Phone record fury just one sign of how privacy is a thing of the past

 

McClatchy Washington Bureau

Welcome to the new normal, the U.S. national security state that’s grown like mad since the 9/11 terrorist attacks nearly a dozen years ago.

Personal privacy has shrunk. Government secrecy has grown. Law enforcement intrusions are commonplace, both overt and covert.

And while airport security lines hint at how life changed following Sept. 11, 2001, the full scope and apparent irrevocability of the changes nearly defy description. Street cameras track your movements. Strangers can read your emails. Police can spy on your political gatherings.

And it’s all become so commonplace that most of the time, like the proverbial frog in a pot of warming water, we take it for granted.

“Some of the impacts have been obscured,” Steven Aftergood, director of the Federation of American Scientists’ Project on Government Secrecy, said Friday. “One could say that personal privacy has been compromised for years, but we are only now becoming aware of it.”

But even in this new normal, a shock or two can awaken the complacent. That’s what happened this week, in a one-two punch.

On Wednesday, Britain’s Guardian newspaper revealed that the National Security Agency is collecting telephone records of tens of millions of Verizon customers. On Friday, the Guardian and the Washington Post reported that the NSA is tapping directly into the central servers of nine companies including Microsoft, Yahoo!, Google and Facebook.

The ensuing uproar provoked President Barack Obama to offer a defense.

“I think it’s important for everybody to understand . . . that there are some tradeoffs involved,” Obama said Friday in San Jose, Calif. “You can’t have 100 percent security and also then have 100 percent privacy and zero inconvenience. You know, we’re going to have to make some choices as a society.”

In his first remarks on the pair of surveillance program disclosures, Obama said he welcomes a debate but insisted that the nation must strike an appropriate balance between security and civil liberties.

Elizabeth Goitein, co-director of the liberty and national security program at the Brennan Center for Justice at the New York University School of Law, said she hopes this week’s revelations serve as a wakeup call for Americans. But, she said, while she welcomes Obama’s desire for a debate, she noted that it’s difficult when the programs have already started.

It’s also a difficult debate when federal officials don’t show all their cards.

In 2011, the federal government spent $11.3 billion on security classification matters, according to the annual Information Security Oversight Office report. This was about three times the $3.7 billion spent on security classification matters in 1999.

The secret-keeping complicates the public’s ability to figure things out.

Consider for instance, how the chairman of the House Permanent Select Committee on Intelligence, Rep. Mike Rogers, R-Mich., strongly defended the telephonic record-gathering.

“Within the last few years, this program was used to stop a terrorist attack in the United States,” Rogers said Thursday. “We know that. It’s important.”

But Rogers, a former FBI special agent, provided no specifics about the allegedly thwarted terrorist attack, though news agency accounts say it involved a much-publicized alleged plan to bomb the New York subway system by a man living in Denver. Najibullah Zazi, an Afghan-born U.S. resident, pleaded guilty to the plot in 2010.

In the new normal, political debate can be one-sided.

In a similar vein, secret courts make key decisions behind closed doors and say very little about them.

In 2000, before 9/11, the Foreign Intelligence Surveillance Court approved 1,003 applications for secret wiretaps and physical searches, according to the court’s sparse annual report. Last year, the secretive court approved 1,789 applications for electronic surveillance and an additional 212 applications for secret access to business records – a 99.5 percent increase.

The details of the court’s actions are, of course, secret.

So are the national security letters issued by the FBI to compel production of financial and other records. Under provisions of the Patriot Act, recipients of the letters are prohibited from telling anyone about them. In an important but little seen decision issued in March, U.S. District Judge Susan Ilston in California ruled that the national security letter’s non-disclosure requirement violated the Constitution.

“The NSL non-disclosure provisions significantly infringe on speech regarding controversial government powers,” Ilston wrote in a case brought by the Electronic Frontier Foundation, a San Francisco-based nonprofit.

In 2000, the FBI employed roughly 10,000 special agents. Now, reinforced by bigger budgets, the FBI employs about 13,000 special agents. The nature of their work has changed, as well.

“Since the events of September 11, 2001, the FBI has transformed from a law enforcement agency to a national security and law enforcement agency,” the bureau stated in its annual budget justification.

Overseas spying by the United States, too, has increased dramatically, and with it has come all kinds of budgetary and policy consequences. The total civilian intelligence budget, which was $27 billion in 1998, has jumped to about $54 billion, according to the Director of National Intelligence.

Note the name: the Director of National Intelligence was a position that didn’t even exist prior to 9/11. Neither did the now-sprawling Department of Homeland Security or its Transportation Security Administration.

The TSA’s airport screeners have been the primary reminder for many Americans of how the airplane-hijacking terrorists of 9/11 tilted U.S. behavior.

Consider what happens at the airport. Travelers remove shoes, exposing their socks. They remove belts, exposing their bellies. They empty pockets, exposing their private change. They stand, obediently, in a scanner that shows their body image, or they submit to being patted and touched by a uniformed stranger.

“The enhanced pat-down procedure, if done non-consensually, would amount to sexual assault in most jurisdictions, and the intrusion of peering under his clothes would be similarly illegal,” Harvard Law School students Jeffrey H. Redfern and Anant N. Pradhan declared in a 2010 lawsuit.

An appeals court heard arguments in the case in April, with the Obama administration noting that the backscatter X-ray scanner that the law students found objectionable has since been phased out. In the meantime, though, facial recognition software and similar tools proliferate, even as questions are raised about their accuracy.

The government’s National Institute of Standards and Technology, for example, found false-negative rates for face-recognition verification of 43 percent using photos of subjects taken just 18 months earlier, according to the American Civil Liberties Union.

Civil libertarians say that Americans can’t push back if they don’t even know how their freedoms are eroding.

For example, they say, the public was only able to fight the full-body scanners that appeared at airport security checkpoints in 2007 because they knew they existed. The TSA recently announced it was scrapping the scanners in lieu of machines that only show generic images of bodies following complaints by Congress and privacy-rights activists.

Sen. Bob Corker of Tennessee, the top Republican on the Foreign Relations Committee, said he remains concerned even following a classified briefing this week by intelligence officials.

“My support for anti-terrorism provisions has been based on the understanding that our government would be targeting foreign terrorism suspects under strict limits and with appropriate oversight and protections for the civil liberties of innocent Americans,” he said.

But supporters of wider surveillance note that America had not sustained a terrorist attack on U.S. soil since 2001 until the bombing at the Boston Marathon in April. Some have been thwarted, they say. And surveillance can help solve crimes, too.

Nowhere is that more apparent than in Boston. The cameras along the Boston Marathon route, authorities say, helped them gain information about possible bombing suspects and could be used to prove the case against 19-year-old Dzhokhar Tsarnaev.

Manhattan has more than 4,000 cameras, according to the ACLU. Chicago has 10,000 cameras, according to the ACLU. Other cities are, likewise, arming themselves.

“This is the world in which we live in: People are trying to come to our nation and kill us,” said Sen. Lindsey Graham, R-S.C., a member of the Senate Armed Services and Judiciary committees. “And we need to find out what they’re up to before they do it. They have to be right only one time. We have to be right all the time.”

Email: akumar@mcclatchydc.com, mdoyle@mcclatchydc.com; Twitter: @anitakumar01, @MichaelDoyle10

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