Government Surveillance Grows Unchecked

Stan Ward

Stan Ward

March 31, 2017

A ruckus surrounding Russia currently rages in Washington, over the country’s possible interference in the US elections, and that then-candidate Donald Trump may have somehow colluded with it to defeat Hillary Clinton.

This political circus is not as worrisome as revelations swirling around regarding surveillance of the candidate (which likely occurred). It should sound alarm bells for all privacy-loving citizens because of its scope and implications.

Out of the wreckage of this spectacle, a new phrase has emerged, which should send shivers down the spine of civil libertarians. The term “incidental collection” sounds innocuous enough, but don’t be deceived. It spells peril for privacy, and it is the subject of a book by Jennifer Stisa Granick, director of civil liberties at Stanford University’s Center for the Internet and Society.

Also highlighted is the odious policy, used primarily by the FBI, with the ominous moniker of “backdoor search loophole.” The book is entitled American Spies: Modern Surveillance, Why You Should Care and What To Do About It. It is bound to become required reading for privacy advocates and civil libertarians.

In the climate that exists in Washington today, the prevailing wisdom is that it this surveillance fiasco is only related to the political bigwigs. However, the substance of my article emanates from an interview with Granick, which warns about the surveillance dangers to all, as this new chapter in surveillance unfolds.

It is timely for another reason: the continuance of key government surveillance programs that are rapidly approaching their expiration date. Thus, the debate over their renewal is percolating.

Two especially irksome government surveillance programs, PRISM and Upstream, can surveil Americans’ communications with foreigners from inside the United States – without first going to a judge and getting a search warrant.

PRISM involves obtaining the information from major internet providers such as Google, Apple, Yahoo, and Skype. Upstream involves scanning the internet for associations with foreign targets. Neither, Granick points out, are counterterrorism programs, yet these controversial programs amass massive amounts of private data, which ultimately ends up in government databases.

As a result of it being there, the FBI can then sift through data about US persons without a warrant or need to show “probable cause.” This is called the “backdoor search loophole.” They can use this information to learn far more about a citizen than that citizen might like. The information gleaned could, for example, expose religious beliefs, contacts with the press, and sexual behaviors and preferences.

All this “incidental collection” comes to law enforcement without the requirement of a warrant. As alarming as this may be, there is even more to become agitated about.

When Granick is asked, “What consequences do these practices have for privacy in the United States?” her answer is not subtle or succinct. Contemplate the rather benign term “incidental” while considering her reply:

“For example, if you are in a conversation with many others in an Internet chat room or social network, and only one of those others is foreign, your and everyone else’s communications are considered fair game for foreign intelligence surveillance. Just one foreign target can justify surveillance of tens or hundreds of other people, some of whom may be U.S. persons on U.S. soil.”

Pretty scary, right?

In all this, the absence of oversight is vexing. Yet again, this is the result of the “government creep,” on which I’ve written much. The specter of government mission creep morphs into the unwieldy monster which exists today. The little inadequate oversight that exists is purely internal oversight. It is inherently compromised because it is done by government employees, who ultimately report to the same bosses who are ordering and conducting the surveillance.

It would be comical, if it were not such a crucial element in the abuse of power. It prompts the question: Where are the judges? While not entirely absent, judicial oversight is insufficient.

Civilian courts are powerless, and thus useless. On this point, Granick expands:

The Foreign Intelligence Surveillance Court (FISC) is supposed to be a check on spying, but it has never discovered surveillance abuses on its own initiative, and when it has found out about legal surveillance, its judges have gone out of their way to ensure that the practices would continue.”

It doesn’t appear that the change to a Trump administration will bode any better for privacy than under Bush or Obama. Promising to be tough on domestic crime, initiatives directly outside the borders have taken shape. Already, American spies have been ordered to identify undocumented immigrants, create a Muslim registry, identify people hostile to the administration, and more.

Privacy advocates and civil libertarians can only hope that the vociferous Democratic resistance to date will translate to votes in Congress against extending these repugnant programs, as well as others which are sure to come down the pike during this Republican reign.

Image credit: From cover of American Spies: Modern Surveillance, Why You Should Care, and What to Do About It by Jennifer Stisa Granick/Cambridge University Press.
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