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Day 17

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Memory's Half-Life

A Social History of Wiretaps

by DAVID H. PRICE

With Edward Snowden’s revelations of massive NSA electronic surveillance and metadata mining of domestic telephone and internet activities comes renewed scrutiny of American intelligence agencies intrusions into our lives.  But with this news of NSA and outsourced surveillance comes disturbing measures of Americans embracing governmental monitoring of our private electronic communications.  A Pew/Washington Post poll conducted days after Snowden’s disclosures showed 56% of respondents find the NSA PRISM program’s collection of domestic metadata is “acceptable,” and 45% believe that the government should “be able to monitor everyone’s email to prevent possible terrorism.”  Media and pundits spin an unchallenged narrative of NSA surveillance as a harmless, necessary, and effective tool in network-centric borderless warfare, and we can expect increasing public support for ubiquitous surveillance, as Millennials are further socialized to accept invisible omnipresent intrusions as necessary, and nonthreatening, and normal.

This shift in Americans accepting and internalizing new levels of state surveillance marks a significant departure from American’s century-long distrust of electronic surveillance that has been a long time in the making.  As an anthropologist, I know historical memory is fragile, and even deep-cultural values can shift and be managed by elites; yet our best defense against these memory-wipes begins with historical considerations of how we got here.

In the immediate aftermath of 9/11, the American public hastily abandoned a century of fairly consistent opposition to government wiretaps.  Americans have forgotten that months before the 9/11 attacks, distrust of the FBI was at one of its highest historical levels, as the June 20, 2001 USA Today headline proclaimed “Poll: 4 in 10 American’s Don’t Trust FBI.”  The fear spread by the 9/11 attacks and Bush’s terror wars brought uncertainties that helped cloud memories of intelligence agencies’ historical abuses.

Decades of longitudinal survey data collected by the Justice Department records deeply rooted American opposition to governmental wiretaps with disapproval levels fluctuating between 70-80% during the thirty years preceding 2001.  But on December 12, 2001  the New York Times published a poll indicating that only 44% of respondents believed widespread governmental wiretaps “would violate American’s rights.”  Post-9/11 fears flushed previous civil liberties concerns down the memory hole.

American views on wiretapping are complex, shifting, varied and at times contradictory.  While American culture has long traditions of distrusting government, there are concurrent themes of patriotic zealousness.  But even with such contradictions, it is clear that for the better part of a century most Americans consistently opposed governmental wiretaps—even wiretaps of criminals. Americans had to be coerced into accepting these limits on privacy, freedom of association and expression, and the history of American wiretapping finds consistent efforts by governmental agencies to increase surveillance capabilities.

Electronic-surveillance violates boundaries between individuals and the State.  State eavesdropping and metadata-mining threatens notions of private and public spheres, it dislodges public understandings of freedom, and exposes the naked scaffolding of a police state.  It matters little whether these violations occur with the approval of courts or as blackbag operations: wiretaps and electronic-monitoring are primal violations not easily repaired by legal sanctions or oversight, and their damage is systemic and contagious.

Early Wiretaps

In 1877 the world only had a single telephone line spanning any significant distance, with 778 phones operating on one line connecting Boston and Salem, Massachusetts.  At the beginning of the 20th  Century, about one in a thousand Americans had telephones, but by the 1920s one in a hundred had phones, and at mid-century about one in three homes had them.  Today, the US has more phones than people.  There are over one-billion land-based telephone lines on earth, and an estimated six-billion cellphones.

Until the late-twentieth century’s disbursement of fiber-optic lines and cellphones, wiretaps required little technical equipment or assistance from the phone company.  All one needed to tap a traditional copper-wire phone line was access to the phone-wire and alligator clips to attach to the red and green wires, a speaker or tape recorder.

Americans were outraged when they first learned of law enforcement’s use of wiretaps in the early decades of the 20th century.  During the First World War wiretapping became so commonplace that Congress outlawed the practice despite the obvious threats to national security posed by spies and saboteurs.  After the war dozens of states enacted state law further limiting the electronic surveillance powers of local police.

During Prohibition, bootleggers used telephones to establish lines of communication between producers, distributors, and buyers.  Local and federal police agencies ignored laws prohibiting wiretaps and routinely eavesdropped on phone calls.  As local police increasingly used wiretaps, the federal government took actions to limits law enforcement agents’ uses of wiretaps.  With support from the public, in 1924, U.S. Attorney General Stone forbid the Justice Department from conducting wiretaps.  The Treasury Department, and the Bureau of Investigation resented Stone’s policy and both agencies continued to secretly employ wiretaps.

A 1926 Seattle rum-smuggling case in, which federal agents used wiretaps to prosecute former police lieutenant and bootlegger Roy Olmstead, established important legal rulings regarding the constitutionality of wiretaps.  Though federal agents had illegally wiretapped Olmstead, the trial judge ruled that violations of state wiretapping law were immaterial, and Olmstead was found guilty of several Prohibition violations.  In the dissent to the 1927 Ninth Circuit Court appeal Judge Frank Rudkin found that despite criminals’ threats to the greater public good, when law enforcement officials tapped phones they violated a basic social contract and threatened the foundations of privacy and freedom. Rudkin weaponpriceargued that, “no federal officer or federal agent has a right to take [a person’s] message from the wires, in order that it may be used against him.  Such a situation would be deplorable and intolerable, to say the least. . .if ills such as these must be borne, our forefathers failed in their desire to ordain and establish a government to secure the blessings of liberty to themselves and their posterity.”

When Olmstead made its way before the U.S. Supreme Court in 1928, Seattle’s Pacific Telephone and Telegraph Company’s brief supported the right of illegal smugglers to not have their conversations monitored by the police, writing: “when the lines of ‘two parties’ are connected with the central office, they are intended to be devoted to their exclusive use, and in that sense to be turned over to the exclusive possession of the parties.  A third person who taps the lines violates the property rights of both persons then using the telephone, and of the telephone company as well.”  It is difficult to imagine a contemporary ISP or telecommunication corporation advocating for the privacy rights of their customers, instead, Facebook, MSN, Google and other corporations identified by Snowden feign ignorance.

Though the Supreme Court found against Olmstead in a five to four decision, Justice Brandeis’ dissent warned:  “Crime is contagious.  If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.  To declare that in the administration of the criminal law the end justifies the means—to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution.  Against that pernicious doctrine this Court should resolutely set its face.”

Most Americans were outraged by the court’s blatantly disregard of Fourth and Fifth Amendment protections.  Walter Murphy observed that across the country “the majority of editorials disapproved of what the court had done.”  Even conservative newspapers in Washington communities criticized the ruling.  In the thriving costal logging town of Hoquiam, the conservative Washingtonian wrote, “perhaps it will be necessary for Congress to enact a law which will protect the secrecy of telephone messages by making them inadmissible in evidence in federal trials.”  These sentiments were not those of some left-leaning protector of civil liberties, as labor historian Aaron Goings notes the  Washingtonian “at times used its pages to advocate vigilante action against labor activists.”  Public outrage over the Supreme Court’s approval of wiretaps bridged party lines. At the 1928 Republican Convention, Nicholas Murray Butler was jeered for his defense of the Olmstead decision. There was something innately un-American about wiretapping, even wiretapping bad guys.

Because of broad public disapproval of wiretaps, the FBI adopted a fake public posture regarding electronic surveillance. The FBI’s 1928 operations manual maintained that wiretapping was not allowed and that it was “improper, illegal. . .and unethical.”  While the FBI conducted secret wiretaps, Hoover lied to congress, claiming agents caught wiretapping would be fired.  Hoover consistently exploited high publicity crimes and public fears to push for greater wiretapping powers.  After the 1932 Lindberg baby kidnapping, Hoover expanded the FBI’s reach to include a new class of crimes, and Hoover argued for increased FBI surveillance powers, though the courts were reluctant to grant such intrusive powers.

The 1934 Communications Act federally criminalized the tapping of telephones, and in 1939 Nardone v. the US, the U.S. Supreme Court upheld Congress’s ability to federally outlaw the use of wiretaps.  Yet the FBI and other law enforcement agencies continued illegal wiretap operations, gathering information not presented in court. But Nardone stopped short of repairing the damage inflicted by the Olmstead decision, and wiretaps gained new life as the Second World War years strengthened America’s intelligence agencies while weakening civil liberties.

Feeding Hot & Cold War Fears

American attitudes towards wiretapping significantly shifted during the 1940s, as the war and changes in the class distribution of telephones helped shift judicial acceptance of wiretaps.  In 1940 J. Edgar Hoover attempted to secure new wiretapping powers from Congress but was defeated by FCC Chairman James Fly.  But President Roosevelt issued a secret executive order authorizing widespread Justice Department wire-taps of “subversives” and suspected spies. Hoover used these vague new powers to investigate not just Nazis but anyone he thought subversive.  Hoover’s assistant, William Sullivan, later recalled that during the war, the FBI routinely conducted warrantless wiretaps. “with the country’s future at stake, getting approval from Washington seemed like an unnecessary legal technicality.  Years later, the FBI was still listening in on other people’s conversations without the authorization of the attorney general.”  The social history of wiretaps is a history of mission creep, where FBI agents initially hunting for wartime Nazi spies soon monitored progressive activists fighting racial segregation.

During the 1940s, the telephone became an increasingly ubiquitous feature of American households—not merely the communication instrument of the Elites with whom the Judicial Class consorted and protected.  As the phone became a communication conduit not primarily for the rich, but also for the poor, the judiciary began to reconsider past wiretap opposition.

The FBI used the fears of the McCarthy period to expand its use of illegal wiretaps: targeting not only suspected communists, but a wide range of progressives struggling for civil rights, union leaders, social workers, and progressive religious groups.  But even during the McCarthy Period, the courts did not sanction illegal FBI wiretapping. When the FBI disclosed it had illegally wiretapped conversations between accused Soviet agent Judith Coplon and her lawyer, the appeals court overturned her conviction.  Local police departments expanded wiretapping operations in the 1950s. New York police routinely wiretapped public phone booths during the early 1950s, and launched an estimated 3,500 wiretaps in 1953-54.  Police departments continued to conduct unauthorized wiretaps during the 1960s, and even though Benanti v. US clarified that wiretaps were criminal violations of Section 605 of the Communications Act, federal and local law enforcement authorities routinely tapped phones with impunity.  But they did so with the disapproval of the public and courts.

In 1967’s Katz v. US, the Supreme Court again ruled that the Fourth Amendment protections against unreasonable searches extended to telephone conversations.  The following year Congress added provision in Title III of the 1968 Omnibus Crime Bill circumventing the Katz decision by identifying specific crimes (kidnapping, organized crime, etc.) meriting wiretaps.  In intervening years the list of crimes permitting wiretaps grew with bipartisan support.

The years following Hoover’s 1972 death brought successive scandalous revelations about the FBI and CIA’s illegal intrusions into Americans’ private lives.  The Church and Pike Committee investigations revealed extensive surveillance campaigns directed at Americans engaging in lawful political activities. The American public was outraged at the extent of the CIA and FBI’s illegal activities, but an initial wave of shock gave way to complacency, and congress abandoned meaningful oversight of domestic and foreign intelligence agencies.  With time, many Americans learned to forget these documented instances of CIA and FBI prurient surveillance, harassment, assassination and defamation programs—by 2001, few American’s recalled the FBI and CIA’s abuses that led to the restrictions on domestic intelligence activities that were removed by the Patriot Act.

In 1978, former CIA telecommunications engineer, David Watters, testified before the Senate Intelligence Subcommittee about NSA monitoring and taping thousands of domestic and international phone conversations.  These revelations brought public disapproval and empty promising of congressional oversight.  With ECHELON and Carnivore the NSA and FBI’s capacities for telecommunications surveillance capacities grew unchecked.

One trophy in the intelligence community’s campaigns for America’s acceptance of circum-constitutional procedures was the 1978 establishment of the Foreign Intelligence Surveillance Act (FISA), establishing a secret judicial system charged with authorizing wiretaps and other means of electronic surveillance relating to issues of “National Security.”  The FISA Courts conduct their work in total secrecy.  A 2002 court ruling removed requirements of establishing probable cause before allowing FISA authorized electronic surveillance, and between 1978 and 2004 the FISA’s kangaroo court rejected  5 of 18,761 warrant requests, and last year authorized every received request.

President Carter’s Attorney General Levi limited FBI abilities to investigate alleged “domestic security” violations, requiring external examination of ongoing investigations.  President Reagan evoked fears of “terrorism” as an effective passkey for bypassing civil liberties and judicial procedures.  Reagan’s Attorney General William French Smith rolled-back Levi’s surveillance limits by launching “domestic security / terrorist” investigations for crimes involving two or more people were engaged criminal acts linked to political and social movements. Smith channeled Philip K. Dickian notions of “pre-crime,” and instructed the FBI to “anticipate or prevent crime.”

Though the internet was in its infancy, used primarily my military personnel and on university campuses, until the passage of the 1986 Electronic Communications Privacy Act it was legal to intercept email messages traveling through phone lines. The Act required that all electronic communications have the same legal protections as phone communications—though conversations made on cordless phones were not protected.

Many Americans opposed the 1994 Digital Telephony Act, which required all fiber-optic based switches be equipped to facilitate court approved wiretaps.  The ACLU and Electronic Privacy Information Center organized widespread opposition to the bill, and across the country letters to editors and editorials criticized the bill’s obtrusive features.  There was a stark contrast between the communication industry’s embrace of this Bill and the industry’s stance in the 1927 Olmstead appeal in which the opposed all efforts by law enforcement to tap phone lines.

With little public notice the Reagan, Bush and Clinton administrations each increased the use of federal wiretaps, and the conservative federal judiciary appointed during the 1980s brought little judicial opposition to wiretaps. Throughout the 1980s and 1990s there was a steady increase in wiretaps undertaken by federal authorities, but given the secrecy surrounding FISA approved wiretaps, these numbers only tell a small part of the story. According to investigative journalist and longtime NSA chronicler, James Bamford, offshore surveillance networks such as ECHELON skirted pre-Patriot Act limitations on domestic surveillance by using third-party countries to monitor US citizens’ phones and email.

During the 1980s, corporations increasingly collected data on Americans in ways that post-Watergate governmental agencies were prohibited to do.  After initial resistance, in a brief period of time, American public attitudes shifted from resistance to acceptance.  News reports in the late 1980s that the Lotus 123 Corporation would be compiling and publishing a set of CD-ROM platters containing basic information on the names and addresses of most Americans show Americans seriously outraged over the prospect of such centralized record keeping, but decades later the internet makes such intrusions invisible, voluntary, and inevitable, in ways documenting our national numbing and processes socializing us to accept our loss of privacy expectations.

Revelations during the late 1990s disclosed that the NSA monitored “international” telephone traffic, using computers to scan for keywords.  New encryption technologies for personal computers and other communication technologies led Congress and Clinton to limit communication encryption schemes that would interfere with governmental electronic eavesdropping.  Truly private telephonic or electronic communications threatened intelligence agencies’ abilities to eavesdrop, and limits were placed on the distribution of RSA encryption, PGP freeware, the Clipper Chip and other programs were required to include implanted backdoors and escrowed keys for law enforcement personnel.

In the early and mid-1990s the American public’s protections from electronic surveillance were further eroded by a series of court cases involving questions of whether workplace email had the same privacy protections as a letter or a phone call.  Many of the judges establishing this case law were functionally internet-illiterate and needed even the most basic features of email explained to them in court because they had never used email.  Judges made important decisions realms of social life of which they had no first-hand knowledge and they did not seem to understand arguments that they were abolishing the same expectations of privacy one had when using the telephone or mail in the workplace. As employers gained new powers of workplace surveillance, the working public was trained to accept an erosion of privacy and reduced expectations of electronic privacy rights.  In 2000 Congressman Bob Barr and Senator Charles Schumer failed to garner enough support for a bill to limit employer surveillance of employees in the workplace. But the deprivations average workers can experience in the workplace are different from those experienced by the judiciary, as the U.S. Supreme Court in 2001 ruled to provide the judiciary with privileged workplace email privacy.

Had the judiciary in the early 1990s considered the nature of email communications as being little more than an electronic envelope, America might be a very different country today.  Such connections between expectations of postal and telephonic privacy were made in Brandeis’ Olmstead dissent, anchoring his reasoning for protecting the privacy of telephonic communications, arguing “there is, in essence, no difference between the sealed letter and the private telephone message.” But the post 9/11-world finds little hope that such reasoning will soon protect our emails.

The Patriot Act removed post-Church Committee layers of judicial oversight for federal wiretaps and pen/trap orders (recording numbers dialed); it revoked restrictions prohibiting U.S. intelligence agencies like the CIA from spying on American citizens; enacted roving wiretaps that follow the subjects of investigation; and allowed for heavy online monitoring of email and web-traffic. With the creation of the office of Homeland Security the State gained a centralized agency to coordinate domestic intelligence operations ways only dreamed of by J. Edgar Hoover.  The Patriot Act extended the powers and reach of the FBI and CIA not in a new direction, but along the same continuum long-sought by Hoover and others without past legal hindrances or public opposition. Bush overreached with Poindexter’s failed Total Information Awareness program, as public outcry rose opposing a federal agency empowered to mine metadata, but where Bush failed, Snowden’s disclosures inform us, Obama prevails.

Post-9/11 police gained new surveillance powers.  NYPD  has twice the number of personnel as the FBI, and it has revived its political investigatory unit that was disbanded as the result of a 1985 legal settlement (known as the Handschu Agreement) and now collects political dossiers on individuals across the country and around the world.  State legislatures across the country granted increased local police wiretap powers and they are hiring retired CIA and FBI personnel to advise them on monitoring suspected terrorists, subversives and dissidents.  These shifts connect the present with past surveillance campaigns of the 1940s, 50s and 60s as new targets are once again include activists challenging a wide range of social problems. Anti-war protestors, the occupy movement, Greens, and others from the left and right opposing governmental policies are surveillance targets with these post-9/11 tools.

But one of the most important shifts is that after a century of stiff opposition the American public is learning to surrender their rights to electronic privacy.  Fewer and fewer Americans remember the long historical resistance to empowering our secret political police with such unchecked abilities and resources.

Memory as Defense

With little public debate, the Patriot Act rapidly removed judicial controls limiting America’s domestic surveillance and persecutions.  The restoration of old, and the granting of new, surveillance powers brings new levels of oppressive surveillance for all Americans, but we know that historically such powers are used to monitor those challenging American domestic or foreign policies. Perpetuated fears of terror encourage Americans to forget a past they barely knew, and vague assurances that the rights of the “innocent” will be protected brush aside memories of well documented historical violations of privacy and civil liberties as if these were not structured outcomes.

As cultural beings we are all susceptible to the numbing and routinizing impacts of recurrent events.  Time normalizes what were once obvious atrocities.  Sustaining shock is always difficult, outrage’s half-life is short and the toll of cognitive dissonance weighs heavy.  With time the outrageous and offensive can be seen as the “unfortunately necessary,” the potency of shock is short-lived as once current events become historicized.

The key to understanding the opinion shifts supporting the rise of domestic metadata mining programs and wiretaps is that these developments are less something new than they are part of a long parade of legitimization validating the American intelligence agencies’ campaign to erode constitutional protections against rampant wiretaps. The Patriot Act dismantled the firewall separating domestic criminal investigations from espionage investigations and empowered Homeland Security, FBI and NSA to oversee roving wiretap and surveillance operations without public oversight.

The Snowden leaks confirm what many scholars of American intelligence agencies have long suspected: the Bush and Obama administrations have given the NSA unprecedented surveillance authority to monitor domestic electronic communications. The public’s acceptance of post-9/11 panoptical-surveillance necessitates learning to forget past abuses.  While fear nurtures forgetfulness, fear alone is not enough: fear needs to be managed.  Government- and media-framed analysis help keep much of the nation from remembering a past scarred with constitutional abuses. Television enforced amnesia coaxes the nation to coalesce with the needs of the intelligence-industrial complex, and each new round of Terror Alert Twister shifts fears from Blue to Red to Yellow as we are socialized to surrender rights with greater ease.  David Altheide describes these processes of managed fear as ones where we become “accustomed to giving up civil liberties to surveillance and enforcement efforts by formal agents of social control.”

Sociologist Sigmund Diamond spent decades chronicling the intrusions of intelligence agencies into American academic life and the resulting threats to academic freedom.  For Diamond the collective memory loss of past governmental abuses was an important weapon of the present.  Diamond argued that, “since historical memory is one of the weapons against abuse and power, there is no question why those who have power create a ‘desert of organized forgetting.’ But why should those who have been the victims sometimes act as if they, too, had forgotten?”  America’s historical memory is the crucial battleground in the struggle to regain lost privacy and civil liberties, and those who would engage in this struggle must combat the “desert of organized forgetting” in ways that reawaken America’s battered public memories. But in a nation where education reform relegates the teaching of history as less important than teaching to standardized tests, these historical gaps loom large, and the recapturing of lost historical territory remains a daunting task.

In the novel, Underworld, Don DeLillo wondered whether, “the state had taken on the paranoia of the individual or was it the other way around;” in our world we know the source.  America is now so lost in surveillance that our only choice is between memory-loss and embracing paranoia.

David Price a professor of anthropology at Saint Martin’s University in Lacey, Washington. He is the author of Weaponizing Anthropology: Social Science in Service of the Militarized State published by CounterPunch Books. This essay originally appeared in the June issue of CounterPunch magazine.