police Department warned officers in one training manual. It should also be kept out of police reports, it advised.

In Massachusetts, as in many states nationwide, we are grappling with how best to overturn or modify an administrative subpoena statute which grants prosecutors and police incredibly broad, secretive authority to obtain information about us from third party content holders like banks, social media companies, or online giants like Google.

We know that NSA has all of this information at its fingertips, and can easily pass it on to the CIA, DHS or FBI. We know that DHS and the FBI have put hundreds of millions of dollars and countless staff resources into integrating intelligence operations with state and local police.

We know that Congress has authorized NSA warrantless eavesdropping on US citizens and residents. And we know Congress has granted legal immunity to our telecommunications providers, so we effectively have no legal outlet through which to challenge these broad, unconstitutional invasions of our privacy.

This week we learned that police in the UK are itching to demolish whatever privacy protections remain in that country, hopeful that the parliament will likewise grant them the authority to limitlessly spy on anyone they want.

This is an outrage. But what would it really change?

Let's be honest.

We know that the United States has been sucking up all the communications traffic in the world it can get its hands on for at least the past ten years, since the 9/11 attacks. There is good reason to believe the NSA has been doing this for much longer, via the Echelon program, which some people believe has enabled the US and UK governments to spy on their own citizens indirectly. (Since it was illegal to spy on one's own citizens without a warrant, the US and the UK would keep tabs on undesirables from the other country, and keep one another informed, the argument goes.)

So what's really different here? The difference is that the gloves are coming off.

Whereas before the powerful, shadowy intelligence agencies felt the need to keep secret their overwhelming powers and creatively worked around domestic privacy laws to enable wide-scale social monitoring, they now stand before us nakedly, unapologetically, brazenly desirous of Total Information Awareness. 

And whereas it used to be the case that these major intelligence organizations — the NSA, the UK's Government Communications Headquarters or GCHQ — were the only games in town when it came to warrantless eavesdropping on a massive scale, it's increasingly clear that wannabe outfits like DHS' Operations Center and the FBI's National Counter Terrorism Center aim to create shadow intelligence clearinghouses for themselves. Whereas the instruments of state eavesdropping power were once primarily directed outwards, they are now boomeranging straight back to the domestic realm, and into our mobile phones, email accounts, IP logs and bank records.

The news this week shows us that from the bottom (local police) to the very top (NSA), the relationship between the governed and the governors has become so disfigured that it now exists in precisely the opposite formation to that which would enable even a pretense for democratic governance.

In other words: the government knows everything about us, and we know little to nothing about it. The UK's surveillance proposal simply adds more weight to the scale in the wrong direction. But the basic formulation of power remains unchanged.

We suspect that the US and UK governments have for years traded in information about us that they obtained without judicial oversight. What makes the most recent internet snooping proposal worse is that the UK is arguing that it should be able to use this information in a court of law.

That's where the rubber hits the road. That's why even amidst an admittedly bleak landscape of NSA level, out of control, worldwide snooping, we must push back against power grabs at the state and local level: against prosecutorial fishing expeditions, bad statutes that enable snooping without judicial oversight, and moves to allow for domestic internet monitoring like that occurring in the UK today. 

Literally nothing less than the possibility for democratic governance is at stake. 

© 2021 ACLU of Massachusetts.