Casting a digital driftnet over freedom

Sunday, May 21, 2006

Have you ever been electronically frisked? Or digitally probed?

It’s hard to tell, of course, since you don’t feel a thing.

That’s because government agents who sift through the megabytes of data that
ordinary citizens spin off in their daily routines do their work secretly,
silently and from far away.

As more and more of your personal life is translated into a digital
existence, your government becomes more and more interested in that virtual
persona, whose rights have yet to be clearly defined.

Chances are, in fact, that you would never know about a possible invasion of
your personal privacy, even when government investigators put your data-self
through an algorithmic lineup to see whether a “suspicious pattern” turns

But it would be difficult not to know that government agencies are hoovering
up massive amounts of personal data, usually with the help of private companies
and their customer databases. A numbing number of news articles in recent weeks
reveal just how prevalent this investigative technique has become.

Last week, USA TODAY reported a National Security Agency program to
collect from telecom companies calling records on millions of Americans, to
check for networking “patterns” that might help track down terrorists or reveal
suspicious activity.

The FBI reports that it has used national-security letters – meaning no court
approval was necessary — to pore secretly through the bank, credit-card,
telephone and Internet records of 3,501 citizens and legal residents.

The Foreign Intelligence Surveillance Act court reported to Congress that it
approved a record number of electronic surveillance and physical searches in
2005. The court received 2,072 applications to conduct such searches and
approved all 2,072. There were 1,754 such warrant applications the year

The FCC reminded companies that provide high-speed Internet access and
Web-based phone service that they have until May 14, 2007, to fix their systems
so law enforcement agencies can install wiretaps.

Rep. James Sensenbrenner, R-Wis., is proposing legislation requiring Internet
service providers to maintain records on individuals’ online activities for the
use of police in criminal cases.

These most recent dispatches from the digital front come after the president
last December confirmed reports in The New York Times that he had
authorized the NSA to intercept telephone and e-mail communications between
residents in the U.S. and suspected terrorists abroad without first seeking a

Such tactics cast a wide net for vaguely realized reasons and, as far as we
know, no significant yield. If these intrusive techniques actually made us safer
or prevented terrorist attacks, then government law enforcement officials might
be better able to justify these programs. Still, they argue forcefully that such
investigative approaches are legal and justified by the troubled times we live

Others are not so sure.

Polls in the last few days showed significant numbers of Americans alarmed by
the news of the telephone companies’ cooperation with the feds on providing
calling records. Political leaders from both sides expressed concern. There were
calls for the FCC to investigate, from within and outside the commission. A
number of class-action lawsuits have been filed against telephone companies for
violation of customer privacy.

Whether legal challenges to such surveillance will succeed is much in

The Electronic Frontier Foundation has filed suit accusing AT&T of
working with the U.S. government to conduct illegal electronic surveillance. On
May 17, a federal judge denied a request by EFF to release documents it claims
show that AT&T allowed the NSA to attach equipment to telephone circuits in
San Francisco to facilitate “vacuum-cleaner surveillance of all the data
crossing the Internet.”

On May 13, government lawyers submitted under seal a motion for dismissal of
the EFF suit. The government reportedly will invoke the state-secrets privilege
to derail the legal action without ever having to defend itself in open court or
present evidence that it acted within the law.

Aside from invasion of privacy, such activity significantly affects innocent
Americans’ constitutional rights, especially when it comes to such protected
First Amendment activities as checking out material from the library, feeling
free to call or receive calls as you wish, visiting Web sites and conducting
Internet searches without worry, and freely associating with others.

And there is a real threat to the press’s ability to gather and deliver the
news in recent reports that phone calls to and from journalists at ABC News,
The New York Times and The Washington Post were being traced as
part of the FBI’s investigation of leaks of classified information.

In an op-ed article in USA TODAY earlier this week, legal scholar
Jonathan Turley wrote that “The Framers gave us a free press as the final safety
net if all other checks and balances in the three branches of government

That is, if the safety net doesn’t get all tangled up in the government’s
digital driftnet.

Paul K. McMasters is First Amendment ombudsman at the First Amendment
Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail:

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