Destroying the Right to Be Left Alone

The NSA Isn’t the Only Government Agency Exploiting Technology to Make Privacy Obsolete – Published on ZNet (first on TomDispatch), by Matthew Harwood and Christopher Calabrese, September 23, 2013.

For at least the last six years, government agents have been exploiting an AT&T database filled with the records of billions of American phone calls from as far back as 1987. The rationale behind this dragnet intrusion, codenamed Hemisphere, is to find suspicious links between people with “burner” phones (prepaid mobile phones easy to buy, use, and quickly dispose of), which are popular with drug dealers.  

The secret information gleaned from this relationship with the telecommunications giant has been used to convict Americans of various crimes, all without the defendants or the courts having any idea how the feds stumbled upon them in the first place. The program is so secret, so powerful, and so alarming that agents “are instructed to never refer to Hemisphere in any official document,” according to a recently released government PowerPoint slide.

You’re probably assuming that we’re talking about another blanket National Security Agency (NSA) surveillance program focused on the communications of innocent Americans, as revealed by the whistleblower Edward Snowden. We could be, but we’re not. We’re talking about a program of the Drug Enforcement Administration (DEA), a domestic law enforcement agency … //

… Nowhere to Hide:

  • “You are aware of the fact that somebody can know where you are at all times, because you carry a mobile device, even if that mobile device is turned off,” the CIA’s Hunt explained to the audience at that tech conference. “You know this, I hope? Yes? Well, you should.”
  • You have to hand it to Hunt; his talk wasn’t your typical stale government presentation. At times, he sounded like Big Brother with a grin.
  • And it’s true: the smartphone in your pocket is a tracking device that also happens to allow you to make calls, read email, and tweet. Several times every minute, your mobile phone lets your cell-phone provider know where you are, producing a detail-rich history of where you have been for months, if not years, on end. GPS-enabled applications do the same. Unfortunately, there’s no way to tell for sure how long the companies hang onto such location data because they won’t disclose that information.
  • We do know, however, that law enforcement regularly feasts on these meaty databases, easily obtaining a person’s location history and other subscriber information. All that’s needed to allow the police to know someone’s whereabouts over an extended period is an officer’s word to a judge that the records sought would aid an ongoing investigation. Judges overwhelmingly comply with such police requests, forcing companies to turn over their customers’ location data. The reason behind this is a familiar one: law enforcement argues that the public has no reasonable expectation of privacy because location data is freely shared with service or app providers. Customers, the argument goes, have already waived their privacy rights by voluntarily choosing to use their mobile phone or app.
  • Police also use cell-phone signals and GPS-enabled devices to track people in real time. Not surprisingly, there is relatively little clarity about when police do this, thanks in part to purposeful obfuscation by the government. Since 2007, the Department of Justice has recommended that its U.S. attorneys get a warrant for real-time location tracking using GPS and cell signals transmitted by suspects’ phones. But such “recommendations” aren’t considered binding, so many U.S. Attorneys simply ignore them.
  • The Supreme Court has begun to weigh in but the issue is far from settled. In United States v. Jones, the justices ruled that, when officers attach a GPS tracking device to a car to monitor a suspect’s movements, the police are indeed conducting a “search” under the Fourth Amendment. The court, however, stopped there, deciding not to rule on whether the use of tracking devices was unreasonable without a judge’s say so.
  • In response to that incomplete ruling, the Justice Department drew up two post-Jones memos establishing guidelines for its agents and prosecutors regarding location-tracking technology. When the American Civil Liberties Union (ACLU) filed a Freedom of Information Act request for those guidelines, the Justice Department handed over all 111 pages, every one of them redacted — an informational blackout.
  • The message couldn’t be any clearer: the FBI doesn’t believe Americans deserve to know when they can and cannot legally be tracked. Supreme Court Justice Sonia Sotomayor drove home what’s at stake in her concurring decision in the Jones case. “Awareness that the Government may be watching chills associational and expressive freedoms,” she wrote. “And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse… [and] may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’”
  • The ability of police to secretly track people with little or no oversight is a power once only associated with odious police states overseas. Law enforcement agencies in the United States, however, do this regularly and enthusiastically, and they do their best as well to ensure that no barriers will be thrown in their way in the near future.

Sting(ray) Operations: … //

… The Unknown Unknowns:

  • Note that we’ve only begun a tour through the ways in which American privacy is currently under assault by our own government. Other examples abound. There is E-Verify’s proposed giant “right-to-work” list of everyone eligible to work in the United States. There are law enforcement agencies that actively monitor social media sites like Facebook and Twitter. There are the Department of Homeland Security’s research and development efforts to create cameras armed with almost omniscient facial recognition technology, not to speak of passports issued withradio frequency identification technology. There are networked surveillance camera feeds that flow into government systems. There is NSA surveillance data that’s finding its way into domestic drug investigations, which is then hidden by the DEA from defense lawyers, prosecutors, and the courts to ensure the surveillance data stream continues unchallenged.
  • And here’s the thing: this is only what we know about. As former Defense Secretary Donald Rumsfeld once put it, “there are also unknown unknowns — there are things we do not know we don’t know.” It would be the height of naïveté to believe that government organizations across this country — from the federal to the municipal level — aren’t engaged in other secret and shocking privacy intrusions that have yet to be revealed to us. If the last few months have taught us anything, it should be that we are in a world of unknown unknowns.
  • Today, government agencies act as if they deserve the benefit of the doubt as they secretly do things ripped from the pages of science-fiction novels. Once upon a time, that’s not how things were to run in a land where people prized their right to be let alone and government of the people, by the people, and for the people was supposed to operate in the open. The government understands this perfectly well: Why else would its law enforcement agents and officers regularly go to remarkable lengths, sometimes at remarkable cost, to conceal their actions from the rest of us and the legal system that is supposed to oversee their acts? Which is why whistleblowers like Edward Snowden are so important: they mount the last line of defense when the powers-that-be get too accustomed to operating in the dark.
  • Without our very own Snowdens working in the county sheriff’s departments or big city police departments or behemoth federal bureaucracies, especially with the world of newspapers capsizing, the unknowns are ever more likely to stay unknown, while what little privacy we have left vanishes.

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(Christopher Calabrese is a legislative counsel for privacy-related issues for the ACLU in Washington. He has testified before Congress and appeared in many media outlets, including CBS Evening News, the New York Times, and the Washington Post. Follow him on Twitter at @CRCalabrese.
Matthew Harwood works for the ACLU in Washington as a media strategist. His work has been published by the American Conservative, Columbia Journalism Review, the Guardian, Guernica, Reason, Salon, Truthout, TomDispatch, and the Washington Monthly. He also regularly reviews books for the Future of Freedom Foundation. Follow him on Twitter at @mharwood31
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Links:

The Act of Killing, on truthdig, by Chris Hedges, Sept 23, 2013;

Half Ounce of Pot Gets Louisiana Man Twenty Years in Prison, on Dissident Voice, by Bill Quigley, September 23, 2013:
While Colorado and Washington have de-criminalized recreational use of marijuana and twenty states allow use for medical purposes, a Louisiana man was sentenced to twenty years in prison in New Orleans criminal court for possessing 15 grams, .529 of an ounce, of marijuana …;

Obama’s Politics of War and US Public Opinion: The Great Divergence, on the James Petras website, by James Petras, Sept 5, 2013;

Mexico: The Political Cost of Privatization of Oil and Electricity, on the James Petras website, by James Petras, Sept 8, 2013:

(see also: Welcome to our new blog: politics for the 99%).

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