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National Security Becomes National Snoopery Phil Brennan, NewsMax.comUsing the Sept. 11 attacks and the threat of terrorism as justification, the federal government is invading the privacy of Americans on a massive scale, probing their use of telecommunications to uncover intimate information about U.S. citizens proven guilty of nothing. Uncle Sam is besieging the telecom industry with a deluge of subpoenas demanding personal information on subscribers including their credit and financial records, how they use their computers, and even in some cases their photographs. "Consumers should know that the information they give to America Online or Microsoft may very well wind up at the IRS or the FBI," Jeffrey A. Eisenach told Miles Benson of Newhouse News Service. Eisenach, president of Progress & Freedom Foundation, a think tank that studies technology and public policy, said, "Security is not costless." In a recent article in American Spectator, Eisenach wrote that high-speed data networks and new technologies "will indeed soon give governments the ability to monitor the whereabouts of virtually everyone." Operating under new powers to combat terrorism contained in the Patriot Act designed to protect homeland security, law enforcement agencies are making unprecedented demands on the telecommunications industry to provide information on subscribers, company attorneys told Newhouse. The companies and Internet service providers are being faced with a rising flood of subpoenas demanding their subscriber lists, customers' personal credit reports, financial information, routing patterns that reveal individual computer use, and even customers' photographs. In an effort to forestall terrorist threats, police and intelligence agencies are testing the limits of the expanded authority Congress gave them when it passed the Patriot Act, Newhouse wrote. "The amount of subpoenas that carriers receive today is roughly doubling every month – we're talking about hundreds of thousands of subpoenas for customer records – stuff that used to require a judge's approval," said Albert Gidari, a Seattle expert in privacy and security law who represents numerous technology companies. So pervasive has been the subpoena assault that at the Sunnyvale, Calif., headquarters of Yahoo, an Internet search engine used by millions, there is a voicemail prompt that routes law enforcement authorities to a special telephone number they can use to fax subpoenas involving criminal investigations, according to Newhouse. Gone Fishing "Everything is an emergency now," said Gidari. He thinks "a lot of it is just fishing." Among his clients are such telecom powerhouses as AT&T Wireless, AOL, Cellular Telecommunications and Internet Association, Cricket Communications, Nextel, VoiceStream, Cingular Wireless, Rural Cellular Corp., Connexion by Boeing, Terabeam and Infospace. "It's not just volume but the scope of the subpoenas we are seeing, where instead of a rifle shot it's more of a shotgun approach," Michael Altschul, legal counsel for Cellular Telecommunications & Internet Association, told Newhouse. Altschul said telecom carriers were struggling "as good citizens" to comply with complex and comprehensive surveillance demands that sometimes "require adding three shifts around the clock." The subpoenas are beginning to impose a financial burden. In a Bind Edward Black, president of Computer & Communications Industry Association, told Newhouse that the telecom industry was in "uncharted legal waters," caught between customer expectations of privacy and government demands for information. "Either way we might appear to be breaking some kind of law." He is especially concerned with situations when law enforcement authorities "short-circuit" regular legal procedures in their haste to pry information from telecom providers. "I think we must be careful not to create a process whereby using a private company somehow empowers the government to do things they cannot legally do under the new laws," Black said. "In many respects authorities are doing what most Americans want them to be doing," said Stewart Baker, law enforcement and national security specialist at Steptoe and Johnson, a Washington law firm. "In the long run, though, it does mean there's an awful lot of information about people in law enforcement files, not because the police are bad or corrupt, but because an investigation has to track down a lot of leads. "What happens to that information four or five years from now?" he asked. "The FBI doesn't throw anything away." FBI spokesman Bill Carter referred all inquires about the volume of Patriot Act subpoenas to the Justice Department, Newhouse wrote. Justice Department spokesman Bryan Sierra said that it might take "a long time" to determine how many subpoenas have been issued, and that it might not be possible to make the information public. Expanding technology has given law enforcement officers broad new opportunities to gather information.
"It can do the same at any bank, telephone company, hotel or motel, hospital or university - merely upon the claim that the information is `sought for' an investigation to protect against international terrorism or clandestine intelligence activities," he told Newhouse. "Without a judge's order, it used to be they could only get records of someone they suspected was acting on behalf of a foreign government or a terrorist organization," explained Kate Martin, director of Center for National Security Studies, a nonprofit civil liberties group. "Now they can get the records of anyone if they simply say it is `in connection' with a terrorism investigation." Who Needs a Subpoena? Newhouse revealed that law enforcement officials have begun to press sources to deliver information without a formal subpoena. "Investigators have quickly learned that they don't need to leave a paper trail anymore so nobody can judge the lawfulness of a request," Gidari said. America Online spokesman Andrew Weinstein said the company always insisted on a court order, a subpoena or a search warrant before handing over any information. On the other hand, Peter Swire, a law professor at Ohio State University, said he was hearing complaints about "requests for cooperation from law enforcement agencies with the idea that it is unpatriotic if the companies insist too much on legal subpoenas first." Despite the massive threat to the privacy rights of Americans, there has been little public outcry against the expanded government snooping, possibly because "there is something that people just haven't grasped, though government investigators have," Gidari said. "A network economy yields so much more information about personal lives that can be collected and manipulated in ways most people don't understand." "When you engage in this debate, you're either going to fall on the side of saying, `I more or less trust law enforcement even if they don't do the right thing 100 percent of the time, and I don't mind them being empowered' - or you're going to say, `I don't trust law enforcement, and I don't think they should be empowered,"' Robert Atkinson, formerly a senior analyst for the Congressional Office of Technology Assessment, told Newhouse. But it's not simply a matter of trust, said Center for Democracy & Technology's Dempsey. 'Tremendous Power' "We endow government with tremendous power - power to arrest you, take away your property, take away your life, destroy your reputation, take your children away from you," Dempsey said. "I think those powers in the hands of human beings, acting under pressure, with the best of intentions, facing time deadlines in a world of limited resources, those kinds of powers need to be surrounded with a thicket of rules." The problem that law enforcement and intelligence agencies face is not insufficient information - "they are choking on information," Dempsey said. The deficiency is in targeting and analysis. The Patriot Act was based on "the assumption if you pour more data into the system, then the picture would become clearer, and I think that's a false presumption." The danger, said John Baker, a law professor at Louisiana State University, is applying the government's war powers to domestic activities. "We've never had such a mix-up between the president's wartime powers and law enforcement," Baker told Newhouse. "The president has wide powers under war and national defense, but the national government does not have wide powers for law enforcement." According to Newhouse's Benson: "In the '60s and '70s, the FBI ran a massive program called COINTELPRO that included secret investigations, surveillance, infiltration and disruption of political activist groups that were not engaged in illegal conduct, including the civil rights movement, anti-war protesters and feminists. "Today, it is the accumulation of personal information about ordinary citizens that most disturbs civil libertarians, who believe the nation is commencing 'the golden age' of wiretapping." The aphorism "If you build it, they will come" is apt, warned attorney Gidari. "And `they' are the law enforcement authorities."
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