US Government surveillance is already in your living room

A recently disclosed classified law enforcement document shows how local, state, and federal agents call into private homes, record the conversations, and prosecute the respondents, all without a search warrant or court order.

A sensitive Department of Justice document obtained by a Freedom of Information Request (FOIA) shows that to begin recording your phone calls and chats for prosecution 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 might think favorably about something.

The predilection clause in 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 for future investigation.  Once you are at their targeted site or they find you in a chatroom they will begin soliciting you to commit a crime; subtlety at first, then more boldly once they have you on tape…and you will be liable even if no crime was ever committed.

With the revelations of former NSA contractor Edward Snowden to the The Guardian newspaper over the last few months 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. 

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 was 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. 

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 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 in cyberspace and harvest information and suspects for prosecution.  These taskforces are the action arm of the programs identified by The Guardian and already impact ordinary U.S. 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 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. 

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 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, or someone who suspects you might use drugs 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 wanting to protest a government activity, 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.

According to Chris Decker, a criminal and civil rights attorney that has followed these developments, 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.

 

Betty Walker, the FOIA clerk in Colorado that responded to a request asking how many saved digital files had been accumulated said, “I have discussed this with Police Department Personnel. 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.”  Walker 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.”  Walker did say that it would cost several thousand dollars to find and copy all the recorded conversations.

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 the magnitude of the invasion of privacy is staggering.