Saturday, October 22, 2016


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Government Spying Fusion Centers

Earlier this month, I wrote about a case out of Maryland involving a Florida resident who was pulled-over by Maryland Transportation Authority (MDTA) police, and subjected to harassment and intimidation, all because the driver was the holder of a Florida concealed carry permit. The incident raised serious questions about the clear bias against firearm owners in a state with a reputation for being notoriously anti-Second Amendment. More troubling, is the still–unanswered question about how MDTA police even knew of an individual concealed carry permit issued outside of their state.

As egregious as are the circumstances surrounding the Maryland incident, it is just one of a growing number of examples of how information about individuals exercising their constitutional rights, is being data-based and shared by law enforcement databases as “suspicious activity.”

Following its investigation of the September 11, 2001 terror attacks, the 9/11 Commission cited a lack of cooperation and information-sharing among law enforcement agencies, as a major vulnerability in America’s national security. One of byproducts of the Commission’s recommendations was the creation of more than 40 state and urban area fusion centers. These were designed to serve as localized clearinghouses for the “receipt, analysis, gathering, and sharing of threat-related information” from partners within law enforcement, public safety, and even the private sector.

The selling point for the states (in addition to money) was that access to such a national network of “suspicious activity” data, would improve the safety of local law enforcement, and make them more effective at stopping crime. For the Feds, the collection and analysis of localized threat assessments, and a far larger flow of information from local law enforcement to the Department of Homeland Security, was the driving force. Thus the DHS (in effect, the entire federal government) gained unprecedented access to a vast data trove on private citizens that goes far beyond anything relating to criminal activity, much less terrorism.

Furthermore, by tapping into a “national” exchange of information that is, in part, contributed to by partners in the private sector, the DHS also found a way to circumvent privacy restrictions in the Privacy Act of 1974. Now, DHS can use the efficiency and flexibility of the private sector to mine and analyze data that, by law, it is prohibited from collecting and maintaining on its own. Moreover, national crime database systems such as the Regional Information Sharing Systems (RISSnet) are federally funded, but controlled by state and local level law enforcement entities; adding even more insulation from oversight despite its “critical” role in the overall Information Sharing Environment — the federal nexus of information sharing through which all of this data eventually flows.

The original goal may have been to improve communication between levels of law enforcement, but instead law enforcement has created one enormous Cloud of data on private citizens, that is breathtaking in its scope. This vast database is subject to virtually no oversight or accountability as to what information is collected, who is able to access the data, or how the data is used in “fighting crime.” In essence, this “fusion” has created the same type of shadowy “DarkNet” for law enforcement information sharing for which the federal government has demonized (and prosecuted) the private sector. The end result leaves local law enforcement with resources once only available to federal agencies, and federal agencies with access to surveillance capabilities previously available only to local law enforcement.

The only privacy protections afforded to citizens within the ISE are the same hollow promises of respecting “civil liberties” made by those who reject any hint of greater civil liberties oversight, or state and local law enforcement refusing to participate in this information sharing – something not likely to happen given the clear trends of over-criminalization and over-militarization. Ultimately, it is the lack of privacy protections or civil liberties oversight that allows law enforcement to turn completely legal activities, like owning a gun or supporting third-party candidates, into actionable intelligence based on some vague notion of “suspicious activity.”

Given the vastness of these networks, and collusion between private sector and law enforcement officials at the local, state and federal levels, only Congress has the necessary leverage to penetrate the shield that for so long has protected this law enforcement “DarkNet” from scrutiny. Its task however, will not be easy. Despite serious deficiencies in the fusion centers system documented in a two-year, bipartisan investigation by the Senate Permanent Subcommittee on Investigations the system remains, in the view of the respected Electronic Frontier Foundation, completely immune from oversight.

Now that Republicans, led by pro-privacy leaders such as Sen. Rand Paul and Rep. Justin Amash, have regained control over the House and the Senate, GOP officials should, at a minimum, immediately call for hearings. The value of such hearings lies in uncovering what exactly is being shared among law enforcement agencies about private citizens on these networks; and then to legislate safeguards to ensure the constitutional rights respected in one state are not used against law-abiding citizens in another. Otherwise, the type of abuse against a lawful Florida concealed-carry permit holder by Maryland traffic police, will become even more commonplace in states where freedom is trumped by “security.”

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Government Surveilance

In 1964, Ayn Rand wrote that American society was quickly heading toward what she called “the stage of ultimate inversion,” in which “the government is free to do anything it pleases, while the citizens may act only by permission.” Rand, who came to America to escape the tyranny of the Soviet Union, saw in mid-20th Century America a country following a similar course as the one she escaped; in which government ruled by “brute force” and increased its power as it eroded individual rights.

Now, more than three decades after her death, and with the age of the Internet in full swing, Rand’s fears of government “inversion” have become truer than ever. Last week’s bipartisan congressional passage of the FY 2015 Intelligence Authorization Act is clear proof of how far we have travelled down the road Rand predicted.

Since the mid-1990s, when anti-terror initiatives championed initially by the Clinton Administration and GOP leaders in the Congress provided the foundation for the massive federal surveillance apparatus in which we now live, privacy watchdogs have warned about the mission creep of federal authority deemed necessary to “protect us.” However, it was not until the 2013 leaks by National Security Agency contractor Edward Snowden and journalist Glenn Greenwald, exposing the breadth and technological sophistication of the government’s surveillance programs, that the public finally recognized what the blank check of “trust us” was really costing us.

As it does with every scandal it faces, the Obama Administration defended against the allegations with the usual gobbledygook, masked as promises of reform. Compounding the problem, the refusal by Republicans in Congress to so much as even debate limiting domestic spying, ensured that in spite of the overwhelming public outcry to the contrary, nothing would be done to limit the abuses. In fact, as last week’s vote on the FY 2015 Intelligence Authorization Act demonstrates, the only actions Congress and the Administration favor are those that expand government surveillance powers.

Buried in Section 309 of the Intelligence Authorization Act for Fiscal Year 2015 are — for the first time in “public” statute — procedures for how federal agencies can retain “incidentally acquired communications” obtained through domestic surveillance programs, including communications known to be between U.S. citizens with absolutely no ties to “terrorism’ (which had served as the justification for the initial authority). As Rep. Justin Amash (R-Mich.) explained in a Facebook message detailing the truly odious nature of the bill’s expedited passage, it was only after he quickly organized his legislative staff for a review that anyone noticed “one of the most egregious sections of law [Amash] encountered during [his] time as a representative.”

For years, the government’s ability to surreptitiously collect, analyze, store, and disseminate the private communications of U.S. citizens not suspected of violating any laws was based on dubious legal memos, classified decisions of the secret FISA courts, assumed powers in Executive Actions, and “plausible denials” concocted by federal officials responsible for conducting the very actions they were defending.

Congress’ most recent and feeble attempt at “reforming” that process in fact has enshrined in law those powers that, until now, existed in legal limbo. Any attempt at actual reform through court challenges now has been rendered even more difficult.

On the surface, Section 309 may appear an attempt to place a finite limit on how long government can retain the records of digital communications of U.S. citizens obtained without warrants or court orders. However, as the saying goes, the devil is in the details. Exceptions to the five-year limit carved out in the procedures, such as for communications “reasonably believed to have a secret meaning” or — a government favorite — communications “necessary to protect the national security of the United States,” renders moot any meaningful limitations.

But perhaps the most problematic language in Section 309 is the exception made for communications “reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency,” which provides the legal authority to continue creating a digital rap sheet on virtually any U.S. citizen spanning federal, state and local governments, without any real consideration as to whether a crime has been committed.

Last week in this column, I explained how the government’s over-criminalization serves as a mechanism to control the citizenry. The government leverages minor, impossible-to-avoid criminal offenses to ensure cooperation when it so desires for either regulatory control or financial gain. The erosion of personal privacy through powers such as those found in the Intelligence Authorization Act serves only as a “multiplier” — moving us as at an accelerating rate toward that inversion state against which Ayn Rand warned us many decades ago.

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Last weekend, America moved yet another step closer to fulfilling Orwell’s vision for the future

Photo courtesy of Michael Fleshman

“Thoughtcrime was not a thing that could be concealed forever,” George Orwell wrote in 1984, describing the “Newspeak” term for any crime that was evidence of disloyalty. “You might dodge successfully for a while, even for years, but sooner or later they were bound to get you.” Though written more than six decades ago in 1949, Orwell’s dystopian fiction has been hauntingly prophetic in its accuracy describing the nature of totalitarian societies, particularly the frightening methods for exacting control over the population.

Orwell’s omnipresent “Thought Police,” who penetrated every facet of civilian life, were replicated for decades until the fall of the Berlin Wall by the feared East German “Stasi”; and until the breakup of the Soviet Union in 1991, by the KGB. Russian citizens today, under Vladimir Putin, himself a former KGB official, reportedly suffer similar “Big Brother-ism.”

Even in the United States, we see eerie similarities developing within and among the myriad federal agencies that are either directly or indirectly involved in gathering, processing, disseminating, and data-basing information on and about the citizenry. This is no longer a concern that should be directed only at those agencies historically tasked with such activities – the FBI, the CIA, and the NSA primarily. Virtually every federal agency has now become part of the problem.

The Transportation Safety Administration employs “behavior detection officers” to scan facial expressions in order to identify would-be terrorists. DNA is harvested at roadblocks on public highways. The US Postal Service conducts hundreds of thousands of “mail covers” each year, “come rain, shine or dead of night.”

But it is the arena of electronic communications data gathering that has provided the most abundant – and scary – harvest of personal information a la George Orwell.

Owing largely to the actions of Edward Snowden and reporter Glenn Greenwald, we know that any digital communication in which a person participates can be, and likely is, recorded, stored and analyzed by the NSA. The Department of Justice even uses fake cell phone towers on Cessna airplanes to surreptitiously collect cell phone data from American citizens.

Last weekend, however, America moved yet another step closer to fulfilling Orwell’s vision for the future under a totalitarian state as the New York Times revealed that a disturbing number of federal agencies are now using costly, and largely unsupervised, “undercover” investigations to conduct surveillance. These “Secret Police” pose as “business people, welfare recipients, political protesters and even doctors or ministers” in order to catch suspects, or whomever else may fall within the ever-expanding registry of federal criminal offenses (now approaching 5,000 in number).

For years privacy advocates have warned about the steady expansion of virtually unchecked powers both granted to, and assumed by, federal law enforcement and clandestine services agencies. The situation is made far worse by virtue of the fact that many of these activities now are undertaken “in the shadows,” with minimal or no real oversight by the President, agency heads or even congressional overseers. The agencies thus are left largely free to carry on as nearly autonomous entities, guided only by the vague, if not meaningless principle, that they are “protecting us” — whatever the financial or legal costs.

Since the 9/11 attacks, the notion of “Saving America” is now more of a rote mantra used to justify whatever actions government agencies or individual employees decide to undertake so long as such actions can be shoe-horned into the box labeled “homeland security.” The mammoth mechanism of the federal government has transmogrified from an entity designed to protect liberty, into an opaque and self-justifying Praetorian Guard made almost impenetrable to the citizenry through the double-edged sword of modern technology.

This now-galloping mission creep once was relegated primarily to the major federal law enforcement and spy agencies. No longer is this the case. Last weekend’s New York Times revelations illustrates clearly how this toxic mentality has infected virtually every facet of the federal government. Like financial institutions that believed themselves “too big to fail,” the federal government now considers itself “too important to restrain.” Each department, agency, or office has a mission it considers absolutely essential to protecting America from crime, corruption and terrorism — where even discussion about limits to their extra-legal exploits is taboo.

The tangible threats posed by this paradigm are fundamental and widespread. If someone with the I.R.S. can pose as an attorney to catch criminals, how are citizens supposed to trust in the integrity of the right to defend themselves against government charges? If a special agent with the FBI can pretend to be an AP reporter, is any media product free from suspicion? And, if an employee of the DEA can steal content and photos from citizens to use in sting operations, how are we to trust that even our friends’ and family’s online communications are not the product of government snoops?

“There was of course no way of knowing whether you were being watched at any given moment,” Orwell wrote 65 years ago.“You had to live — did live, from habit that became instinct — in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.” Sadly, the ubiquity of home computers, smart phones, iPads, and other information-sharing devices – all susceptible to government GPS tracking – have make Orwell’s society, in which at least the dark of night provided some relief from government’s prying eyes and ears, a quaint relic of a bygone day.



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