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To get to the point: there is nothing — nothing at all — in any recent law or legislative action that will in any way weaken the police state structure our government has put into place for rapid deployment. You are not any more free than you were last week and, no matter what the Congress has done with the expired provisions of the Patriot Act or the newly developed and Orwellian-named “USA Freedom Act”, you are not going to be any more free next week.
This week’s big news is the expiration of the Patriot Act or actually a few of its provisions, since this humongous illustration of a fascist’s wet dream is comprised of hundreds of laws that expire at different times. The provisions that have expired are, however, significant because they involve phone data capture that affects every U.S. citizen. The Congress had to renew those measures and they didn’t, so the provisions are dead. In his most recent contribution to TCBH, my colleague Dave Lindorff presents a fuller picture of what those expirations really mean (and don’t).
The expirations make the USA Freedom Act, which the Congress has now passed in apparent lieu of the expired Patriot Act provisions, apparently important. In fact, reading the commercial media, one would think that democracy lost had now been found and reinstalled. Reflecting that buzz, Business Insider said the vote “significantly reigns in the federal government’s ability to spy on citizens”.
But the USA Freedom Act is basically a public relations and discourse-control maneuver that changes almost nothing about surveillance or repression. It is the culmination of a cleverly orchestrated campaign of diversion which positioned the spying as an intrusion into the lives of the average citizen. It’s certainly that but its true purpose is to gather information on opposition movements. So, while the law takes a small step back on general spying, it actually entrenches the data-collection on movements of protest and change by maintaining it and making it permanent.
Rather than a cause for celebration, this is a blaring alarm.
The hoopla is no surprise. After the revelations from whistle-blowers spewed like a volcanic eruption, the government began paying public attention to something it had been privately doing for more than a decade: illegally collecting data on all its citizens and much of the world’s. For years now, it has used voracious data-gathering programs that tap Internet lines, hack servers and storage units and deploy a variety of tools to acquire every email sent over several of the most popular services (including the ubiquitous Gmail).
The revelations about all of this computer-based spying was trumped, however, by the revelations about phone data capture. The government has been capturing the numbers we are calling, the time of the calls and where we are when we make them. They capture this for every call made.
Ironically, the screaming headlines about the cellphone spying ignored the most important and frightening aspect of the story: the coordination among the various capture programs. It is here that the weakness of the Freedom Act measures becomes obvious. The problem isn’t that everyone is targeted, the problem is who the real targets are.
For example, the government detects an email from you to someone in France that uses the word “protest”. You are now tagged and your data is put into a database for analysis: basically a quick review of what you’ve written. According to Edward Snowden, the analyst decides whether the email is worth investigation and may then authorize a “data match” across all the programs of data-capture. The analyst then pulls all your stored files captured by a program like PRISM (which captures data from servers), all your search patterns from Google search and all the phone numbers you’ve called on your cell. There is a lot more the analyst can tap but that’s just a basic example.
If the analyst finds anything suspicious, your case will be kicked up to a senior analyst (like Snowden before he jumped sides) who determines whether an investigative file should be opened. If you are assigned a file, your information is shared among about 140 intelligence and law enforcement agencies. Most of the time, they do nothing with this information but they have it stored and organized: ready for use if you do something the government wants to stop.
That, essentially, is what the revelations told us. It was worse than our worst nightmare.
Pinned to the thorny wall of public outcry after those revelations, our elected officials began holding hearings, making statements, promising reform and throwing verbal darts at the “intelligence” guys they had hired to do this to us in the first place. President Obama, certainly the most computer-literate president in history, expressed shock at what his predecessor George Bush had put into place and promised that it would be reformed. That Bush had to, by law, give Obama full briefings on every aspect of this program (and certainly did so) casts suspicion on Obama’s surprise.
For its part, our Congress thundered with fierce debate. Some of the Democrats in the House went virtually aploplectic. Nancy Pelosi, one of the Congress’s most powerful Democrats, expressed shock and revulsion. But Pelosi, as leader of the House’s Democratic caucus, was being briefed about this stuff for years. Her contention was that she never got the gory details but, knowing these programs were active, why didn’t she request those details?
It’s more likely that they all knew more or less what was going on but their reading of the political thermometer told them that the people of this country were still in post 9/11 shock and didn’t mind surveillance. The political thermometer is always a few degrees off when you’re sitting in Washington blowing hot air on it and that misreading of public opinion became obvious when the protest against the surveillance programs escalated from a scream to a thunder. It drowned out the moronic arguments from some officials that revealing the government’s breaking of laws and trampling of its citizens’ rights somehow hampers our ability to protect ourselves and puts the lives of American intelligence and military people in danger. Few were swayed.
Congress and the President had to do something. This week, they did.
The Patriot Act provisions that went vapor include, among several grotesque abuses, the group of laws in the Act’s Section 215 that allow mass data capture by phone. Political survival instincts told these politicians that they couldn’t extend those measures and they let them lapse in a rare act of bi-partisan collaboration.
That collaboration and the equally bi-partisan approval of the Obama-written USA Freedom Act was a brilliant dance of disinformation. You would think, from the statements and the coverage, that something had actually changed. Even the august Electronic Frontier Foundation issued a rather strained statement about this being a “first step” toward rectifying the problem. That “small, first step” argument is now the most frequently repeated one and it misses the entire point.
While the Freedom Act has many provisions, its main data-capture provision bans the government from indiscriminately collecting phone data. That seems great except the law then compels phone companies to capture and store the data. The government must then go to court to get data on a specific individual from the phone company. Still sounds good until you refer back to what the description above about how they do this.
The courts that decide on these collection subpeonas are the same ones that allow massive data capture on your computer. That remains the major motor of the surveillance and it’s not mentioned in this law. With computer data capture, government analysts can determine who is an organizer or activist, for example. To get your phone records, the government must now show the court that, in your communications, you used words that could tie you to international terrorism. While this is supposed to be an improvement, it is the criteria already used by the courts that have authorized the collection of data on millions of people; there’s no change there.
All they have to do is tell the court that they have pulled your data for cause from an email because of the presence of that word and the court will approve pulling your phone records. The fact is that, despite all the cheer-leading about USA Freedom, it’s the government that continues to determine whose phone information will be pulled.
While it’s true that most cellphone data will not be retained by the government as it once was, it’s also true that it doesn’t matter because most of that data isn’t what the government is after. The target data is information about activists and movements and opponents of its policies. The National Security Agency captures all data because it wants yours. Most people in a society don’t have to be repressed, just those of us who want to change it.
The brilliant trick here is that the government has again managed to split most of the population from its movements. But there’s one more trick they’ve played.
When people talk about “the first step”, they are assuming there will be more steps. But the U.S. Freedom Act, unlike the Patriot Act, has no shelf life. Its provisions are not subject to expiration and automatic review. So how do we know there will ever be a “second step”? Significantly, the President, who appears to have coined the phrase “it’s a first step but we have to do more”, never said anything like that in commenting on the new law. His comments treated this as a finished product.
What’s more, the federal Court of Appeals has ruled phone data capture by the government unconstitutional; that is now dead in the water. “The Senate just voted to reinstitute certain lapsed surveillance authorities – and that means that USA Freedom actually made Americans less free,” David Segal of the civil liberties organization Demand Progress said. “…it does not end mass surveillance and could be interpreted by the executive branch as authorizing activities the U.S. Court of Appeals for the 2nd Circuit has found to be unlawful.”
Perhaps the most serious threat here is the distraction it represents. U.S. citizens are a bit more protected from the government hoarding information about our casual phone calls to friends and family but the left-wing movement in this country (and the world) is still very much a target and the programs that spy on us are alive and frighteningly well.
Alfredo Lopez writes about technology issues for This Can’t Be Happening!