Private citizens are going public like never before. But that doesn’t mean they’re OK with more government snooping.
Civil liberties groups and public officials have consistently aired concerns about privacy rights and government secrecy since Congress passed the Patriot Act shortly after 9/11. A decade later, these concerns are compounded by the fact that the landmark surveillance law has not kept up with changing technologies.
President Obama renewed the Patriot Act in May (see inset) amid charges from members of Congress that the government is using a secret interpretation of the law. “It’s almost as if there are two Patriot Acts, and many members of Congress haven’t even read the one that matters,” said Sen. Ron Wyden, D-Ore., before the vote. “When Americans find out how the law is being used, they will be stunned and they will be angry.”
President Obama, a former detractor of the Patriot Act, signed a four-year extension on the bill’s remaining “sunset” provisions on May 26. The three Patriot provisions will be in force until June 2015.
Provision 215 — The provision’s vague wording has raised concerns from members of the Senate Intelligence Committee. The government can obtain all “tangible things” relevant to a national security investigation: driver’s license records, hotel records, car rental records, apartment leasing records, credit card records, medical records, and library records. A Department of Justice audit revealed the government more than quadrupled its use of “215 orders” in 2010 from the previous year.
Roving Wiretaps — Intelligence officials can track a terrorism suspect instead of a particular phone number or location — and can follow that person from cell phone to cell phone without getting a new warrant. Such laws have been on the books since 1986 for criminal cases. Permission for terrorism cases only comes if the government can prove that the subject is using “counterintelligence” methods to evade a surveillance. The DOJ reports that intelligence agencies have made an average of 22 such requests a year since 2001.
Lone Wolf — A never-used provision provides the power to survey and physically search non-citizens who are engaged or preparing to engage in acts of international terrorism. Agencies need not show probable cause that suspects are acting on behalf of a foreign entity.
What we do know about the existing law is daunting, American Civil Liberties Union Legislative Counsel Michelle Richardson said. “The law permits government to conduct suspicionless surveillance,” she said. In 2008, warrantless wiretapping became law and phone companies were given legal immunity after sharing information. The government can now obtain year-long court orders to tap into the international conversations and correspondence of U.S. citizens.
Telecommunications giants have cooperated with domestic and international surveillance efforts, sharing consumer data when the government requests it. In August, the Electronic Frontier Foundation pressed the 9th Circuit Court of Appeals to uphold lawsuits filed against AT&T and the National Security Agency between 2006 and 2008. The nonprofit advocacy group for free speech and privacy rights says the government initially quashed the cases, claiming threats to state security.
Hussein Ibish, former communications director for the Arab-American Anti-Discrimination Committee explained that the security culture has become one of preventative measures. “They used to go after perpetrators,” says Ibish. “The current model is: investigate first, discover a plot and thwart it — so the crime doesn’t occur.”
Eighty-two million Americans own a smartphone as of July 2011, and it’s unclear exactly how and if telecommunications companies and the government are accessing the information on these devices.
When and how government can ask telecommunications companies for “geolocation” data derived from mobile devices has been the subject of differing court opinions. The number of Americans that have had their locations tracked is not made available. National Security Agency lawyer Matthew Olsen said “there are certain circumstances where that authority may exist.”
Wyden, a longstanding member of the Intelligence Committee, has proposed GPS legislation, also known as the Geolocation Privacy and Surveillance Act. The law would require the government to obtain warrants before accessing location information.
Microsoft is facing a lawsuit in Seattle district court after complaints that its Windows 7 mobile devices collect location data as soon as users open the camera application. Rivals Apple and Google have appeared before the Senate to defend their privacy protection policy. All three telecommunications giants insist that location information is only collected when a user expressly consents to that action.
The wall comes down
The Patriot Act ushered in unprecedented changes in counterterrorism strategy. In July 2002, the DOJ and FBI began coordinating efforts. Eighty-four Joint Terrorism Task Forces sprung up across the country. The CIA and FBI started working together and connected intelligence efforts by federal, state and local law enforcement agencies.
With state and local police now in the business of counterterrorism, surveillance has become as routine as a traffic stop. For three years, the Michigan ACLU has been dissecting details about the state police purchase and use of devices that cull and collect data from smartphones. The police have not complied with a Freedom of Information Act request, and last spring claimed that the machines are used only with a warrant and in special cases.
American University Law Professor Stephen Vladeck said a decade of the Patriot Act has solidified a new normal around surveillance and government transparency that has hindered Americans’ ability to understand the full scope of changes. “Say what you will about the merits of counterterrorism policies,” he said. “But it would help to at least know what they are.”