Someone Is Watching...

by hilzoy

Yesterday's WaPo had a truly frightening story about the FBI's use of National Security letters:

""National security letters," created in the 1970s for espionage and terrorism investigations, originated as narrow exceptions in consumer privacy law, enabling the FBI to review in secret the customer records of suspected foreign agents. The Patriot Act, and Bush administration guidelines for its use, transformed those letters by permitting clandestine scrutiny of U.S. residents and visitors who are not alleged to be terrorists or spies.

The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters -- one of which can be used to sweep up the records of many people -- are extending the bureau's reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.

Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot. (...)

A national security letter cannot be used to authorize eavesdropping or to read the contents of e-mail. But it does permit investigators to trace revealing paths through the private affairs of a modern digital citizen. The records it yields describe where a person makes and spends money, with whom he lives and lived before, how much he gambles, what he buys online, what he pawns and borrows, where he travels, how he invests, what he searches for and reads on the Web, and who telephones or e-mails him at home and at work."

Moreover, it's a crime to disclose that you have received a national security letter, and the person whose records are being sought is never informed of that fact. This makes the Justice department's claims that it has received no substantiated complaints about the abuse of this power a lot less impressive:

"Justice Department officials noted frequently this year that Inspector General Glenn A. Fine reports twice a year on abuses of the Patriot Act and has yet to substantiate any complaint. (One investigation is pending.) Fine advertises his role, but there is a puzzle built into the mandate. Under what scenario could a person protest a search of his personal records if he is never notified? "We do rely upon complaints coming in," Fine said in House testimony in May. He added: "To the extent that people do not know of anything happening to them, there is an issue about whether they can complain. So, I think that's a legitimate question.""

Yep.

Besides the mere fact of our government vacuuming up the personal records of 30,000 people many of whom are not suspected of any crime, there's one further problem:

"The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks -- and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for "state, local and tribal" governments and for "appropriate private sector entities," which are not defined."

The government gets to share my records with "appropriate private sector entities"? And we have no clue who those entities are? Here's what the government can do with this information, and what it and the mysterious "private sector entities" have access to:

""Starting with your bad guy and his telephone number and looking at who he's calling, and [then] who they're calling," the number of people surveilled "goes up exponentially," acknowledged Caproni, the FBI's general counsel. But Caproni said it would not be rational for the bureau to follow the chain too far. "Everybody's connected" if investigators keep tracing calls "far enough away from your targeted bad guy," she said. "What's the point of that?"

One point is to fill government data banks for another investigative technique. That one is called "link analysis," a practice Caproni would neither confirm nor deny.

Two years ago, Ashcroft rescinded a 1995 guideline directing that information obtained through a national security letter about a U.S. citizen or resident "shall be destroyed by the FBI and not further disseminated" if it proves "not relevant to the purposes for which it was collected." Ashcroft's new order was that "the FBI shall retain" all records it collects and "may disseminate" them freely among federal agencies.

The same order directed the FBI to develop "data mining" technology to probe for hidden links among the people in its growing cache of electronic files. According to an FBI status report, the bureau's office of intelligence began operating in January 2004 a new Investigative Data Warehouse, based on the same Oracle technology used by the CIA. The CIA is generally forbidden to keep such files on Americans.

Data mining intensifies the impact of national security letters, because anyone's personal files can be scrutinized again and again without a fresh need to establish relevance. "The composite picture of a person which emerges from transactional information is more telling than the direct content of your speech," said Woods, the former FBI lawyer. "That's certainly not been lost on the intelligence community and the FBI." Ashcroft's new guidelines allowed the FBI for the first time to add to government files consumer data from commercial providers such as LexisNexis and ChoicePoint Inc. Previous attorneys general had decided that such a move would violate the Privacy Act. In many field offices, agents said, they now have access to ChoicePoint in their squad rooms.

What national security letters add to government data banks is information that no commercial service can lawfully possess. Strict privacy laws, for example, govern financial and communications records. National security letters -- along with the more powerful but much less frequently used secret subpoenas from the Foreign Intelligence Surveillance Court -- override them."

Data mining involves putting together information on people, and looking for patterns in the composite pictures that emerge. A lot depends on what sort of patterns the data mining software is looking for, but it's easy to imagine how this could go wrong. For instance, consider me. I am a bioethicist, and in the course of my job I have had occasion to do a fair amount of research on subjects like bioterror, including things like: the lethality of various possible bioweapons, and the difficulties of containing their spread. Amazon.com currently has me pegged as someone who is interested in mathematical models of the spread of infectious disease, and recommends books like Mathematical Epidemiology of Infectious Diseases : Model Building, Analysis and Interpretation and Virus Dynamics: Mathematical Principles of Immunology and Virology. (Not nearly as fun as the time I was reading up, separately, on primates, addiction, and astronomy, and kept getting recommendations for books with titles like: Addicted Chimpanzees in Space!) Because of a combination of curiosity and blogging, there are few corners of the web so repellent that I have not at some point explored them, with the exception of porn, to which I seem to be immune. White supremacists, terrorist sympathizers and wannabes, violent separatist movements in obscure countries: I have surfed them all. And then there are the minor precautions I took after blogging avian flu, which presumably show up on my purchasing history: why, someone might ask, did she buy virucidal towelettes? I can imagine this all looking very suspicious.

Possibly the people who might track this would be sensible, read my blog posts, and figure it out. Then again, they might not. But why, exactly, should my purchasing history and so forth be in their hands to start with? Why, more generally, is the FBI empowered to obtain information like this on people who are not suspected of any crime, to retain it indefinitely, and to share it with all sorts of people, all without either the consent or even the notification of the people whose information they're collecting? And why, moreover, are they allowed to do this not just without being required to get a warrant (and thus to demonstrate that they have some need for the information), but without any judicial or Congressional oversight of any kind?

This is how countries become police states: by expanding the powers of their enforcement agencies to collect data, and doing it without the sorts of oversight and checks that keep this power within lawful bounds. If the FBI needs to collect information because they have credible information that it's relevant to the investigation of a crime, they can get a warrant. I do not mind their having the power to get information if they can demonstrate, to a judge, its relevance to national security. But allowing them to obtain this sort of information, and to keep it indefinitely, without having to explain to anyone why they need it is itself an abuse of government power, and an invitation to further abuses. We should not accept it.

Comments

[Gary Farber]

I expect I made my view clear yesterday.

[rilkefan]

... and the IRS is listening...

[trilobite]

I don't like the FBI or CIA doing this -- but I don't think the answer is to add a warrant requirement. It's all public information. A cop doesn't need a judge's approval to create a file, or collect newspaper clippings on someone, or even to interview the subject's friends & neighbors. Why is this different? The real problem, it seems to me, is not that there is no judicial oversight, but that there are no real standards that we know of for who they investigate or how they use the information. And unlike the average police force, these people have a lot of money to waste and a track record of letting their files be used for partisan political purposes. These files sound like the vast majority would be useless except for such purposes.

Which is not to say, by the way, that the whole purpose of having the files, or the power to make them, is to play dirty tricks. Frankly, it sounds more like busywork. As in, we don't have any clue what to do, let's get more data on everything. This looks and feels like doing something, and it can go on forever. It can always justify a bigger budget.

I would very much like to see a Congressional investigation just of the sheer waste of man-hours involved in creating & maintaining these files.

[hilzoy]

trilobite: my credit history is not public knowledge, nor are various other sorts of records that can be obtained by these means. (Read the article for examples: whether or not you stayed in a given hotel in Vegas on a given night, your phone records, your library history, etc.)

[trilobite]

I stand corrected. I thought it was all internet traces & phone company records.

[nous_athanatos]

I've been following this fairly closely for a while now for a class. This is way more than just public information, or I suppose one should say that this information is not the type available to the general public. Go to noplacetohide.net for more about the the US government's huge expansion of data mining for managing public safety. From the book excerpt.

On September 16, 2003, Charles McQueary paid a visit to the National Defense Industry Association. McQueary was the homeland undersecretary in charge of the new Directorate of Science and Technology. He was there to cultivate the association's 950 member companies, and to stoke their inclination to cash in on the historic push to create a homeland security infrastructure.

McQueary praised his audience for being so focused on protecting the United States, for protecting their way of life. Then he encouraged them to think big, far-out ideas about the kinds of research and development they can do to create new brands of sensors and other technology to detect and intercept attacks before they occur. Some of what he's aiming for goes into territory that John Poindexter was exploring. His plans include trying to replicate what he called the "sixth sense" that criminal investigators, border agents, and law enforcement authorities develop after years in the field. "It has been well known for years that experienced agents have developed almost a sixth sense - an ability to pick up on ineffable cues from an individual that indicate deception or otherwise 'raise the antennae' of suspicion," he told the contractors. "Today, we are exploring sensors that capture some of these indicators. There are also other indicators that these agents cannot detect, and for which we are developing capabilities to provide that information. We are working on: infrared detectors that register the heat signals around the eyes that are indicative of an autonomic 'fight or flight' response; and remote sensors for heart rate, or skin galvanic response."

It was another case of reality supplanting science fiction. In 2003, McQueary's people also began supporting the study of ways to enable border patrol to examine the protein fragments on a visitor's skin. They would monitor whether a person has been handling chemicals or other materials that might be used in a weapon of mass destruction. Presumably, the test could also be calibrated to show whether an individual has been handling cocaine, marijuana, or other drugs.

None of this will be easy, but it could be lucrative for those who try. "Let me assure you, we will support you as you support us. So what do we want from you?" McQueary asked the contractors.

"We want you to recognize the economic opportunity that homeland security presents. It is important for all Americans to remember that when the terrorists struck on September 11, 2001, one of their goals was to cripple the U.S. economy. We must remember this and change our mindset to make protecting the homeland a mission that moves our economy forward."

Another article that immediately sprang to mind when I saw this article yesterday is the German Law Journal's interview with Giorgio Agamben:

Agamben: At first glance it really does seem that governance through administration, through management, is in the ascendancy, while rule by law appears to be in decline. We are experiencing the triumph of the management, the administration of the absence of order.

The interview slides off into theory land pretty quickly, but Agamben's linkage of the state of exception to systems theory and management, rather than governance seems to fit what is going on pretty well.

[dmbeaster]

We are already have some idea on how this type of stuff can be misused. Cue J. Edgar Hoover, except that his ability to gather such stuff was primitive by today's standards. But what he was able to gather, he was more than happy to misuse for his own personal agendas.

We're now recreating the Hoover era in illegal surveillance of US citizens.

Imagine this -- the FBI goes to pull a warrant for a search based on this improperly gathered inforamtion. In other words, would be be legal to conduct the search based on info gathered in this manner?

This is another example of one of the evils of the Patriot Act. It suspended normal search and seizure rules under the guise of national security, but the logic justifying it was the info was being used for counter-terrorism and not criminal prosecution. How easy it is to then start using the info for other criminal prosecutions. It just becomes routine, and the Fourth Amendment goes with it.

[hilzoy]

dmb: hey: we have just declared that the poisonous tree is not, in fact, poisonous, and so its fruit can be eaten all day long.

And as I have mentioned before: as someone who was in fact surveilled for political purposes (my Dad, not me, being the political miscreant, according to Nixon), trust me: it is no fun at all to think that (in my case) all my idiotic adolescent thirteen year old phone calls (about all the crushes on all those unfortunate guys that I hardly dared discuss even with my closest friends, lest the earth open up and swallow me) could have been listened to by FBI agents, just because my Dad had the unmitigated gall to oppose, publicly, one of Nixon's SC nominees.

I do not want my country to be like this.

[Gary Farber]

"I do not want my country to be like this."

My mother was still entirely paranoid and as emphatic as can be right through the Seventies that I not mention to anyone anywhere anything about her history with the Communist Party. She was an almost life-long employee of the NYC Board of Education (as was my father, untile he succeeded in getting fired for being crazy; and you have to be extremely crazy to get them to do that), which administered loyalty oaths, until she retired in the early Nineties.

[Gary Farber]

That's spam above, in case anyone hasn't noticed.

[hilzoy]

Oops -- in deleting the spam, I transformed Gary's last comment into either an inaccuracy or unintentional self-deprecating humor ;)

[liberal japonicus]

Gary,

I'm curious what point you want to make with your 4:46 comment. I get the impression (probably wrongly) that you are suggesting that this sort of thing has gone on for some time, and hilzoy is being naive. I agree that the impulse to monitor and keep tabs on is imbedded in the notion of the state, but with the ability to process huge amounts of data, 'my country like this' takes on a different tenor. If I misinterpreted your anecdote, my apologies.

[liberal japonicus]

Not only is someone watching, but they seem to have baseball bats

[Gary Farber]

"I get the impression (probably wrongly)"

Correctamundo.

The "intention" of my comment was of the "yes, this sort of thing sucks, doesn't it?; here's a small example from the life of me and mine" family of sharing.

For the life of me I don't see what words in that comment led you to read what you read in, but such are my poor communication skills, as well as the usual blind spot about one's self.

[liberal japonicus]

For the life of me I don't see what words in that comment led you to read what you read in

Interesting question (assuming that there is the question 'what do you mean?' underlying your comment)

It was the juxtaposition of your comment with hilzoy's that gave me the impression I took away. Generally, (at least in my experience) communication can't be reduced to atomistic predicates. Thus, if I'm barbecuing chicken outside, I come in and find myself distracted by something, and return to find my chicken pieces the color and hardness of charcoal, and my wife says 'if you stay out there and watch it, you chicken might not get burnt', the timing of that comment changes it from an anecdotal piece of information to something else entirely.

Given that you quoted hil saying 'I do not want my country to be like this', the relating of an anecdote about your parents (which sounds extremely interesting, I should add), who, I am guessing from your previous comments, joined the Communist Party in the 30's, sounds (by juxtaposition, not by the actual content of what you wrote) as if your reply is 'you may not want it, but you've already got it'

I would also suggest that this is why I don't understand at all your habit of telling us that you've already blogged about something, because, as a point of information, I have no idea what you are trying to say. If you are simply saying that you read and noted the article first, I'm not sure what use that is, especially when it is not noted if you argree or disagree with the person's take on the article. As always, de gustibus non est disputandum.

[Jackmormon]

The difference between GF's parents' surveillance and today's is that so much information is digital. It is more easily obtained, more easily saved, more easily searched, and more easily linked. This is the degrees of separation from Kevin Bacon game with indefinite detention as the prize. Because the information can be so much more easily tracked, more people can be monitored. The injustice may be the same, but the scale will be different. And I'm getting pretty pessemistic about the American people's capacity to resent this tracking: we've accepted the centralized credit industry, the customer tracking systems of Amazon, GPS monitoring systems in cellphones, thirteen year-olds maintaining blogs, and the list of modern conveniences goes on.

It's considered by my students to be somewhat old-fashioned to pay for a sandwich in cash. Every big chain store wants to sign you up for a member card. They insinuate that you'll get discounts, but if you talk to a clerk in an unguarded mood, they'll admit that they simply want to track what you buy. Hey, it's all good, all in the name of convenience, and why shouldn't the government know what Rite Aid knows?

During the more paranoid moments of my acid years, I used to think that it was alright that I was being videotaped and registered from every angle at every moment because nobody was able to coordinate all the cameras and registries. I think that in one particularly fractured moment, my thinking ran: "the central eye is schizophrenic, man." Now that I'm mostly lucid, I'd really prefer the central eye to be schizophrenic, if we're to be so tracked at all.