Tag: surveillance state
Excerpt: ‘Rogue Justice: The Making Of The Security State’

Excerpt: ‘Rogue Justice: The Making Of The Security State’

The War on Terror has transformed the Department of Justice into an arm of the intelligence community— hijacking an institution charged with upholding the Constitution and the rule of law and using it as legal cover for mass surveillance and torture. No one has detailed that monumental shift in policy like Karen Greenberg, Director of the Center on National Security at Fordham’s School of Law. Greenberg’s Rogue Justice is a deeply-reported expose of the architects of the War on Terror at every level of government. What follows is an exclusive excerpt from the book:

The most unusual thing about the case argued in federal court in Providence, Rhode Island, on June 19, 2008, was not that the court convening it, the FISA Court of Review, had met only once be­fore in its thirty-year history. It wasn’t the way technicians had swept the room for bugs and cut it off from the Internet, turning Court­room 3 temporarily into a Sensitive Compartmented Information Facility (SCIF). It wasn’t the briefcases full of classified informa­tion that the three Justice Department lawyers had physically held on to for the hours-long trip from Washington, or even the intrigue surrounding their journey, which had led at least one of them to lie to his wife about his destination that day. And it certainly wasn’t the argument itself, in which a government lawyer once again asserted that the war on terror could not be fought without restricting Fourth Amendment rights, while his opponent countered that to take away civil liberties in the name of national security was to compromise the very principles for which the war on terror was being waged.

No, the strangest thing was that the lawyer worrying over constitutional rights, Marc Zwillinger, was not from the ACLU or the Center for Constitutional Rights; nor was he representing de­tainees or tortured prisoners. Instead, he represented a large Ameri­can corporation: the Internet company Yahoo! The issue at hand was a government order forcing Yahoo! to “assist in warrantless surveillance of certain customers” by turning over records of their communications. Yahoo! had so far failed to comply with this order, a defiance that was about to cost the company $250,000 a day in fines. But Zwillinger’s argument in court that day wasn’t about the cost or difficulty of supplying the government information about the private communications that passed through its servers in Califor­nia. And it was only a little bit about the consequences to its bot­tom line should its customers discover the breach. Mostly Yahoo!’s objection rose above petty corporate interests and invoked the basic principles of American jurisprudence. The government, Zwillinger told the three-judge panel, was compelling his company “to partici­pate in surveillance that we believe violates the Constitution of the United States.” It was refusing to supply the data on principle. It was evidently one thing for a corporation to amass huge amounts of data on its customers to sell to other corporations—which was, after all, Yahoo!’s business model—and another for that company to be required to provide its information to intelligence agencies. But while the court at least listened to the constitutional argu­ment, it wasn’t buying it. In August, it upheld Walton’s decision. The bar for domestic surveillance might once have been high, but that was before 9/11, the Patriot Act, and the Protect America Act, and, wrote Judge Selya, “that dog will not hunt” any longer. “The inter­est in national security is of the highest order of magnitude,” he ex­plained. So long as the “purpose involves some legitimate objective beyond ordinary crime control,” he continued, there is a “foreign intelligence exception to the Fourth Amendment’s warrant require­ment.” Under this reasoning, the president’s authorization “at least approaches a classic warrant” and thus preserves enough of the in­tent of the Fourth Amendment to be considered constitutional. It would be another five years before Americans—including, pre­sumably, Judge Selya and Solicitor General Garre—were alerted by Edward Snowden to how misplaced their trust was.

Adapted from ROGUE JUSTICE: THE MAKING OF THE SECURITY STATE Copyright © 2016 by Karen Greenberg. Published by Crown Publishers, an imprint of Penguin Random House LLC.

The Nefarious Surveillance State Dangerously Inhibits Self-Expression And A Healthy Democracy

The Nefarious Surveillance State Dangerously Inhibits Self-Expression And A Healthy Democracy

Published with permission from Alternet.

The nefarious brilliance of the surveillance state rests, at least in part, in the fact that it conveys omniscience without the necessity of omnipresence. Since even its verifiable actions are clandestine and shadowy, revealed not through admission but by whistleblowers such as Chelsea Manning, Edward Snowden and Jeremy Hammond, its gaze can feel utterly infinite. To modify an old phrase, just because you’re paranoid doesn’t mean they’re not watching you—especially given that you now have proof. But if you never know precisely when they’re watching or exactly what they’re looking for, can you ever be paranoid enough?

This is, to some degree, the concern of many Americans, according to a new study from Oxford University. The Washington Post reports researcher Jonathon Penney found that Snowden’s leaks about government surveillance had a “chilling effect” on American adults’ internet habits. Penney looked at Wikipedia searches conducted after June 2013, when news of NSA spying programs so thoroughly dominated headlines that 87 percent of Americans became aware of them. In the wake of the story, he found “a 20 percent decline in page views on Wikipedia articles related to terrorism, including those that mentioned ‘al-Qaeda,’ ‘car bomb’ or ‘Taliban.’” The traffic for those pages dropped precipitously after the Snowden files came to light, and continued to slide over the next year, suggesting a “longer-term impact from the revelations.”

“This is measuring regular people who are being spooked by the idea of government surveillance online,” Penney told the Post. “You want to have informed citizens. If people are spooked or deterred from learning about important policy matters like terrorism and national security, this is a real threat to proper democratic debate.”

Those findings bolster those of other recent investigations into how the Snowden revelations have affected, and potentially altered, online behavior. The Post cites a 2015 study by digital rights advocate Alex Marthews and MIT professor Catherine Tucker, who queried internet users in countries around the world about their willingness or reluctance to use certain Google search terms. The researchers concluded that in the post-Snowden era, “users were less likely to search using search terms that they believed might get them in trouble with the U.S. government.”

We’ve long known that the mere suggestion of surveillance can be a powerful, and profitable, determinant of behavior. From Jeremy Bentham’s 19-centuryPanopticon design to the identification of the Hawthorne effect in the 1950s, institutions have made use of real and fabricated all-knowing, all-seeing eyes for profit and productivity, social control and oppression. Until now, there’s been little investigation of the direct link between recent surveillance scandals and how they impact users of new media. These emerging studies prove that just having an awareness of mass surveillance is enough to dissuade ordinary citizens from engaging in perfectly legal actions for fear of unwanted government attention.

For those who require confidentiality to carry out their work, government monitoring is of particular concern. In 2014, the ACLU and Human Rights Watch released a collaborative report based on interviews with lawyers and journalists “covering intelligence, national security, and law enforcement for outlets including the New York Times, the Associated Press, ABC, and NPR.” Those conversations indicated both reporters and their government sources are more fearful of divulging and exchanging information due to new restrictions, including the “Insider Threat Program, which requires federal officials to report one another for ‘suspicious’ behavior that might betray an intention to leak information.” Similarly, widespread government surveillance has eroded many attorneys’ faith in their ability to protect client communications. As a result, members of the press and lawyers have started using costly, time-consuming methods to try to head off government intervention. A few examples are cited in the report, “With Liberty to Monitor All: How Large-Scale U.S. Surveillance is Harming Journalism, Law, and American Democracy”:

[Journalists’] techniques ranged from using encryption and air-gapped computers (which stay completely isolated from unsecured networks, including the Internet), to communicating with sources through disposable “burner” phones, to abandoning electronic communications altogether…As with the journalists, lawyers increasingly feel pressure to adopt strategies to avoid leaving a digital trail that could be monitored. Some use burner phones, others seek out technologies designed to provide security, and still others reported traveling more for in-person meetings. Like journalists, some feel frustrated, and even offended, that they are in this situation. “I’ll be damned if I have to start acting like a drug dealer in order to protect my client’s confidentiality,” said one.

Elizabeth Stoycheff, a Wayne State University professor who focuses on the intersecting points of new media and democracy, recently pointed out that the U.S. now ranks 49th globally in press freedom, according to Reporters Without Borders. “Let that sink in,” Stoycheff advises, writing on Slate. “America, the longstanding beacon of free speech, performs worse than some partly democratic countries in the global south, like Burkina Faso and Niger. Our nation’s whistleblowers and journalists are not adequately shielded from undue prosecution and self-censorship. Nor are our citizens.”

Even the most innocuous online behaviors have been tempered since the NSA’s sweeping data grabs became public. The U.S. Department of Congress polled 41,000 internet-using households about the way privacy and security concerns influenced online activities. Approximately 18 percent named “data collection by [the] government” one of their foremost fears. In a May 2016 press release, the agency states that, along with other trust-eroding issues such as identity theft and fraud-related topics, “45 percent of online households reported that these concerns stopped them from conducting financial transactions, buying goods or services, posting on social networks, or expressing opinions on controversial or political issues via the internet, and 30 percent refrained from at least two of these activities.” The release also notes that “29 percent of households concerned about government data collection said they did not express controversial or political opinions online due to privacy or security concerns, compared with 16 percent of other online households.”

Stoycheff’s own research further bears this last point out. As part of a study released this month, the researcher and her students asked 250 subjects to fill out a survey providing insight into their online habits, political views and personality traits. Participants were presented with a message that indicated, by way of reminder, “their online activities were subject to surveillance by the U.S. government,” followed by a fake (and judgment-neutral) Facebook post about American airstrikes against ISIL. Researchers then asked participants how likely they would be to publicly voice their thoughts on the contents of the post, how they imagined other Americans viewed the topic and their personal feelings regarding government surveillance.

Ironically, those who said they supported mass surveillance (Stoycheff identified these folks as the “nothing to hide” crowd) were actually more likely to self-censor, avoiding expressing any thoughts they felt were out of step with mainstream opinions. “[W]hen these individuals perceive they are being monitored,” she writes in the paper, “they readily conform their behavior—expressing opinions when they are in the majority, and suppressing them when they’re not.” Conversely, those who stated opposition to government surveillance were unaffected by the cautionary message about government surveillance. They posted opinions without regard to how the majority felt, or consistently kept their opinions to themselves altogether. Stoycheff suggested this tendency perhaps exists because the anti-surveillance group consists of people who are “highly educated and vocal about their views regardless of circumstances, and individuals who are so turned off by surveillance that they are unwilling to ever share political beliefs online.”

For the most part, those who took part in the study were less likely to speak out about their feelings if they held minority opinions. That was particularly true for members of racial minority groups. The Washington Post writes that Stoycheff “found that the non-white respondents in her study (who made up 26 percent of participants) were more likely to say that they did not hold majority opinions. That fact suggests that people of color are more likely to suppress their non-majority opinions, as long as they consider government surveillance justified. (The distribution of pro- and anti-surveillance people among non-whites was about the same as it was among whites, with two-thirds in support of surveillance.)”

So not only does the looming threat of government surveillance, real or theoretical, tamp down personal expression, it effectively squelches dissent, promoting a sort of false groupthink that’s frightening for various reasons. What’s more, it further erases the voices of the marginalized, who are already drowned out by those with numbers on their side. All this strikes me as yet another concrete example of the fundamental incongruities between what America says it is and what it does. Add the constant push to expand surveillance powers, and we grow further from that fairy tale ideal all the time.

Kali Holloway is a senior writer and the associate editor of media and culture at AlterNet.

Photo: A police car blocks one of many entrance points into the National Security Administration facility in Fort Meade, Maryland March 30, 2015.  REUTERS/Gary Cameron