Privacy SOS

by Carol Rose

Henry Steele Commager Annual Speech
Greenfield Community College | November 2010
It is an honor to be invited to give the Henry Steele Commager address, since Professor Commager was an ardent defender of the Constitution and the Bill of Rights – and this is precisely the mission of the American Civil Liberties Union, both here in Massachusetts and nationwide. 
It’s particularly wonderful to be here in Greenfield, where the ACLU has many members and, as a statewide organization, hopes to have at least … say … 100 more after today.
Henry Steele Commager was a contemporary of the author George Orwell, whose book, 1984, coined the term “Big Brother” to describe the dictator of a total surveillance society ….in which everyone is under complete surveillance by a ruling elite and reminded constantly that “Big Brother is Watching you.”
Both Orwell and Comminger warned of the danger to our democracy posed by a world in which faceless government bureaucrats — “Big Brother” – could monitor our every move, keystroke, and even try to predict things we hadn't done yet…but might do. 
Today, a total surveillance society is no longer science fiction: it is very nearly upon us. We now live in a world in which, increasingly, not only big brother, but lots of "little brothers and sisters” in local law enforcement and local bureaucracies can monitor our every move, without our knowing about it.
Unless we act, rapid advances in surveillance and information technology soon will outstrip the ability of oversight laws and our democratic process to keep pace. 
So, let’s unpack the secret surveillance society and talk about what it will take to preserve our privacy and our democracy.
In recent years, the government has dramatically enhanced its power to operate in secret and to spy on ordinary Americans. The link between secrecy and surveillance is critical: in effect, our government is increasing its power to watch its citizens, while diminishing the power of citizens to watch their government – the very antithesis of democracy.
First, let’s talk about secrecy. In the recent Washington Post expose, “Top Secret America,” investigative reporters Dana Priest and William Arkin exposed an enormous top-secret bureaucracy that is being erected with our tax dollars. 
A few facts & figures from their investigation:
The top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.
Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.
* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.
* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings – about 17 million square feet of space.
Last year, the government spent $80 billion on civilian and military intelligence activities, an increase of 7 percent over the year before, and an additional $42.6 billion on the Department of Homeland security.
Secrecy is only half the battle. The other aspect of the secret surveillance-industrial society has to do with domestic spying on ordinary Americans by the government.
Shortly after 9/11, the Department of Defense's Defense Advanced Research Projects Agency (DARPA) began a project called “Total Information Awareness” to collect and mine vast amounts of information about the American public, including their telephone records, bank records, medical records, and educational and travel data, in an attempt to identify terrorists. 
Congress de-funded TIA in 2003 in the wake of the public outcry denouncing such an Orwellian spying operation – but responsibility for large scale information collection and data mining programs was simply moved to a network of state and local surveillance centers, designed to organize local domestic information collection activities into an integrated system that collects and can distribute down to local law enforcement and up to the federal intelligence community. 
Former Massachusetts Governor Mitt Romney helped create this new domestic intelligence system by signing an executive order in 2004 establishing the Commonwealth Fusion Center, a multi-agency data collection hub under the supervision of the Massachusetts State Police. 
Opened with neither public debate nor state legislative action, the Fusion Center operates with virtually no independent oversight, with overlapping lines of authority between federal and state agencies, and without adequate privacy protections. In 2005, the Boston Police Department opened its own intelligence center, known as the Boston Regional Intelligence Center (BRIC). 
Three years ago, Boston was chosen by the federal government as one of three “pilot” cities (the others are Los Angeles and Miami) to launch a “Suspicious Activity Reporting” initiative. The SAR program encourages state and local police (and local neighborhood informants) to collect and report on non-criminal “suspicious” behavior, including protected First Amendment activity such as taking photographs, writing notes, and espousing “extremist” beliefs. These reports — and information from dozens of other similar databases — are fed into BRIC and the Fusion Center, and made available – without independent oversight or control – to local, state, and national law enforcement. Within the next three years, the federal government plans to expand the SAR program to 72 cities – precisely the number of fusion centers operating across the nation today. 
These surveillance centers employ officials from federal, state and local law enforcement and homeland security agencies, as well as other state and local government entities, the federal intelligence community, the military and even private companies, to spy on Americans in virtually complete secrecy. Combined with the SAR program, they represent a significant departure from traditional law enforcement objectives and methods. They expand what information may be collected and with whom it may be shared. They empower local and state officials, including undercover operatives, to engage in domestic intelligence collection and monitoring of everyday behavior beyond criminal investigations. Finally, fusion centers invite non-law enforcement participants – including private sector companies, community-based informants, and the U.S. military – into local and state domestic surveillance operations.
This dramatic expansion of surveillance raises profound privacy and civil liberties concerns, notably for individual privacy and freedom of speech and association. 
Already, the ACLU has documented dozens of recent cases in which the government has engaged in improper domestic spying on ordinary residents engaged in protected political activities — such as anti-war causes, environmental protection, and religious worship (see attached summary). 
The federal Department of Homeland Security's Privacy Office itself has “identified a number of risks to privacy presented by the fusion center program,” including: (1) Ambiguous lines of authority, rules, and oversight; (2) Participation of the military and the private sector; (3) Data mining; (4) Excessive secrecy; (5) Inaccurate or incomplete information; and (6) Mission creep. Despite these findings, the DHS Privacy Office has failed to adequately to address these concerns, and instead “presumes that the States are interested in preserving and competent to protect the rights of their own citizens, and offers no opinion as to their “methods.”.”
All this means that it is up to us – citizens and activists at the state level – to enact legislative remedies to build a system of checks and balances against this unprecedented system combining the tactics of McCarthyism with the technologies of Big Brother. 
The ACLU of Massachusetts has spearheaded efforts in this state, and nationwide, to put SUNLIGHT on SURVEILLANCE. Over the last two years, we’ve unearthed hundreds of pages of government documents about domestic spying – posted at – in an effort to understand what is being fed into these domestic spying centers. What we found – – is that vast amounts of garbage are being fed into these centers from a range of sources – with virtually no independent oversight.
Meanwhile, reports of domestic government surveillance of protected First Amendment Activity pile up from around the nation. Here are just a few of the many examples:
A May 7, 2008 report prepared for the Department of Homeland Security entitled “Universal Adversary Dynamic Threat Assessment” labeled environmental organizations like the Sierra Club, the Humane Society and the Audubon Society as “mainstream organizations with known or possible links to eco-terrorism”
In California, animal rights rallies, environmental demonstrations, anti-war protests, student protests against military recruiting on campus, labor union organizing, and demonstrations against police brutality have all found their way into government databases at the California Anti-Terrorism Center, the California Office of Homeland Security and the LA County Terrorist Early Warning Center (LACTEW). 
The Maryland State Police used undercover officers to infiltrate and spy on non-violent peace activists, death penalty groups, Amnesty International and the Chesapeake Climate Action Network, according to documents obtained through an ACLU public records request.
A document leaked from the Virginia Fusion Center cited various historically Black colleges and universities that were seen as potential “radicalization nodes” for terrorists. 
In Texas, a “Prevention Awareness Bulletin” leaked from a state fusion center flagged former Georgia Congresswoman Cynthia McKinney and former U.S. Attorney General Ramsey Clark for surveillance, as well as groups such as the Council on American Islamic Relations, ANSWER and the International Action Center.
In Missouri, a report on the “modern militia movement” was leaked from the Missouri Information Analysis Center, the state’s fusion center. It stated that militia members are “usually supporters” of presidential candidates Ron Paul, Chuck Baldwin and Bob Barr, and instructed the Missouri police to be on the look out for people displaying bumper stickers and paraphernalia associated with the Constitutional, Campaign for Liberty, and Libertarian parties. 
In New York, the Department of Defense (DOD) conducted surveillance on protests planned by the War Resisters League near New York City recruiting stations. Documents from the DOD Talon database warned that the League was advocating “Gandhian nonviolence.” 
Just two weeks ago, documents leaked from the Pennsylvania Office of Homeland Security showed that environmental groups opposed to gas drilling, anti-war groups, animal rights activists, a gay and lesbian festival, black power “radicals” and Muslims observing Ramadan all have had their meetings monitored and recorded in intelligence bulletins.
In Georgia, peaceful anti-war activity and other protests have been under regular surveillance, according to documents obtained by the ACLU. Caitlin Childs, a vegetarian activist, was arrested after a peaceful protest outside the Honey Baked Ham store in Dekalb County for writing down the license plate number of the car belonging to a federal agent who had been photographing the day-long demonstration. 
Here in Massachusetts, a scathing audit recently released by the Massachusetts state Auditor A. Joseph DeNucci, found that police from communities across the state have repeatedly tapped into the state's criminal records system to improperly access information on celebrities and high-profile citizens, such as actor Matt Damon, singer James Taylor and football star Tom Brady. The year-long review depicted a system accessed by users “without any apparent work-related justification.” It is unclear how many other private citizens might also have had their privacy violated by these improper searches. 
Despite all of this domestic spying activity, it’s important to remember that this kind of data-profiling hasn’t led to catching the bad guys. 
Indeed, it was the work of local passersby that thwarted both the so-called “underwear” bombing attempt and the attempted Times Square bombing – neither alleged terrorist was stopped by surveillance centers or data collection. To the contrary, law enforcement officials missed credible reports of imminent terrorist attacks…there was so much hay in the haystack that they simply missed the needle.
Nonetheless, having built this secret surveillance bureaucracy, we now have to feed it. Otherwise, how do we justify wasting billions of tax dollars that might otherwise be invested in education, health care, or reducing our dependence on foreign oil? 
II. The Fallacy of the “I have nothing to hide” argument.
Henry Steele Comager wrote in his book, Freedom, Loyalty, Dissent, that “The greatest danger we face is not any particular kind of thought. The greatest danger we face is absence of thought.” 
The creation of vast digital dossiers on every individual fosters a civil liberties climate in which we never know whether our speech is being monitored…we are fast approaching a world in which we must, instead, act and speak at all times as if the government may be listening. 
The result does more than simply chill political speech. It constitutes a wholesale attack on our right to a sphere of personal autonomy. 
A total surveillance society undermines our most fundamental liberty interest to express ourselves privately – and to know who is listening. 
Freedom of expression means nothing if we lack a fundamental realm of privacy in which to think and dream, in which to test new – even radical – ideas without fear that the government is reading our emails, listening to our phone calls, or tracking our movement. 
The First Amendment means nothing if we lose the zone of personal freedom necessary to worship the gods of our choosing, or not…to decide who we will love…and to explore, privately, in our writings, our conversations and our art, the revolutionary ideals that we are talking about here today. 
Professor Daniel Solove of George Washington Law School accurately describes this state of affairs as akin to being the character in Franz Kafka’s book, The Trial. 
The true danger is not simply an Orwellian Big Brother …or even an Orwellian little brother …who is watching us but, rather, the use of secret databases and secret courts comprised of faceless bureaucrats who have the ability secretly to scrutinize and undermine our lives without our knowledge, leaving us with no ability to fight back. 
It’s not just a literary metaphor. Consider the case of Professor Walter F. Murphy, one of the nation’s foremost constitutional scholars, emeritus of Princeton University and decorated former marine. When denied a boarding pass at Newark because he was on a Terrorist Watch List, Professor Murphy reported that he was asked by an airline employee: 'Have you been in any peace marches? We ban a lot of people from flying because of that.” 
“I explained,” said Murphy, “that I had not so marched but had, in September 2006, given a lecture at Princeton, televised and put on the web, highly critical of George Bush for his many violations of the constitution.” “That'll do it,” the man said.”
As Henry Steele Commager warned: “The greatest danger we face is not any particular kind of thought. The greatest danger we face is absence of thought.” 
III. What we can do about it: because privacy can't protect itself.
As Americans – and especially as residents of Massachusetts – we are uniquely empowered with both our federal constitution and the world’s oldest written state constitution to take action to dismantle the surveillance-industrial complex and to restore a system of checks-and-balances.
In the coming year, we at the ACLU need your help to do this — on three fronts: Federal, state, and local. 
Federal: Pass reform of the Federal Electronic Communications Privacy Act 
The Electronic Communications Privacy Act (ECPA), the federal law that is supposed to be protecting our digital privacy, was last updated in 1986. A lot has changed since then – why hasn’t electronic privacy law? It’s time for Congress to modernize ECPA to keep pace with our modern digital world. 
Protect Personal Information. The government shouldn't be able to get personal electronic information (like email, online documents, and search records) without a warrant, just like they can't enter a home and take personal papers without a warrant.
Safeguard Location Information. Cell phones transmit location, but they should not be used as a personal tracking device without a warrant.
Prohibit Use of Illegally Obtained Information. If the government breaks the law, shouldn’t there be consequences? Law enforcement shouldn’t be able to continue to use electronic information obtained illegally.
Require Transparency Around Information Collection. The law should require notice and regular reporting so individuals know when and why companies turn over private information to the government. 
At the State Level: Legislation to put Sunlight on Surveillance
Data Profiling Prevention Act: 
This bill will provide oversight of fusion centers and other domestic spying operations in the Commonwealth by:
o Prohibiting law enforcement collection of information about our political and religious views, associations or activities – unless that information relates directly to a criminal investigation or reasonable suspicion of criminal conduct;
o Establishes data integrity and safeguards to ensure that information is disseminated on a “need to know” basis; and
o Creates transparency and oversight by requiring routine audits and by permitting individuals to learn what information is being kept about him or her.
Reform the Massachusetts Public Records Law
The Massachusetts Public Records Law hasn’t been undated since 1973, and so doesn’t cover electronic communications, email archives, and databases – forcing town clerks to make hard copies of everything. As a result, the Massachusetts public records system is hampered by budgetary constraints on local and state government, high costs for requestors to receive public records, and responses to requests that routinely and substantially exceed statutory timelines. 
We are proposing three bills to reform the system and increase freedom of information. They will:
1. Ensure that records kept in electronic form are accessible to the public in usable electronic form.
2. Increase access to public information by reducing fees and allowing courts to award attorneys’ fees when record-holders refuse to produce public records or obstruct production with unreasonable delays.
3. Apply the public records law to the administrative functions of the courts, including probation.
Locally: We need you to question authority. 
When you hear about government surveillance – particularly homeland security funding of your local police departments, putting up cameras in your schools and your towns…you need to ask questions. 
Who is collecting the information and why? 
How is it being stored?
What steps are being taken to audit this collection and prevent it from being misused? 
Our long-term objective must be to change and shape public awareness of, and attitudes about, government surveillance, corporate data mining, and privacy.
An engaged and coordinated constituency of privacy advocates and activists is a necessary component if we are to dismantle the growing surveillance-industrial complex. 
As a membership organization – working in the courts, in Congress and the state house, and in communities around the Commonwealth and around the nation — the ACLU is uniquely position to lead this effort. Please sign up today — to find out how you can be part of this movement – and how you can make a difference on this campus and in your community.
We have some powerful weapons in our arsenal – namely, the Constitution and Bill of Rights…and the ability to pass laws to protect our privacy…and, yes, new technology that we can deploy in support of privacy and freedom. 
“The Bill of Rights was not written to protect governments from trouble,” Commager wrote. “It was written precisely to give the people the constitutional means to cause trouble for governments they no longer trusted.”
So, let’s use the Bill of Right and other tools at our disposal to cause some trouble…. because Privacy can’t protect itself.

© 2021 ACLU of Massachusetts.