Privacy SOS

by Nancy Murray | December 17, 2010

I want to thank the organizers of this event for recognizing the urgency of the moment, and the need to build a powerful solidarity movement against the recent FBI raids that have to date resulted in subpoenas being issued to 19 activists. 
This evening I will do four things: first, review the significance of the Supreme Court case that is implicated in the raids; second, to talk about changes in FBI powers and surveillance since 9/11 which makes us all suspects, whether or not we have visited a country associated with a group on the State Department list of “foreign terrorist organizations;” third, offer advice about what you should do if the FBI comes to your door and finally, say something about how we can and must fight back. 
First, the Supreme Court ruling last June in the case of Holder v. the Humanitarian Law Project. As you probably know, this case was a test of the “material support to terrorism” provision of the 1996 Anti Terrorism and Effective Death Penalty Act, which was later enhanced by the USA PATRIOT Act. The 6-3 decision carved out a frightening new exception to the First Amendment. 
Basically it says if you have carried out some kind of activity that was somehow “coordinated” with a group that has been listed by the Secretary of State as a terrorist organization, then you can be prosecuted for giving “material support” to terrorists. I have brought copies of the list of the 47 groups – which include Hezbollah, the Popular Front for the Liberation of Palestine, Hamas and the Revolutionary Armed Forces of Colombia, known as the FARC. That activity can be wholly peaceful, have peacemaking as its goal, and involve nothing more than words.
This ruling is not supposed to extend to “independent advocacy”. It is not clear where the line is drawn separating individual advocacy from criminal coordination in certain cases, such as solidarity work with Gaza. The goal of the six justices in the majority appears to be the total isolation of those groups the US lists as terrorists, ensuring that their voice cannot be heard. So there may be no more op eds by Hamas leaders in the New York Times. If the African National Congress were still on the State Department’s terrorism list – it was taken off by an Act of Congress as a 90th birthday present to Nelson Mandela – then, theoretically at any rate, anyone from this country who worked with Mandela, or enabled Mandela’s voice to be heard could have faced criminal charges resulting in 15 years in prison and a $50,000 fine.
Let me now say something about how post 9/11 changes in FBI powers and the structure of surveillance relate to the recent raids. You are no doubt familiar with the USA PATRIOT Act and the way it has made it easier for the government to carry out surveillance of our telephones, emails and other internet activity, and carry out secret sneak and peek searches of homes and offices.
To just take one provision of the Patriot Act – section 505 – this allows the FBI to use “national security letters” which are issued without any judicial oversight to seize records from universities, internet service providers credit card companies and individuals – and recipients are gagged – face long jail time and fines if they talk about getting such a letter. At least 30,000 such letters have been issued ANNUALLY since the PATRIOT Act was passed – with the information that is seized being dumped in huge databases that now contain some two billion records that are mined for “suspicious activity.”
There have been several Inspector General reports about the misuse of NSLs, and back in 2005, one investigative journalist (Doug Thompson) has unearthed evidence that they were being used to build a database of 10,000 political enemies managed by Karl Rove. 
In addition to the new powers given the FBI by the Patriot Act and other legislation, changes in FBI guidelines adopted in 2002 and again in December 2008 gave FBI agents the power to monitor and infiltrate groups engaged in protected First Amendment activity without having suspicion of any wrongdoing AND to use ethnicity and religion as a factor in opening investigations.
In a recent report into the surveillance of the Thomas Merton Center in Pittsburgh and other groups, the Inspector General found that the FBI had “little or no basis” for spying on some advocacy activity, and had lied to cover up this fact in the case of the Merton Center. However, the threshold for initiating surveillance is now so low, that we are pretty much back in the bad old days of J. Edgar Hoover and COINTELPRO in terms of what the FBI can and can’t do.
But the FBI acting on its own is just part of the problem we now face. We describe the new surveillance system that has been erected across the nation in our backgrounder, “When we are all suspects.” 
Who here remembers John Poindexter’s Total Information Awareness? Based at the Defense Department’s Defense Advanced Research Projects Agency or DARPA, the existence of TIA was made public in late 2002. The idea behind it was to use powerful computers to search all possible commercial and government databases, in order to detect hidden patterns indicating possible terrorist activity.
As you may recall, an outcry across the political spectrum stopped this Orwellian program in its tracks – or so we were made to believe. While Congress did strike funding for the DARPA program in 2004, it transferred it to the NSA, and now the total information awareness approach to “fighting terrorism” has spread to numerous government programs and agencies.
The notion that the nation can be made safe by trawling through databases in search of “suspicious patterns” was vigorously debunked by an exhaustive multi year study carried out by the National Research Council, published in October 2008. The report says that finding terrorists through data mining “is neither feasible as an objective nor desirable” and that it will result in “ordinary law abiding citizens and businesses” being wrongly treated as suspects. 
This is the world we are inhabiting today. The definition of intelligence work has dramatically expanded to include the broad collection of information about everyday activities in hopes of detecting (and preventing) future behavior. Our telephone calls and e-mails, web browsing-activity, financial records, credit reports, library records, and peaceful political and religious activity are swelling the mountain of data that is being mined for suspicious patterns and associations.
Has anyone seen the film “Minority Report” which features a Department of pre crime where psychic “precogs” discern which “criminals” to pursue before they commit crimes? Computer algorithms are our precogs, as data mining techniques like “link analysis” are used to probe a variety of databases and weave webs of guilt by association. 
The hubs of this emerging domestic intelligence system are the nation’s 72 “fusion centers” where information deposited by federal, state, local law enforcement, and private entities in a variety of databases is analyzed and widely shared among agencies in order to identify individuals for closer scrutiny. Fusion centers – including the two in Massachusetts – were set up to focus on “terrorism.” But most have expanded their mission to include “all crimes” and “all hazards”.
Spurred by the availability of federal grants, a concept of policing (“predictive policing”) has emerged that is no longer focused on solving crimes but on collecting evidence of crimes that may be about to be committed. Around the country some 800,000 police officers are now filing reports about “suspicious behaviors” that create a stream of “intelligence” about a range of every day activities such as taking pictures of infrastructure, taking notes, and espousing “extremist views.” Each day over a thousand “suspicious activity” reports from police, private entities and public tips lines are sent to fusion centers and the parallel system maintained by the FBI , the eGuardian information sharing system. 
This aggressive collection of personal data – much of it wholly inaccurate – represents an unprecedented government intrusion into our lives. All sorts of government and private agencies are now involved in the surveillance business. Through leaked information, we are discovering that that a whole range of groups and individuals have been monitored and labeled as potential terrorists – including environmental groups, and anti-war groups – see handout.
Groups that have been targeted include Code Pink, ANSWER, American Friends Service Committee, Amnesty International, and the ACLU, while historically black Colleges have been deemed potential “radicalization nodes” for terrorists. When “civil activists and extremist groups” get lumped together in a surveillance database and federal dollars drive the hunt for any sign of so-called suspicious activity, the First Amendment is on very shaky ground. 
So how does this relate to the recent FBI raids on activists around the country? This surveillance monster I have described needs to be fed – it needs a constant supply of data to weave the net of suspicion and find those patterns indicating “future terrorist activity.” In the age of total information awareness, the extent of the data grab makes us we all potential suspects – but some people are more suspect than others, given their interests and associations.
Just as the post 9/11 round ups and subsequent operations targeting Muslims and Middle Easterners such as the Special Registration Program were undertaken to fill the information vacuum, and recruit informers, so too are the operations aimed at solidarity activists. If you have ties to the Middle East, or if you are a known critic of US policy, the FBI may decide to seize the information you possess from your computer, your office, your address book and your files in hopes that it will help them “connect the dots” and implicate others. And they will try to intimidate you into giving more by summoning you before a grand jury. 
So what should you do if you are visited by the FBI? Two handouts – most important thing to stress: don’t talk to them! It is not a crime to remain silent. Tell them you will want to consult a lawyer and ask them to leave a card and you will get back to them. 5 – 8 years for lying to a federal agent. You are not required to let an officer in your home without a warrant – ask to see it if he says he has one. If he pushes his way in without a warrant, say loudly you do not consent to a search. If he says he has a warrant for your arrest, ask to see that too. Even if you are under arrest, you do not have to answer questions until you consult an attorney. 
Finally, how can activists push back? We need to demonstrate our solidarity, and show that we will not be cowed into silence through protests, Congressional visits, local resolutions, events like this one, and creative use of the media. And we need to educate ourselves about the secretive surveillance web that threatens to entrap us.
The ACLU of Massachusetts has drafted a bill that calls for effective oversight to ensure that information about First Amendment activity is not deposited in fusion centers and widely shared. I hope you will help us propel this legislation forward in the year ahead. Together we must organize to roll back the looming national security surveillance state – thank you!

© 2021 ACLU of Massachusetts.