With the revelations of former NSA contractor Edward
Snowden to the The Guardian newspaper over the last month the veil of secrecy
has been partially lifted off the U.S. Government’s intrusive and far reaching surveillance
programs that collect private information and communication through cellphone
carriers and internet providers.
This week Reuters reported how NSA and DEA
information collected through these means was funneled down to local law
enforcement for the prosecution of American citizens for non-national security
crimes. What was more shocking is that
the government encouraged and coached local law enforcement how to lie to
judges and defense attorneys about the source of the information that resulted
in prosecution.
Through the disclosure of previous Top Secret
documents, The Guardian outlines the NSA’s PRISM program that collects
trillions of bits of communication with the aid and consent of U.S. internet
and social networking companies. Along
with the PRISM program, the government has also been grabbing telephone
communications through a continuing Top Secret court order authorized by the
Foreign Intelligence Surveillance Act (FISA).
The revelations of Snowden and Reuters are sobering,
but they are only the macro picture of how the government invades and records
personal privacy every day. The
Department of Justice has also found that funding and coopting local and state
law enforcement into fusion cells and taskforces greatly enhances their ability
to collect without judicial oversight and prosecute a wide number of crimes
that never actually happen.
An example of this federal apparatus is the Internet
Crimes Task Force. Through the Patriot
Act and with federal stimulus dollars the Department of Justice has created a
web of investigators that create fictitious criminal activity on the web and
harvest information and suspects for prosecution. These taskforces are the action arm of the
programs identified by The Guardian and already impact ordinary citizens every
day.
Jay Stanley, a
Senior Policy Analyst with the ACLU, wrote in an op-ed for Reuters with Ben
Wizner explaining why government access to computer and phone data is a
significant invasion of privacy.
“A Massachusetts Institute of
Technology study a few years back found that reviewing people's social networking contacts
alone was sufficient to determine
their sexual orientation. Consider that
metadata from email
communications was
sufficient to identify
the mistress of then-CIA Director David
Petraeus and then drive him out of office.
The "who," "when" and "how frequently" of communications are often more revealing than what is said or written. Calls between a reporter and a government whistleblower, for example, may reveal a relationship that can be incriminating all on its own.
Repeated calls to Alcoholics Anonymous, hotlines for gay teens, abortion clinics or a gambling bookie may tell you all you need to know about a person's problems. If a politician were revealed to have repeatedly called a phone sex hotline after 2:00 a.m., no one would need to know what was said on the call before drawing conclusions.”
The "who," "when" and "how frequently" of communications are often more revealing than what is said or written. Calls between a reporter and a government whistleblower, for example, may reveal a relationship that can be incriminating all on its own.
Repeated calls to Alcoholics Anonymous, hotlines for gay teens, abortion clinics or a gambling bookie may tell you all you need to know about a person's problems. If a politician were revealed to have repeatedly called a phone sex hotline after 2:00 a.m., no one would need to know what was said on the call before drawing conclusions.”
The collection
of metadata and its analysis can give the government intimate looks into a
person’s private life…but what if it is the government that is making those
2:00 a.m. sex calls into private homes, recording conversations without a
warrant or subpoena, holding the records indefinitely, and then prosecuting the
person that answered the phone for any suspected criminal activity discussed…real
or imaginary.
The
compromising phone calls could then be used to coerce the individual to quit
their job, perform a task for the government, or for criminal prosecution.
This is not just a scary hypothetical it is actually
happening right now. The Colorado
Defense Bar found that by 2009 there had been over 2,000
arrests and nearly 10,000 forensic investigations based on invented crimes
created by the Department of Justice and its subordinate taskforces. These investigations would have included the
wide-ranging investigative methods described in The Guardian reports, but they
also would have included far more intrusive methods often allowed or overlooked
at the local and state law enforcement level.
Operating
“under the color of law” these agencies can call directly into your home under
a false identity – let’s say a secret online lover found while surfing adult websites,
or someone who suspects you might smoke pot so they find you online, because they know your online hangouts,
and offers you a good deal on some weed, or a disgruntled political action
group, or maybe even the politician’s sexy chat partner mentioned in the ACLU
report - once they get you on the phone or online they try to coerce you into
talking about illegal or embarrassing subjects.
As soon as you take part in the conversation you are criminally
responsible for everything you say
as if you were actually committing a crime.
From 2003 - 2010
the Department of Justice poured over $160.4 million tax dollars into
61coordinated task forces representing over 2000 federal, state, and local law
enforcement agencies. In 2009 this program
received $50 million through the Recovery Act alone and had a total budget over
$75 million; a 471 percent increase over previous years.
The program
produced over 230,000 law enforcement, prosecutors, and contract professionals whose
job it is, in part, to encourage illegal thought and conversations through
deception and then use the broad powers given under the Patriot Act, FISA, and vague
state laws to prosecute.
Every
conversation is recorded and stored indefinitely without the knowledge of the
person being investigated. If the
suspect is not arrested, they will never know that their most intimate thoughts
have been recorded, saved, and warehoused by the government. In Colorado alone there are over 60 partner
and affiliated agencies that exploit the internet and phone systems to make
arrests without a search warrant, court order, or subpoena.
A classified Department
of Justice document obtained by FOIA request shows that to begin recording your
phone calls and chats the government only needs a subjective determination of an
“investigative interest” based on “suspicion” or suspected “predilection” to criminal intent. The government no longer needs probable cause
to start investigating and turn your digital life upside down all they need is
a suspicion that you think favorably about something.
The predilection
clause of the investigative protocols means that law enforcement can now set up
false sites or profiles that try to entice you to a site the government thinks
you might have an interest in or they will record your URL when you use certain
search words. Once you are at their
targeted site they will begin soliciting you to commit a crime…and you will be
liable even if no crime was ever committed.
A law
enforcement officer in Colorado responded to a FOIA request asking how many
saved digital files his office had accumulated by saying, “There are no existing reports reflecting the total number of people
recorded by telephone or internet chat….As such, there are no counts relative
to the total people recorded.” They
went on to say that they didn’t know how long it would take to count all the
recorded communications because, “we
don’t know how many hours of recorded data or number of electronic communications
we have.”
This was just
one of the 60 offices that do these recording in Colorado, multiply that by the
other 61 taskforces and over 2,000 federal, state, and local offices nationwide
that participate in the program and you begin to see the magnitude of the invasion
of privacy.
Recently a member of the Colorado press corps was arrested
while attempting to expose these government intrusions. After following a tip from a whistleblower,
the reporter interviewed a government agent who was pretending to commit
internet crimes. The reporter was prosecuted as an accomplice to the fictitious
crimes invented by the government. It
didn’t matter that the reporter told the agent he knew they were a member of
law enforcement or that he knew the crimes were invented. The reporter was arrested in a violent raid while
driving to confront the government agent and during the trial was not allowed
to call as a witness a colleague who helped on the investigation or submit
written evidence in his own defense.
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