YOU are the
editor of a local newspaper. A reporter on your staff comes to you having
obtained (by legal means) one of the following:
• Police records of arrests for drunken driving;
• The personal details of all the employees of local clinics that perform
abortions;
• The subscriber list of a survivalist magazine with pronounced racist
overtones;
• The names and addresses of food stamp recipients in your community;
• The donors to a group that promotes L.G.B.T. rights;
• The names of husbands accused of infidelity in divorce suits, along with the
identities of the alleged lovers;
• Addresses of homes where pit bulls are kept.
The reporter proposes to publish the names and home addresses and map them on a
large graphic, all part of an article on “The
[drunks/abortionists/racists/poor/gays/cheats/scary dogs]
next door.”
Some of these lists might strike you as fair game. (Many community newspapers
publish D.U.I. arrests, presumably to shame the accused into driving sober.)
Others probably make you uncomfortable or indignant. You might find that the
tricky part is articulating why: what is the boundary between a public service
and an invasion of privacy?
My hypothetical editor’s choice is inspired, of course, by an unhypothetical
event: the decision by The Journal News in White Plains to map the names and
addresses of 33,614 handgun permit holders in two surrounding counties, for a
project called “The gun owner next door.” I’ll return to that decision, but the
striking thing was the volume and venom of the reader backlash: thousands of
comments — and not only from gun owners — overwhelmingly outraged, some of them
suggesting that Journal News journalists deserved to have their identities
stolen, their homes burgled, their children taunted or, predictably, to be shot.
When it comes to privacy, we are all hypocrites. We howl when a newspaper
publishes public records about personal behavior. At the same time, we are
acquiescing in a much more sweeping erosion of our privacy — government
surveillance, corporate data-mining, political microtargeting, hacker invasions
— with no comparable outpouring of protest. As a society we have no coherent
view of what information is worth defending and how to defend it.
When our privacy is invaded in the name of national security, we — and our
elected representatives, afraid to be thought soft — generally go along quietly.
Our complacency is reinforced by a popular culture that has forsaken Orwell’s
nightmares for a benign view of authority. In many of my own guilty-pleasure
television favorites — “The Wire,” the British thriller series “MI-5,” the
Danish original of “The Killing,” the addictive “Homeland” — surveillance is
what the good guys do, and it saves the day.
Meanwhile, as Al Qaeda wanes, our surveillance state continues to grow more
intrusive, with woefully little oversight or accountability.
Last month Julia Angwin of The Wall Street Journal disclosed that Attorney
General Eric Holder had authorized the National Counterterrorism Center to copy
and examine pretty much any information the government has collected about you.
In the past, the agency couldn’t store information about ordinary Americans
unless they were suspects in or party to a specific investigation. Under the new
orders, flight records, lists of Americans hosting foreign-exchange students,
financial records of people seeking federally backed mortgages, health records
of patients at veterans’ hospitals — pick a database, and this obscure agency
has permission to study it for patterns that ostensibly predict terrorist
behavior, and to share it with foreign governments, whether or not you are
suspected of any wrongdoing. The new rules were subjected to robust official
debate — all behind closed doors.
Likewise, while we were all distracted by the dance on the fiscal cliff, the
112th Congress in its final days whisked through a renewal of the law that
governs eavesdropping by American intelligence agencies on Americans’ phone
calls and e-mail traffic. A couple of senators made modest attempts to hold the
eavesdroppers more accountable by, for example, disclosing the number of
law-abiding citizens whose communications have been intercepted. Their efforts
were voted down.
“The Obama administration’s position on privacy is basically ‘Trust us, we’re
good guys,’ ” said Daniel Solove of George Washington University, whose book
“Nothing to Hide” challenges the myth that law-abiding citizens have nothing to
fear from government snooping. “That’s exactly what Bush said. And it’s also the
same thing that any despot says. We shouldn’t have to trust.”
Rigorous, independent oversight, he added, not only protects against abuses but
also helps assure that what we do in the name of security actually works. But it
doesn’t happen if we don’t demand it.
The government, of course, is not the only — not even the most aggressive —
invader. You can take your pick of the ways Facebook and Google are monetizing
you by serving up your personal profile and browsing habits to advertisers for
profit. Some of this feels harmless, or even useful — why shouldn’t my mobile
device serve me ads tailored to my interests? But some of it is flat-out creepy.
One of the more obnoxious trends is the custom-targeting of that irresistibly
vulnerable market, our children.
When our personal information is exploited this way, we may grumble, or we may
seek the largely false comfort of tweaking our privacy settings, but we feel
helpless before the mystifying rush of technology.
You would think the one sort of invasion just about everyone deplores was
hacking. But even there we are ambivalent. When Rupert Murdoch’s tabloids were
caught pillaging the voice mail of celebrities, the public response was muted;
when it turned out that they had hacked the phone of a 13-year-old murder
victim, the pitchforks and torches came out.
Or take the Steubenville case. In Steubenville, Ohio, authorities charged two
members of the high school football team with the repeated rape of a
passed-out-drunk 16-year-old, but did not charge the many others who allegedly
cheered them on and made videos. So the online activists of Anonymous took it
upon themselves to hack into private accounts, recover deleted and incriminating
videos, and make them public. Amanda Marcotte wrestled with the moral dilemma on
Slate: “By stepping in and holding people accountable, Anonymous stands a very
good chance of taking action that actually does something to stop rape. But:
This type of online vigilante justice is potentially invading the privacy of or
defaming innocent Steubenville residents, and even if everything published is
true, there are very serious legal limits to the Anonymous strategy.”
As a journalist, I’m more often on the side of the invaders than the invaded. I
cherish the freedom to publish. But the freedom to publish includes the freedom
not to publish when the cost outweighs the benefit.
Which brings me back to The Journal News and its gun project. I sympathize with
the paper’s effort to dramatize the commonplace reality of gun ownership at a
time when the subject is so sadly on our minds. I don’t buy the gun owners’
assertion that the disclosure is an invitation to burglars in search of
firearms; on the contrary, the publicity sends criminals the same message as
those front-door notices of your home alarm system: Try next door. It’s also
conceivable that the attention will prompt some owners to lock up unsecured
weapons.
But when you are going to make a sizable population of law-abiding citizens feel
violated, you have to ask yourself, what is the offsetting gain? In this case, I
think, not much. The information The Journal News provided its readers is so far
from complete as to be misleading. The public records identify only legal
handguns. They tell you nothing about the neighbor who has an equally legal and
equally lethal rifle or shotgun, let alone an illegal weapon. The publication
has not spurred a healthy debate; it has merely escalated a shouting match, and
given the N.R.A. a new rallying cry. The outcry may even provoke state
legislatures to withdraw gun databases from public records, so they will not be
available when they might really be useful. It’s a close call, but I’d have
found a different way to make the point.
December
28, 2012
The New York Times
By ROBERT PEAR
WASHINGTON
— Congress gave final approval on Friday to a bill extending the government’s
power to intercept electronic communications of spy and terrorism suspects,
after the Senate voted down proposals from several Democrats and Republicans to
increase protections of civil liberties and privacy.
The Senate passed the bill by a vote of 73 to 23, clearing it for approval by
President Obama, who strongly supports it. Intelligence agencies said the bill
was their highest legislative priority.
Critics of the bill, including Senators Ron Wyden of Oregon, a Democrat, and
Rand Paul of Kentucky, a Republican, expressed concern that electronic
surveillance, though directed at noncitizens, inevitably swept up communications
of Americans as well.
“The Fourth Amendment was written in a different time and a different age, but
its necessity and its truth are timeless,” Mr. Paul said, referring to the
constitutional ban on unreasonable searches and seizures. “Over the past few
decades, our right to privacy has been eroded. We have become lazy and haphazard
in our vigilance. Digital records seem to get less protection than paper
records.”
The bill, which extends the government’s surveillance authority for five years,
was approved in the House by a vote of 301 to 118 in September. Mr. Obama is
expected to sign the bill in the next few days.
Congressional critics of the bill said that they suspected that intelligence
agencies were picking up the communications of many Americans, but that they
could not be sure because the agencies would not provide even rough estimates of
how many people inside the United States had had communications collected under
authority of the surveillance law, known as the Foreign Intelligence
Surveillance Act.
The inspector general of the National Security Agency told Congress that
preparing such an estimate was beyond the capacity of his office.
The chief Senate supporter of the bill, Dianne Feinstein, Democrat of California
and chairwoman of the Senate intelligence committee, said the proposed
amendments were unnecessary. Moreover, she said, any changes would be subject to
approval by the House, and the resulting delay could hamper the government’s use
of important intelligence-gathering tools, for which authority is set to expire
next week.
The Foreign Intelligence Surveillance Act was adopted in 1978 and amended in
2008, with the addition of new surveillance authority and procedures, which are
continued by the bill approved on Friday. The 2008 law was passed after the
disclosure that President George W. Bush had authorized eavesdropping inside the
United States, to search for evidence of terrorist activity, without the
court-approved warrants ordinarily required for domestic spying.
Senator Mark Udall, Democrat of Colorado, said that he and Mr. Wyden were
concerned that “a loophole” in the 2008 law “could allow the government to
effectively conduct warrantless searches for Americans’ communications.”
James R. Clapper Jr., the director of national intelligence, told Congress,
“There is no loophole in the law.”
By a vote of 52 to 43, the Senate on Friday rejected a proposal by Mr. Wyden to
require the national intelligence director to tell Congress if the government
had collected any domestic e-mail or telephone conversations under the
surveillance law.
The Senate also rejected, 54 to 37, an amendment that would have required
disclosure of information about significant decisions by a special federal court
that reviews applications for electronic surveillance in foreign intelligence
cases.
The amendment was proposed by one of the most liberal senators, Jeff Merkley,
Democrat of Oregon, and one of the most conservative, Mike Lee, Republican of
Utah.
The No. 2 Senate Democrat, Richard J. Durbin of Illinois, said the surveillance
law “does not have adequate checks and balances to protect the constitutional
rights of innocent American citizens.”
“It is supposed to focus on foreign intelligence,” Mr. Durbin said, “but the
reality is that this legislation permits targeting an innocent American in the
United States as long as an additional purpose of the surveillance is targeting
a person outside the United States.”
However, 30 Democrats joined 42 Republicans and one independent in voting for
the bill. Three Republicans — Mr. Lee, Mr. Paul and Senator Lisa Murkowski of
Alaska — voted against the bill, as did 19 Democrats and one independent.
Mr. Merkley said the administration should provide at least unclassified
summaries of major decisions by the Foreign Intelligence Surveillance Court.
“An open and democratic society such as ours should not be governed by secret
laws,” Mr. Merkley said, “and judicial interpretations are as much a part of the
law as the words that make up our statute.”
Mrs. Feinstein said the law allowed intelligence agencies to go to the court and
get warrants for surveillance of “a category of foreign persons,” without
showing probable cause to believe that each person was working for a foreign
power or a terrorist group.
Mr. Wyden said these writs reminded him of the “general warrants that so upset
the colonists” more than 200 years ago.
“The founding fathers could never have envisioned tweeting and Twitter and the
Internet,” Mr. Wyden said. “Advances in technology gave government officials the
power to invade individual privacy in a host of new ways.”
Nearly seven years after the disclosure of President George W. Bush’s secret
program of spying on Americans without a warrant, the Supreme Court is about to
hear arguments on whether judges can even consider the constitutionality of
doing this kind of dragnet surveillance without adequate rules to protect
people’s rights.
President Obama’s solicitor general, Donald Verrilli Jr., will be calling on the
court to toss out the case based on a particularly cynical Catch-22: Because the
wiretaps are secret and no one can say for certain that their calls have been or
will be monitored, no one has standing to bring suit over the surveillance. The
United States Court of Appeals for the Second Circuit rejected that avoidance of
accountability, and so should the Supreme Court.
The lawsuit the Justice Department is trying so hard to block concerns the 2008
statute amending the Foreign Intelligence Surveillance Act. The new law
retroactively approved Mr. Bush’s legally dubious warrantless wiretapping and
conferred immunity from prosecution on the telephone companies that cooperated
in the program.
The measure gave the government broad and unprecedented power to intercept the
communications of Americans without individualized warrants based on probable
cause or any administrative finding of a terrorism connection. It lowered the
burden of proof for government wiretapping of suspects, weakened judicial
supervision, and failed to set adequate limits on retention and dissemination of
acquired information. The statute discarded traditional constitutional
protections for the privacy of innocent people, and chilled the exercise of the
core democratic rights of free speech and association.
It would not require a legal stretch for the court to find that the plaintiffs
had standing to sue. The plaintiffs are lawyers and human rights, labor, legal
and media organizations engaged in work that requires them to be in
communication with colleagues, clients, journalistic sources, victims of human
rights abuses and others outside the United States. They have a reasonable fear
of government monitoring of sensitive conversations, based on the law’s
vacuum-cleaner approach to surveillance and the identities and locations of
their contacts.
They have taken expensive and burdensome steps to avoid the risk of government
eavesdropping, demonstrating tangible injury. For lawyers, an ethical obligation
to safeguard client confidences requires such protective actions. Under existing
Supreme Court doctrine, plaintiffs who have been harmed by government conduct
are allowed to bring suit, even if, as here, they may not be direct targets. As
the Supreme Court recognized in an important 1972 case, the invoking of national
security to justify warrantless surveillance only heightens the need for
searching judicial review.
Technically, the only question before the court is the fairly narrow-sounding
issue of standing that it has agreed to hear. But should the court acquiesce to
the government’s cramped reading of standing, the larger implications should be
clear to everyone. As a practical matter, it would foreclose any meaningful
judicial review of the warrantless wiretapping statute, perhaps permanently. The
damage to the nation’s system of checks and balances, which relies on
independent court scrutiny of laws as a safeguard against legislative and
executive branch overreaching that disrespects constitutional rights, would be
serious.
February 27, 2012
The New York Times
By JOSEPH GOLDSTEIN
Police Commissioner Raymond W. Kelly defended the New York
Police Department’s counterterrorism program on Monday, saying “people have
short memories as to what happened here in 2001.”
Mr. Kelly’s remarks, made during an appearance on WOR-AM (710), were in response
to growing criticism of the department’s surveillance methods, including
monitoring of Muslim communities in New York City and beyond, and its reliance
on stop-and-frisk interactions as a crime-fighting tool.
He defended the surveillance conducted by the Police Department, saying, “It
would be folly for us to focus only on the five boroughs of New York City, and
we have to use all of our resources to protect everyone.”
Mr. Kelly suggested that criticism from political candidates amounted to
“pandering” that ignored the department’s core mission. “What we’re trying to do
is save lives, and the tactics and strategies that we’ve used on the streets of
this city have indeed saved lives,” he said.
Mr. Kelly’s remarks on Monday were the latest in which he has mounted a strong
defense of the Police Department, which has been criticized in the last several
months over its handling of the Occupy Wall Street protests last year and the
rising numbers of street stops in high-crime areas.
More recently, the latest in a series of articles by The Associated Press on the
department’s surveillance of Muslims examined how the police had mapped out
Muslim neighborhoods in Newark, focusing on businesses and mosques, and how
police reports had been based on information gleaned by monitoring Web sites of
Muslim student organizations at universities across the Northeast. After the
articles were published, a number of universities issued statements expressing
concern over the Police Department’s scrutiny of their student organizations,
and some New Jersey officials expressed alarm at the Police Department’s
operations in their state.
Last week, in an article under Mr. Kelly’s name in The Daily News, he described
the Police Department’s strategy for combating gun violence. Then on Monday, he
was the subject of a front-page column in The Daily News by Mike Lupica, in
which Mr. Kelly said he was not going to backtrack.
“So apologize for doing what I’m paid to do, for being realistic about the way
we protect this city, and what we know about the way radical Islam works?” Mr.
Kelly said in the column. “Not happening.”
Speaking on WOR, during a segment hosted by Representative Peter T. King,
Republican of Long Island, Mr. Kelly continued his defiant tone, saying that
regardless of criticism, the Police Department was going to do “what we believe
has to be done to protect our city.” He criticized the news media as being
shortsighted, saying that “they forget” that New York City has been the target
of numerous terrorist plots — Mr. Kelly put the number at 14 — since the Sept.
11, 2001, attack.
Mr. King referred to an elected official who said that people in his district
were more frightened by the Police Department than they were of drug dealers. “I
find those remarks absolutely disgraceful,” Mr. King said.
“Absolutely,” Mr. Kelly replied. “Well, you know, pandering is going on, that’s
the season that we’re entering now.”
February 17, 2012
The New York Times
By NICK WINGFIELD
and SOMINI SENGUPTA
WOODLAND HILLS, Calif. — Daniel Gárate’s career came crashing
to earth a few weeks ago. That’s when the Los Angeles Police Department warned
local real estate agents not to hire photographers like Mr. Gárate, who was
helping sell luxury property by using a drone to shoot sumptuous aerial movies.
Flying drones for commercial purposes, the police said, violated federal
aviation rules.
“I was paying the bills with this,” said Mr. Gárate, who recently gave an unpaid
demonstration of his drone in this Southern California suburb.
His career will soon get back on track. A new federal law, signed by the
president on Tuesday, compels the Federal Aviation Administration to allow
drones to be used for all sorts of commercial endeavors — from selling real
estate and dusting crops, to monitoring oil spills and wildlife, even shooting
Hollywood films. Local police and emergency services will also be freer to send
up their own drones.
But while businesses, and drone manufacturers especially, are celebrating the
opening of the skies to these unmanned aerial vehicles, the law raises new
worries about how much detail the drones will capture about lives down below —
and what will be done with that information. Safety concerns like midair
collisions and property damage on the ground are also an issue.
American courts have generally permitted surveillance of private property from
public airspace. But scholars of privacy law expect that the likely
proliferation of drones will force Americans to re-examine how much surveillance
they are comfortable with.
“As privacy law stands today, you don’t have a reasonable expectation of privacy
while out in public, nor almost anywhere visible from a public vantage,” said
Ryan Calo, director of privacy and robotics at the Center for Internet and
Society at Stanford University. “I don’t think this doctrine makes sense, and I
think the widespread availability of drones will drive home why to lawmakers,
courts and the public.”
Some questions likely to come up: Can a drone flying over a house pick up heat
from a lamp used to grow marijuana inside, or take pictures from outside
someone’s third-floor fire escape? Can images taken from a drone be sold to a
third party, and how long can they be kept?
Drone proponents say the privacy concerns are overblown. Randy McDaniel, chief
deputy of the Montgomery County Sheriff’s Department in Conroe, Tex., near
Houston, whose agency bought a drone to use for various law enforcement
operations, dismissed worries about surveillance, saying everyone everywhere can
be photographed with cellphone cameras anyway. “We don’t spy on people,” he
said. “We worry about criminal elements.”
Still, the American Civil Liberties Union and other advocacy groups are calling
for new protections against what the A.C.L.U. has said could be “routine aerial
surveillance of American life.”
Under the new law, within 90 days, the F.A.A. must allow police and first
responders to fly drones under 4.4 pounds, as long as they keep them under an
altitude of 400 feet and meet other requirements. The agency must also allow for
“the safe integration” of all kinds of drones into American airspace, including
those for commercial uses, by Sept. 30, 2015. And it must come up with a plan
for certifying operators and handling airspace safety issues, among other rules.
The new law, part of a broader financing bill for the F.A.A., came after intense
lobbying by drone makers and potential customers.
The agency probably will not be making privacy rules for drones. Although
federal law until now had prohibited drones except for recreational use or for
some waiver-specific law enforcement purposes, the agency has issued only
warnings, never penalties, for unauthorized uses, a spokeswoman said. The agency
was reviewing the law’s language, the spokeswoman said.
For drone makers, the change in the law comes at a particularly good time. With
the winding-down of the war in Afghanistan, where drones have been used to
gather intelligence and fire missiles, these manufacturers have been awaiting
lucrative new opportunities at home. The market for drones is valued at $5.9
billion and is expected to double in the next decade, according to industry
figures. Drones can cost millions of dollars for the most sophisticated
varieties to as little as $300 for one that can be piloted from an iPhone.
“We see a huge potential market,” said Ben Gielow of the Association for
Unmanned Vehicle Systems International, a drone maker trade group.
For Patrick Egan, who represents small businesses and others in his work for the
Remote Control Aerial Photography Association in Sacramento, the new law also
can’t come fast enough. Until 2007, when the federal agency began warning
against nonrecreational use of drones, he made up to $2,000 an hour using a
drone to photograph crops for farmers, helping them spot irrigation leaks. “I’ve
got organic farmers screaming for me to come out,” he said.
The Montgomery County Sheriff’s Department in Texas bought its 50-pound drone in
October from Vanguard Defense Industries, a company founded by Michael Buscher,
who built drones for the army, and then sold them to an oil company whose ships
were threatened by pirates in the Gulf of Aden. The company custom-built the
drone, which takes pictures by day and senses heat sources at night. It cost
$300,000, a fraction of the cost of a helicopter.
Mr. McDaniel said his SWAT team could use it for reconnaissance, or to manage
road traffic after a big accident. He said he regretted that he didn’t have it a
few months ago, to search for a missing person in a densely wooded area.
Mr. Buscher, meanwhile, said he was negotiating with several police agencies.
“There is tremendous potential,” he said. “We see agencies dipping their toes.”
The possibilities for drones appear limitless. Last year, Cy Brown of Bunkie,
La., began hunting feral pigs at night by outfitting a model airplane with a
heat-sensing camera that soared around his brother’s rice farm, feeding live
aerial images of the pigs to Mr. Brown on the ground. Mr. Brown relayed the
pigs’ locations by radio to a friend with a shotgun.
He calls his plane the Dehogaflier, and says it saves him time wandering in the
muck looking for skittish pigs. “Now you can know in 15 minutes if it’s worth
going out,” said Mr. Brown, an electrical engineer.
Earlier this month, in Woodland Hills, Mr. Gárate, the photographer,
demonstrated his drone by flicking a hand-held joystick and sending the $5,000
machine hovering high above a tennis court. A camera beneath the drone recorded
lush, high-definition video of the surrounding property.
Bill Kerbox, a real estate agent in Malibu who hired Mr. Gárate for several
shoots before the L.A.P.D. crackdown, said that aerial video had helped him
stand out from his competitors, and that the loss of it had been painful.
Mr. Gárate, for now, plans to work mainly in his native Peru, where he has used
his drone to shoot commercials for banks. He said he was approached by paparazzi
last year about filming the reality television star Kim Kardashian’s wedding
using a drone, but turned down the offer. “Maybe the F.A.A. should give a
driver’s license for this, with a flight test,” he said. “Do a background check
to make sure I’m not a terrorist.”
September 27,
2011
The New York Times
By CHARLIE SAVAGE
WASHINGTON —
The Federal Bureau of Investigation is permitted to include people on the
government’s terrorist watch list even if they have been acquitted of
terrorism-related offenses or the charges are dropped, according to newly
released documents.
The files, released by the F.B.I. under the Freedom of Information Act, disclose
how the police are instructed to react if they encounter a person on the list.
They lay out, for the first time in public view, the legal standard that
national security officials must meet in order to add a name to the list. And
they shed new light on how names are vetted for possible removal from the list.
Inclusion on the watch list can keep terrorism suspects off planes, block
noncitizens from entering the country and subject people to delays and greater
scrutiny at airports, border crossings and traffic stops.
The database now has about 420,000 names, including about 8,000 Americans,
according to the statistics released in connection with the 10th anniversary of
the Sept. 11 attacks. About 16,000 people, including about 500 Americans, are
barred from flying.
Timothy J. Healy, the director of the F.B.I.’s Terrorist Screening Center, which
vets requests to add or remove names from the list, said the documents showed
that the government was balancing civil liberties with a careful, multilayered
process for vetting who goes on it — and for making sure that names that no
longer need to be on it came off.
“There has been a lot of criticism about the watch list,” claiming that it is
“haphazard,” he said. “But what this illustrates is that there is a very
detailed process that the F.B.I. follows in terms of nominations of watch-listed
people.”
Still, some of the procedures drew fire from civil liberties advocates,
including the Electronic Privacy Information Center, which made the original
request and provided the documents to The New York Times.
The 91 pages of newly disclosed files include a December 2010 guidance
memorandum to F.B.I. field offices showing that even a not-guilty verdict may
not always be enough to get someone off the list, if agents maintain they still
have “reasonable suspicion” that the person might have ties to terrorism.
“If an individual is acquitted or charges are dismissed for a crime related to
terrorism, the individual must still meet the reasonable suspicion standard in
order to remain on, or be subsequently nominated to, the terrorist watch list,”
the once-classified memorandum says.
Ginger McCall, a counsel at the Electronic Privacy Information Center, said: “In
the United States, you are supposed to be assumed innocent. But on the watch
list, you may be assumed guilty, even after the court dismisses your case.”
But Stewart Baker, a former Homeland Security official in the Bush
administration, argued that even if the intelligence about someone’s possible
terrorism ties fell short of the courtroom standard of “beyond a reasonable
doubt,” it could still be appropriate to keep the person on the watch list as
having attracted suspicion.
Mr. Baker noted that being subjected to extra questioning — or even kept off
flights — was different than going to prison.
The guidance memo to F.B.I. field offices says someone may be deemed a “known or
suspected terrorist” if officials have “particularized derogatory information”
to support their suspicions.
That standard may be met by an allegation that the suspect has terrorism ties if
the claim is corroborated by at least one other source, it said, but “mere
guesses or ‘hunches’ are not enough.”
Normally, it says, if agents close the investigation without charges, they
should remove the subject’s name — as they should also normally do in the case
of an acquittal. But for exceptions, the F.B.I. maintains a special file for
people whose names it is keeping in the database because it has decided they
pose a national security risk even they are not the subject any active
investigation.
The F.B.I.’s Terrorist Screening Center shares the data with other federal
agencies for screening aircraft passengers, people who are crossing the border
and people who apply for visas. The data is also used by local police officers
to check names during traffic stops.
The December memorandum lays out procedures for police officers to follow when
they encounter people who are listed. For example, officers are never to tell
the suspects that they might be on the watch list, and they must immediately
call the federal government for instructions.
In addition, it says, police officers and border agents are to treat suspects
differently based on which “handling codes” are in the system.
Some people, with outstanding warrants, are to be arrested; others are to be
questioned while officers check with the Department of Homeland Security to see
whether it has or will issue a “detainer” request; and others should be allowed
to proceed without delay.
The documents show that the F.B.I. is developing a system to automatically
notify regional “fusion centers,” where law enforcement agencies share
information, if officers nearby have encountered someone on the list. The bureau
also requires F.B.I. supervisors to sign off before an advisory would warn the
police that a subject is “armed and dangerous” or has “violent tendencies.”
The F.B.I. procedures encourage agents to renominate suspects for the watch list
even if they were already put on it by another agency — meaning multiple
agencies would have to be involved in any attempt to later remove that person.
The procedures offer no way for people who are on the watch list to be notified
of that fact or given an opportunity to see and challenge the specific
allegations against them.
Chris Calabrese, a counsel with the American Civil Liberties Union, called the
watch list system a “Star Chamber” — “a secret determination, that you have no
input into, that you are a terrorist. Once that determination is made, it can
ripple through your entire life and you have no way to challenge it.”
But Mr. Healy said the government could not reveal who was on the list, or why,
because that would risk revealing intelligence sources. He also defended the
idea of the watch list, saying the government would be blamed if, after a
terrorist attack, it turned out the perpetrator had attracted the suspicions of
one agency but it had not warned other agencies to scrutinize the person.
Mr. Healy also suggested that fears of the watch list were exaggerated, in part
because there are many other reasons that people are subjected to extra
screening at airports. He said more than 200,000 people have complained to the
Department of Homeland Security about their belief that they were wrongly on the
list, but fewer than 1 percent of them were actually on it.
November 25, 2010
The New York Times
By ROGER COHEN
LONDON — The full-body scanners and intrusive pat-downs that are fast
becoming the norm at U.S. airports — just in time for Thanksgiving! — do at
least provide the answer to what should be done with Osama bin Laden if he’s
ever captured: Rotate him in perpetuity through this security hell, “groin
checks” and all.
He’ll crumple fast and wonder that 19 young guys in four planes could so warp
the nervous system of the world’s most powerful nation that it has empowered
zealous bureaucrats to trample on the liberties for which Americans give thanks
this week.
In his stupor, arms raised as his body gets “imaged,” arms outstretched through
“enhanced” patting, bin Laden might also wonder at just how stupid it is to
assemble huge crowds at the Transportation Security Administration’s airport
checkpoints, as if hundreds of people on planes were the only hundreds of people
who make plausible targets for terrorists.
It seems Abdulmutallab, a name T.S.A. agents must now memorize, is to blame.
Abdulmutallab is the failed Nigerian “underwear bomber” of last Christmas. He
joins the failed shoe bomber and failed shampoo-and-bottled-water bombers in a
remarkable success: adding another blanket layer of T.S.A checks, including
dubious gropes, to the daily humiliations of travelers.
Whether or not these explosive devices were ever actually operable remains a
matter of dispute, just as it remains a mystery that the enemy — if as powerful
as portrayed — has not contrived a single terrorist act on U.S. soil since 9/11.
What is not in doubt is an old rule: Give a bureaucrat a big stick and a big
budget, allow said bureaucrat to trade in the limitless currency of human
anxiety, and the masses will soon be intimidated by the Department of Fear.
Lavrenti Beria, Stalin’s notorious secret police chief, once said, “Show me the
man and I’ll find you the crime.” The T.S.A. seems to operate on the basis of an
adapted maxim: “Show me the security check and I’ll find you the excuse.”
Anyone who has watched T.S.A. agents spending 10 minutes patting down
80-year-old grandmothers, or seen dismayed youths being ordered back into the
scanner booth by agents connected wirelessly to other invisible agents gazing at
images of these people in a state of near-nakedness, has to ask: What form of
group madness is it that forsakes judgment and discernment for process run amok?
I don’t doubt the patriotism of the Americans involved in keeping the country
safe, nor do I discount the threat, but I am sure of this: The unfettered growth
of the Department of Homeland Security and the T.S.A. represent a greater
long-term threat to the prosperity, character and wellbeing of the United States
than a few madmen in the valleys of Waziristan or the voids of Yemen.
America is a nation of openness, boldness and risk-taking. Close this nation,
cow it, constrict it and you unravel its magic.
There are now about 400 full-body scanners, set to grow to 1,000 next year. One
of the people pushing them most energetically is Michael Chertoff, the former
Secretary of Homeland Security.
He’s the co-founder and managing principal of the Chertoff Group, which provides
security advice. One of its clients is California-based Rapiscan Systems, part
of the OSI Systems corporation, that makes many of the “whole body” scanners
being installed.
Chertoff has recently been busy rubbishing Martin Broughton, the wise British
Airways chairman who said many security checks were redundant — calling him
“ill-informed.” Early this year Chertoff called on Congress to “fund a
large-scale deployment of next-generation systems.”
Rapiscan and its adviser the Chertoff Group will certainly profit from the
deployment underway (some of the machines were bought with funds from the
American Recovery and Reinvestment Act). Americans as a whole will not.
Rapiscan: Say the name slowly. It conjures up a sinister science fiction. When a
government has a right to invade the bodies of its citizens, security has
trumped freedom.
Intelligence has improved beyond measure since 9/11. It can be used far more
effectively at airports. Instead of humiliating everyone, focus on the very
small proportion of travelers who might present a threat.
You can’t talk down fear simply by calling terrorists “violent extremists,” or
getting rid of the color-coded terrorism alert system, as the Obama
administration has done. During the Bosnian war, besieged Sarajevans had a word
— “inat” — for the contempt-cum-spite they showed barbarous gunners on the hills
by dressing and carrying on as normal. Inat is what Americans should show the
jihadist cave-dwellers.
So I give thanks this week for the Fourth Amendment: “The right of the people to
be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.”
I give thanks for Benjamin Franklin’s words after the 1787 Constitutional
Convention describing the results of its deliberations: “A Republic, if you can
keep it.”
To keep it, push back against enhanced patting, Chertoff’s naked-screening and
the sinister drumbeat of fear.
September 27, 2010
The New York Times
By CHARLIE SAVAGE
WASHINGTON — Federal law enforcement and national security officials are
preparing to seek sweeping new regulations for the Internet, arguing that their
ability to wiretap criminal and terrorism suspects is “going dark” as people
increasingly communicate online instead of by telephone.
Essentially, officials want Congress to require all services that enable
communications — including encrypted e-mail transmitters like BlackBerry, social
networking Web sites like Facebook and software that allows direct “peer to
peer” messaging like Skype — to be technically capable of complying if served
with a wiretap order. The mandate would include being able to intercept and
unscramble encrypted messages.
The bill, which the Obama administration plans to submit to lawmakers next year,
raises fresh questions about how to balance security needs with protecting
privacy and fostering innovation. And because security services around the world
face the same problem, it could set an example that is copied globally.
James X. Dempsey, vice president of the Center for Democracy and Technology, an
Internet policy group, said the proposal had “huge implications” and challenged
“fundamental elements of the Internet revolution” — including its decentralized
design.
“They are really asking for the authority to redesign services that take
advantage of the unique, and now pervasive, architecture of the Internet,” he
said. “They basically want to turn back the clock and make Internet services
function the way that the telephone system used to function.”
But law enforcement officials contend that imposing such a mandate is reasonable
and necessary to prevent the erosion of their investigative powers.
“We’re talking about lawfully authorized intercepts,” said Valerie E. Caproni,
general counsel for the Federal Bureau of Investigation. “We’re not talking
expanding authority. We’re talking about preserving our ability to execute our
existing authority in order to protect the public safety and national security.”
Investigators have been concerned for years that changing communications
technology could damage their ability to conduct surveillance. In recent months,
officials from the F.B.I., the Justice Department, the National Security Agency,
the White House and other agencies have been meeting to develop a proposed
solution.
There is not yet agreement on important elements, like how to word statutory
language defining who counts as a communications service provider, according to
several officials familiar with the deliberations.
But they want it to apply broadly, including to companies that operate from
servers abroad, like Research in Motion, the Canadian maker of BlackBerry
devices. In recent months, that company has come into conflict with the
governments of Dubai and India over their inability to conduct surveillance of
messages sent via its encrypted service.
In the United States, phone and broadband networks are already required to have
interception capabilities, under a 1994 law called the Communications Assistance
to Law Enforcement Act. It aimed to ensure that government surveillance
abilities would remain intact during the evolution from a copper-wire phone
system to digital networks and cellphones.
Often, investigators can intercept communications at a switch operated by the
network company. But sometimes — like when the target uses a service that
encrypts messages between his computer and its servers — they must instead serve
the order on a service provider to get unscrambled versions.
Like phone companies, communication service providers are subject to wiretap
orders. But the 1994 law does not apply to them. While some maintain
interception capacities, others wait until they are served with orders to try to
develop them.
The F.B.I.’s operational technologies division spent $9.75 million last year
helping communication companies — including some subject to the 1994 law that
had difficulties — do so. And its 2010 budget included $9 million for a “Going
Dark Program” to bolster its electronic surveillance capabilities.
Beyond such costs, Ms. Caproni said, F.B.I. efforts to help retrofit services
have a major shortcoming: the process can delay their ability to wiretap a
suspect for months.
Moreover, some services encrypt messages between users, so that even the
provider cannot unscramble them.
There is no public data about how often court-approved surveillance is
frustrated because of a service’s technical design.
But as an example, one official said, an investigation into a drug cartel
earlier this year was stymied because smugglers used peer-to-peer software,
which is difficult to intercept because it is not routed through a central hub.
Agents eventually installed surveillance equipment in a suspect’s office, but
that tactic was “risky,” the official said, and the delay “prevented the
interception of pertinent communications.”
Moreover, according to several other officials, after the failed Times Square
bombing in May, investigators discovered that the suspect, Faisal Shahzad, had
been communicating with a service that lacked prebuilt interception capacity. If
he had aroused suspicion beforehand, there would have been a delay before he
could have been wiretapped.
To counter such problems, officials are coalescing around several of the
proposal’s likely requirements:
¶ Communications services that encrypt messages must have a way to unscramble
them.
¶ Foreign-based providers that do business inside the United States must install
a domestic office capable of performing intercepts.
¶ Developers of software that enables peer-to-peer communication must redesign
their service to allow interception.
Providers that failed to comply would face fines or some other penalty. But the
proposal is likely to direct companies to come up with their own way to meet the
mandates. Writing any statute in “technologically neutral” terms would also help
prevent it from becoming obsolete, officials said.
Even with such a law, some gaps could remain. It is not clear how it could
compel compliance by overseas services that do no domestic business, or from a
“freeware” application developed by volunteers.
In their battle with Research in Motion, countries like Dubai have sought
leverage by threatening to block BlackBerry data from their networks. But Ms.
Caproni said the F.B.I. did not support filtering the Internet in the United
States.
Still, even a proposal that consists only of a legal mandate is likely to be
controversial, said Michael A. Sussmann, a former Justice Department lawyer who
advises communications providers.
“It would be an enormous change for newly covered companies,” he said.
“Implementation would be a huge technology and security headache, and the
investigative burden and costs will shift to providers.”
Several privacy and technology advocates argued that requiring interception
capabilities would create holes that would inevitably be exploited by hackers.
Steven M. Bellovin, a Columbia University computer science professor, pointed to
an episode in Greece: In 2005, it was discovered that hackers had taken
advantage of a legally mandated wiretap function to spy on top officials’
phones, including the prime minister’s.
“I think it’s a disaster waiting to happen,” he said. “If they start building in
all these back doors, they will be exploited.”
Susan Landau, a Radcliffe Institute of Advanced Study fellow and former Sun
Microsystems engineer, argued that the proposal would raise costly impediments
to innovation by small startups.
“Every engineer who is developing the wiretap system is an engineer who is not
building in greater security, more features, or getting the product out faster,”
she said.
Moreover, providers of services featuring user-to-user encryption are likely to
object to watering it down. Similarly, in the late 1990s, encryption makers
fought off a proposal to require them to include a back door enabling
wiretapping, arguing it would cripple their products in the global market.
But law enforcement officials rejected such arguments. They said including an
interception capability from the start was less likely to inadvertently create
security holes than retrofitting it after receiving a wiretap order.
They also noted that critics predicted that the 1994 law would impede cellphone
innovation, but that technology continued to improve. And their envisioned
decryption mandate is modest, they contended, because service providers — not
the government — would hold the key.
“No one should be promising their customers that they will thumb their nose at a
U.S. court order,” Ms. Caproni said. “They can promise strong encryption. They
just need to figure out how they can provide us plain text.”
WASHINGTON — The government's terrorist watch list has hit 1 million entries,
up 32% since 2007.
Federal data show the rise comes despite the removal of 33,000 entries last
year by the FBI's Terrorist Screening Center in an effort to purge the list of
outdated information and remove people cleared in investigations.
It's unclear how many individuals those 33,000 records represent — the center
often uses multiple entries, or "identities," for a person to reflect variances
in name spellings or other identifying information. The remaining million
entries represent about 400,000 individuals, according to the center.
The new figures were provided by the screening center and the Office of the
Director of National Intelligence in response to requests from USA TODAY.
"We're continually trying to improve the quality of the information," says
Timothy Edgar, a civil liberties officer at the intelligence director's office.
"It's always going to be a work in progress."
People put on the watch list by intelligence and law enforcement agencies can be
blocked from flying, stopped at borders or subjected to other scrutiny. About
95% of the people on the list are foreigners, the FBI says, but it's a source of
frequent complaints from U.S. travelers.
In the past two years, 51,000 people have filed "redress" requests claiming they
were wrongly included on the watch list, according to the Department of Homeland
Security. In the vast majority of cases reviewed so far, it has turned out that
the petitioners were not actually on the list, with most having been
misidentified at airports because their names resembled others on it.
There have been 830 redress requests since 2005 where the person was, in fact,
confirmed to be on the watch list, and further review by the screening center
led to the removal of 150, or 18% of them.
Without specific rules for who goes on the list, it's too bloated to be
effective, says Tim Sparapani, a lawyer with the American Civil Liberties Union.
A 2007 audit by the Government Accountability Office said more needed to be done
to ensure the list's accuracy, but still found that it has "enhanced the U.S.
government's counterterrorism efforts."
