It was once
thought that the government should neither be able to stop citizens from
speaking nor peer into their lives.
Think of that as the essence of the
Constitutional era that ended when those towers came down on September
11, 2001.
Consider how privacy worked before 9/11 and how it works now
in Post-Constitutional America.
Tomgram: Peter Van Buren, What We've Lost Since 9/11 (Part 2)
When
it comes to spying, surveillance, and privacy, a simple rule applies to
our world: however bad you think it is, it’s worse. Thanks to Edward
Snowden, we’ve learned an enormous amount about the global surveillance regime that one of America’s 17 intelligence outfits
has created to suck into its maw (and its storage facilities) all
communications on the planet, no matter their form. We certainly know a
lot more than we did a year ago about what the government is capable of
knowing about us. We’ve also recently learned a good deal about “big data”
and what corporations can now know about us, as well as how much more
they may know once your house is filled with “smart” technology.
Less is understood about how corporate surveillance is coming to
the workplace, but sooner or later -- count on it -- the company or
business you work for will be capable, via intelligent software, of
monitoring every move you make, not to speak of everyone you may be in
touch with while on the clock. The truth is, whatever the euphemisms,
just about every imaginable way of knowing and surveilling you is here
or on its way. In Oakland, California, for instance, you could mistake
the anodyne name of “the Domain Awareness Center”
for the latest in New Age spiritualism. In fact, as CNN recently
reported, it’s a “proposed central surveillance facility where
authorities can monitor the Port of Oakland and the city's airport to
protect against potential terrorism.” Someday, it may integrate “live,
24/7 data streams from closed circuit traffic cameras, police license
plate readers, gunshot detectors, and other sources from all over the
entire city of Oakland.” This means that, despite theoretically being
on the lookout for terrorists (how many of those are there in Oakland?),
it will be able to track you anywhere in the area.
It’s no
exaggeration to say that in our developing brave new world of
surveillance, inside or outside your house, there will be nowhere that
you aren't potentially trackable and surveillable, no space that is just
yours and no one else's. This also means that, however bad you think
it is, government and corporate employees somewhere are already creating
the next set of processes, technologies, and facilities to monitor you
in yet more vivid detail.
Now, let’s add rule two: however bad you think it is, you don’t know the half of it. Yes, you’ve been following the Snowden NSA revelations,
but no Snowden has stepped forward (yet) to reveal what the CIA or FBI
or Defense Intelligence Agency or Department of Homeland Security or
National Geospatial-Intelligence Agency is doing. And as far as the
national security state is concerned, the less you know, the better.
Take, for example, a recent Associated Press story
with this revelation: citing “security reasons” (as always), the Obama
administration “has been quietly advising local police not to disclose
details about surveillance technology they are using to sweep up basic
cellphone data from entire neighborhoods.”
It might even be your
neighborhood. In such a situation, it will be easy enough perhaps to
forget the value of the sense of privacy in your life, whether you feel
you have something to hide or not. Just yesterday, the Supreme Court put
a rare brake on the loss of privacy, ruling that the police must have a warrant to search your cell phone after your arrest. In the second of a three-part series on the shredding of the Bill of Rights (amendment by amendment), State Department whistleblower and TomDispatch regular
Peter Van Buren takes on the destruction of the protections for
American privacy in the Fourth Amendment -- destruction that, if we’re
not careful, could soon seem as American as apple pie. Tom
Shredding the Fourth Amendment in Post-Constitutional America: Four Ways It No Longer Applies
The Fourth Amendment
A response to British King George’s excessive invasions of privacy in colonial America, the
Fourth Amendment pulls no punches: “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.”
In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as “
unreasonable” in our old constitutional world, but no more.
Here, then, are four ways that, in the name of American “security” and according to our government, the Fourth Amendment no longer really applies to our lives.
The Constitutional Borderline
Begin at America's borders. Most people believe they are “in” the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.
Over the years,
recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in
1789.
Here’s the twist in the present era: the definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials. You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.
Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast “
Constitution-free zone.” The “border” is now a strip of land circling the country and extending
100 miles inland that includes
two-thirds of the U.S. population. In this vast region, Customs and Border Protection (CBP) can
set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker
Laura Poitras -- whose work focuses on national security issues in general and Edward Snowden in the particular -- knows firsthand. Since 2006, almost
every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.
There are multiple similar high-profile cases (including those of a
Wikileaks researcher and a
Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the U.S. and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a
FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them U.S. citizens, were subjected to electronic device searches at the border.
Still, reminding us that it’s possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent
pun at its website: “It is not the intent of CBP to subject travelers to unwarranted scrutiny.” (emphasis added)
Making It All Constitutional In-House
Here’s another example of how definitions have been readjusted to serve the national security state's overriding needs: the Department of Justice (DOJ) created a
Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.
Some background: a warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter
Thomas Anderson's home and look for hacked software. Warrants can only be issued on “probable cause.” The Supreme Court
defined probable cause as requiring a high standard of proof, or to quote its words, “a fair probability that contraband or evidence of a crime will be found in a particular place.”
A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as
most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.
The Department of Justice now claims that, under the Fourth Amendment, it can simply
subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: the DOJ isn't doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We don't know, as sources of data like Facebook and Google are
prohibited from
disclosing much about the information they hand over to the NSA or other government outfits about you.
It’s easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a “search.” The DOJ has continued this practice even though in 2010 a federal appeals court
ruled that bulk warrantless access to email violates the Fourth Amendment. An
FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureau’s agents don’t need warrants to access email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other service providers.
How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a
subpoena -- no court involved -- demanding that the Project On Government Oversight (
POGO)
turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.
Rather than seek to
break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has
refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.
Technology and the Fourth Amendment
Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoover's low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of
civil rights leaders,
popular musicians, and
antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureau’s counterintelligence program (
COINTELPRO).
But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the U.S. by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.
To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now online -- from banking to travel to social media. Where the NSA was once limited to traditional notions of communication -- the written and spoken word -- new possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to
facial recognition technology that can increasingly put a name to a face. Such technology, employed today at
casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.
An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own
trade association in Washington.) One of the world's
largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.
With ever more data available, the NSA and other agencies are creating ever more robust ways to
store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and
water to cool the electronics. Emerging
tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage
warehouses.
The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11
sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as
license plate readers, wiretaps, and records of
library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single “file.”
Once you have the whole
haystack, there’s still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBM's Non-Obvious Relationship Awareness software (
NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.
Tools like NORA and its more sophisticated classified cousins are NSA's solution to one of the last hurdles to knowing nearly everything: the need for human analysts to “connect the dots.” Skilled analysts take time to train, are prone to human error, and -- given the quickly expanding supply of data -- will always be in demand. Automated analysis also offers the NSA other advantages. Software doesn't have a conscience and it can't blow the whistle.
What does all this mean in terms of the Fourth Amendment? It’s simple: the technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these “advances,” even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.
On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this week's
unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a
ruling determining that the procedures for challenging one's inclusion on the government’s no-fly list are unconstitutional, another hopeful sign.)
Prior to the cell phone
decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phone -- call lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.
In its new decision, however, the court acknowledged that cell phones represent far more than a "physical object." The information they hold is a portrait of someone's life like what’s in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.
Does this matter when talking about the NSA's technological dragnet? Maybe. While the Supreme Court's decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.
National Security Disclosures Under HIPPA
While the NSA’s electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a violation that sits in broad daylight: since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.
Congress passed the Health Information Portability and Accountability Act (
HIPPA) in 1996 “to assure that individuals’ health information is properly protected.” You likely signed a HIPPA agreement at your doctor's office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this “privacy law”
states: “We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities.” The text is embedded deep in your health care provider’s documentation. Look for it.
How does this work? We don’t know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.
The Snowden revelations are often dismissed by people who wonder what they have to
hide. (Who cares if the NSA sees my cute cat videos?) That's why health-care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your life -- something, by the way, that couldn’t have less to do with American “security” or combating terrorism.
Our health-care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. You’re right to be afraid, but for goodness sake, don't discuss your fears with your doctor.
How the Unreasonable Becomes Reasonable
At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole
books have been written just about Edward Snowden and more information about government spying regularly becomes available. We don't lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the
president and
others are shown to be lies, the government continues to spin the debate into false discussions about how to “balance” freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to “nothing to hide, nothing to fear” line.
In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.
Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You won’t hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the king's thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark ends, largely without protest and often while still celebrating a land that no longer exists.
Peter Van Buren blew the whistle on State Department waste and mismanagement during the Iraqi reconstruction in his first book, We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People. A Tom Dispatch regular, he writes about current events at his blog, We Meant Well. His new book, Ghosts of Tom Joad: A Story of the #99Percent, is available now. This is the second in a three-part series on the shredding of the Bill of Rights.
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Copyright 2014 Peter Van Buren
