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Josh Dratel: Updates in the War on Civilian Privacy

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May 22, 2012

With surveillance cameras on every corner and our smartphones tracking our every move, we've entered a new era of the war on civilian privacy.


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Image from Flickr via jonathan mcintosh

By Josh Dratel

The war on civilian privacy has escalated. Recently, Congress the FAA Modernization and Reform Act of 2012, which allows for the commercial use of surveillance drones in the United States. And in late March, the Obama administration revised guidelines with respect to the U.S. National Counterterrorism Center’s retention of data on law-abiding persons. According to the New York Times, those revisions were designed in part “to relax restrictions on how counterterrorism analysts may retrieve, store and search information about Americans gathered by government agencies for purposes other than national security threats.”

Among the revisions is an increase in the length of time—from 180 days to five years—that the NCTC can, according to the Times, which cited intelligence officials, “retain private information about Americans when there is no suspicion that they are tied to terrorism.” Under the prior guidelines, such information would have to be destroyed after expiration of the 180-day period. Also, as the Times reported, “the guidelines are also expected to result in the [NCTC] making more copies of entire databases and ‘data mining them’ using complex algorithms to search for patterns that could indicate a threat.”

Security cameras increasingly cover every swath of territory; checkpoints, both governmental and private, abound; surreptitious software can capture every computer keystroke; every e-mail is retrievable, and every phone conversation is capable of interception.

The general counsel in the Office of the Director of National Intelligence characterized the superseded guideline period as “very limiting,” explaining to the Washington Post that “On Day One, you may look at something and think that it has nothing to do with terrorism. Then six months later, all of a sudden, it becomes relevant.”

Fair enough. But, hey—wait! Isn’t that “six months” the exact same as the 180 days in the prior guidelines? Nowhere is there a quote from the general counsel, or other intelligence professionals, that says, “Yeah, you collect some information, and then 4½ years later, it has meaning.” That is because “meaning” derived from information that stale is reserved for people who can’t leave their apartment because the piles of old newspapers have completely blocked the path to the door.

Nor could those defending the expanded retention period offer more than a hypothetical example—involving visa applications made years apart—of its utility as grounds for abandoning the 180-day limit. In fact, the only real-world references in support of the change were to Umar Farouk Abdulmutallab, the convicted “Christmas Day” or “underwear bomber,” and Maj. Nidal Hasan, alleged perpetrator of a shooting rampage at Fort Hood in Texas, as justification for extending the retention period. Again according to the Times, the revisions were in part a reaction to the “failure to connect the dots” about Mr. Abdulmutallab.

Yet in neither instance would a longer retention period have been a factor. In the case of Mr. Abdulmutallab, what “dots” were needed beyond his own father alerting authorities that his son was involved in dangerous extremist activities? Similarly, Maj. Hasan’s deployment orders that sent him over the edge were not the result of innocuous information obtained years before. Instead, the military was acutely aware of Maj. Hasan’s problems contemporaneously with them, but opted for a bureaucratic shuffle rather than a genuine attempt at addressing them. .

Rather than acknowledge the cause of those intelligence failures—lapses in judgment and communication (do you see a pattern here?)—the Abdulmutallab and Hasan incidents—probably the most vivid examples of the failure to share, rather than retain intelligence—are paraded as non sequitor excuses for creating a database dedicated entirely to lawful conduct. Might as well cite The Maine as the reason.

Government, importuned by a security-surveillance complex that dominates budgets and creates new markets, both tangible and virtual, has sold the public, and even itself, on the myth of total security if we can only monitor every person, every communication, every movement, every location. That is not a recipe for improved security, but rather a blueprint for the Tower of Babel. It is a conceit that is constantly punctured, whether by Mr. Abdulmuttalab, by Faizal Shazad (the Times Square bomber), or more recently by Mohamed Merah, whom French intelligence, with its zero tolerance policy for extremist ideation, had on its radar for a considerable period before his deadly shooting spree in Toulouse earlier this month.

Also, these revisions do not exist in a vacuum. In light of the revelations of the scope of the New York City Police Department’s surveillance beyond the borders of its jurisdiction, one does not have to imagine the type of information gathered, and the improper uses made of it throughout the five-year period, pursuant to these revised guidelines. One need only to wait for the next disclosure of abuse of intelligence-gathering authority. Indeed, the extended retention period raises the specter of the functional equivalent of Total Information Awareness, a proposed comprehensive Pentagon data collection and mining program that was stymied in 2003 due to privacy concerns.

Another disturbing and unexplained aspect of the revision is the rather long leap from six months to five years, eschewing more modest increments. NCTC did not cite any studies suggesting that five years was more appropriate than perhaps a three-year period (or even than the pre-existing 180-day period, which was instituted only in 2008). Yet that instant recourse to an essentially indeterminate period merely betrays the inherently compulsive, seductive, and limitless nature of the government’s information-gathering. In essence, it parallels a substance abuser’s approach to a perceived problem: “I took this painkiller five minutes ago, and I’m still feeling pain. Let me take another five right now.”

And, of course, the U.S. is hopelessly addicted to information gathering and the surveillance necessary to achieve it. Security cameras increasingly cover every swath of territory; checkpoints, both governmental and private, abound; surreptitious software can capture every computer keystroke; every e-mail is retrievable, and every phone conversation is capable of interception. Your smartphone’s GPS tracks your every move, as do cell sites, your MetroCard, or your E-Z Pass. Your every purchase is recorded and catalogued and disseminated indiscriminately to profile you. Privacy of expression and movement, of habit and taste and personal preference, are a relic of a distant time, let’s say, . . . the 1990’s.

In that context, the revised guidelines reflect a larger, ominous phenomenon. We are totally strung out on surveillance and data collection and so blindly credulous of its purported efficacy that a Stockholm Syndrome has set in. It is not enough that the government or your employer can monitor your every action. Every day, millions willingly post their thoughts—from casual to innermost—on Facebook and other social network sites, providing their friends, families, employers, and government access to every expression of opinion, digitally recorded and preserved for posterity’s prying eyes.

Having grown up in a world in which color television was a luxury, a long-distance call a special occasion, and computers restricted to NASA-nerds with pocket protectors, I remember as an adolescent reading Brave New World and 1984 as if they were cast in some future that was lifetimes away. Through the years, those two titles increasingly became popular vernacular catchwords for the trappings of an impending society in which privacy and freedom would be eliminated. Yet I no longer hear people of my generation refer to either in the future tense. Instead, every day they more increasingly define and describe the present.

Joshua L. Dratel is a criminal defense attorney in New York City, and has been defense counsel in a number of terrorism prosecutions in the U.S. courts. He was the first civilian lawyer to represent a defendant, the Australian David Hicks, in the Guantanamo military commissions. He is also chair of the National Security Committee of the National Association of Criminal Defense Lawyers. The views in the article represent the author’s opinions, and do not necessarily reflect the view of NACDL.

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