Elliot D. Cohen
By surveilling millions of Americans’ private electronic communications without warrants, the US government threatens human freedom. Meanwhile, popular government claims—that this colossal spy network preempts terrorism attacks, and poses no significant threat to the civil liberties of the masses—are instances of government propaganda that the corporate media unabashedly propagate. This chapter aims at exploding these well-entrenched government myths, increasing public awareness of important facts about mass, warrantless surveillance not adequately addressed by the corporate media (even in this post-Snowden period), and exposing the dangerous technological trends that drive such surveillance. In this light, it draws some practical conclusions and admonitions regarding this insidious threat to human dignity.
In June 2013, just five days after the Guardian broke the story of Edward Snowden’s disclosures that the US had been collecting millions of Americans’ phone records, a majority of Americans thought that the NSA’s phone tracking was an acceptable antiterrorism tactic, according to a Pew Research poll. According to this survey, 56 percent agreed with such a government measure, whereas 41 percent thought that it was unacceptable.1 In contrast, according to a June 26, 2014, Pew Research survey, these numbers reversed, with 54 percent of Americans disapproving of government collection of telephone and internet data as an antiterrorism tactic and 42 percent approving.2 It is therefore reasonable to suppose that the American public’s perception of government mass surveillance has been, and can be, significantly influenced by what the news media discloses. So, what if the corporate media were to present evidence showing that government collection of millions of Americans’ phone records did virtually nothing to stop terrorism plots?
THE EARLY DAYS OF MASS SPYING
The system of mass, warrantless surveillance did not develop overnight.3 It is a product of decades of growth dating back to at least the late 1960s, with a system known as Echelon, which captured and filtered signals sent via satellite technologies. Operated jointly by the United States’ National Security Agency (NSA) and Great Britain’s Government Communications Headquarters (GCHQ), it was officially used for national defense purposes against the Soviet Union during the Cold War. In fact, this early system, like iterations to follow, was also used (and misused) for other purposes, including “eavesdropping on millions of daily communications between ordinary people”4 as well as “governments, organizations and businesses in virtually every country.”5
With the advent of fiber-optic cables, satellite technologies were largely replaced, thereby increasing the speed, distance, and amount of data that could be transmitted. By the late 1980s, nations were connected by underwater fiber-optic cables, thus setting the stage for a system of mass surveillance that spanned continents. By the late 1990s, political focus shifted from the Soviet Union (dissolved in 1991) to the Middle East, and, after the attack on the US homeland on September 11, 2001, a new geopolitical basis for the development and deployment of an even more aggressive iteration of the mass surveillance system was born. This time it was “the war on terror”—rather than a “cold war” with the Soviet Union—that became the official rationale for mass, electronic surveillance.
MASS ELECTRONIC SURVEILLANCE ON STILTS: TOTAL INFORMATION AWARENESS
Unlike conventional wars deserving of the term, this new “war on terror” was to be fought anywhere and everywhere, against an enemy that did not wear a state uniform and could even turn out to be one’s neighbor, friend, or peer. The latest iteration of mass surveillance is intended to envelop everyone inside an electronic wall. It brings the “war on terror” into our living rooms and even our bedrooms. Under increasingly pervasive surveillance, everyone is treated as a potential terrorist—guilty until proven innocent. Under the banner of fighting such a ubiquitous “war,” within weeks of the 9/11 attacks, the George W. Bush administration established the President’s Surveillance Program, also known as the “Total Information Awareness” project. Then, in January 2002, the research and development branch of the Department of Defense, called the Defense Advanced Research Project (DARPA), established an “Information Awareness Office” charged with overseeing the building of this massive surveillance spy network. Its mission was to “imagine, develop, apply, integrate, demonstrate and transition information technologies, components and prototype, closed-loop, information systems that will counter asymmetric threats by achieving total information awareness.”6 That is, its goal was to systematically intercept, store, search, monitor, read, and analyze the electronic communications of 300 million Americans, as well as millions of foreign users passing through switches at telecommunication sites located in the United States.
This system was illegal from its inception, because the 1978 Foreign Intelligence Surveillance Act (FISA), then the law of the land, required court warrants for spying on US persons. Nevertheless, except for a misleading article published by the New York Times on December 16, 2005, which reported that the Bush administration only monitored international phone and email messages, such domestic spying operated in secrecy until June 2006, when Mark Klein, an AT&T whistleblower, disclosed AT&T documents proving that the NSA was conducting a far more expansive mass warrantless surveillance program, including the monitoring of wholly domestic communications.7 According to Klein, AT&T’s Folsom Street facility in San Francisco, where he worked as chief technician, had a secret “secure room” hidden deep within it, requiring NSA clearance. This room, Klein maintained, contained NSA computing equipment for capturing, storing, and analyzing all incoming data, which was copied and diverted to the room using fiber-optic splitters. “Based on my understanding of the connections and equipment at issue,” wrote Klein, “it appears the NSA is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the internet— whether that be peoples’ e-mail, web surfing or any other data.”8
In 2013, classified NSA documents leaked by Edward Snowden confirmed Klein’s claims. These documents, including NSA slides, described the latest equipment and provided a clear idea of the substantial technological advances in surveillance capabilities. Whereas Klein disclosed a Narus STA 6400 Semantic Traffic Analyzer, which searched electronic communications based on predefined key terms, the leaked slides also revealed the latest iteration of so-called “deep packet analysis,” in particular, a traffic analyzer called Xkeyscore, developed by Science Applications International Corporation (SAIC).9
Xkeyscore taps into data flowing upstream, that is, data in transit, before it reaches its destination. Such upstream programs contrast with a collection of programs, code named PRISM, that retrieve data after it has already reached the servers of major Internet companies, including Microsoft, Google, Yahoo, Facebook, Paltalk, YouTube, Skype, AOL, and Apple. Because upstream data is largely unprocessed and encrypted, analysts are instructed to use both upstream and downstream (PRISM) data, which can sometimes circumvent potential challenges such as de-encryption. Analysts for the NSA also have a standard of 51 percent assurance that the targets of PRISM collections are not US persons, which means that there is a 49 percent chance that they are US persons. This probability assessment is also highly subjective.10 On the other hand, upstream programs, by their nature, tend to indiscriminately capture whatever flows through the fiber-optic cables, which includes both metadata and content of electronic communications of US persons that has been “incidentally” captured.11 Unfortunately, most media attention has been on PRISM, thus keeping the nature and potential of Xkeyscore relatively hidden from public scrutiny.
In a January 2014 interview with German broadcaster Nord Deutscher Rundfunk, Snowden described Xkeyscore’s capabilities:
Given Snowden’s description, such a system could be quite useful for eavesdropping on the activities of non-terrorists, and this is borne out by the facts. In particular, the NSA, together with its British counterpart, the GCHQ, has spied on senior European Union officials, the former Israeli prime minister and defense minister, the presidents of Brazil and Mexico, the chancellor of Germany, a West African official, United Nations officials, officials at the German Embassy in Rwanda, and a French ambassador, among others. The NSA has also engaged in industrial espionage, including spying on oil giants such as the French company Total, the Brazilian gas and alternative energy company Petrobras, and the French multinational Thales, which builds electrical systems and provides aerospace, space, defense, transportation, and security services.13
Clearly, budgeting billions of federal dollars to fund a spy system for these purposes would not pass public muster, so the official purpose of the surveillance programs is to protect the homeland from another attack like 9/11. However, as I will discuss, the NSA’s colossal spy network has only very limited uses in conducting terrorist investigations, and these uses do not, by any unbiased assessment, warrant the ever-increasing threat it poses to human freedom and dignity.
WHAT’S SO PATRIOTIC ABOUT EVISCERATING THE FOURTH AMENDMENT?
Indeed, the present state of law makes the protection of these vital human values extremely tenuous. Judicial oversight of NSA data programs largely approximates the Wild West. Although there is a Foreign Intelligence Surveillance Court (FISC) to oversee NSA collection activities and to maintain conformity with FISA “minimization” standards intended to protect US citizens from violations of their Fourth Amendment right to be free from unwarranted searches and seizures, the truth is that enforcement has been inconsistent at best, and entirely absent at worst. For example, in 2011, the FISC concluded that the NSA had been “acquiring annually tens of thousands of wholly domestic communications, and tens of thousands of nontarget communications of persons who have little or no relationship to the target but who are protected under the Fourth Amendment.”14 Still, the FISC gave the NSA a pass because the technology being used limited the ability of the NSA to filter out the private communications of US persons. Sadly, the FISC did not even broach the idea of requiring the NSA to find a technological solution to such violations of the Fourth Amendment rights of US persons.
In other cases, there has been no judicial oversight whatsoever. This happens when the NSA collects its data overseas and therefore outside the jurisdiction of the FISC. One particularly egregious instance of this sort involves the program code-named MUSCULAR. Between December 2012 and January 2013, this upstream program collected 181 million records, including email messages and chats.15 These data streams were collected as they passed between the overseas internal data storage centers of Yahoo and Google. Since overseas routing of data by US companies like Yahoo and Google is primarily motivated by cost-effectiveness and not by the nation from which the data originated, a substantial number of these intercepted communications likely came from US persons. Although this data is collected overseas, it is still routed to Fort Meade, Maryland, for storage, search, and analysis.16 Thus, through programs like MUSCULAR, the NSA is able to systematically avoid any judicial oversight, summarily violating the Fourth Amendment rights of US persons.
Changes in intelligence law have also made it possible to use the mass, warrantless surveillance network to hunt for more than just terrorists. In particular, the expansive powers of the so-called “Patriot Act,” which was hastily enacted following the September 11, 2001, attacks, have broken down the partition between ordinary criminal activities and terrorism by allowing evidence regarding ordinary (non-terrorist) crimes discovered while conducting a terrorist investigation to be admissible for purposes of prosecuting such crimes.17 So, the illegal-marijuana grower can be prosecuted for her crime if her email about this activity happens to be picked up during a “terrorist investigation.” No longer is there a need to show probable cause for investigating such activities, so long as they are discovered in the course of hunting for terrorists. Further, the FISA Amendments Act of 2008, now the law of the land, requires only that “a significant purpose of the acquisition is to obtain foreign intelligence information,” which opens the door for deploying the system for purposes unrelated to terrorism investigations [emphasis added].18
In the face of such a system of mass, warrantless surveillance and the laws under which it presently operates, Fourth Amendment protection against unreasonable search and seizure without probable cause is therefore a relic of times gone by. It was not an accident that the Founding Fathers included such a protection in the US Constitution. The danger of government overreach was seen to be inevitable, over the course of time, without a system of checks and balances to prevent it. Unfortunately, now more than ever before in the history of our nation, unfettered governmental power to inject itself into our private lives threatens citizens’ ability “to be secure in their persons, houses, papers, and effects” pursuant to the Fourth Amendment. Like a fire raging out of control, this government power to meddle in our personal affairs is destined to consume human dignity, which entails the ability to live by our own intellectual and moral lights without the encroachment of government. Without a protected sphere of privacy of thought, and feeling, which is none of the government’s business, we are not free to be ourselves.
This point has been eloquently stated by John Stuart Mill in his famous treatise On Liberty. “It is desirable,” wrote Mill, “that, in things which do not primarily concern others, individuality should assert itself. Where, not the person’s own character, but the traditions or customs of other people are the rule of conduct, there is wanting one of the principal ingredients of human happiness, and quite the chief ingredient of individual and social progress.”19 Unfortunately, in a culture where government is privy to everything about us—even our more personal and private secrets—the desire to be ourselves is chilled.20
WHAT’S THE PROGNOSIS?
The stakes are simply too high to assume that government will leave us alone. Unconstrained power eventually gets worse, and more abusive, not less. This trajectory ultimately leads to full censorship of anything contrary to the interests of those who wield power. Can a journalist protect his sources when there is no sphere of privacy from government encroachment? How, then, can there be freedom of the press? Can a lawyer protect a client against government encroachment, when, in the process, the client’s confidential information is acquired by that very government? How, then, can there be Sixth Amendment rights to trial by jury and the right to counsel? Can a dissenter express antigovernment sentiments when an omnipresent government is bent on suppressing dissent? Can a nonbeliever speak earnestly when a theocratic dictator has her ear to the ground? What about an anti-Muslim demagogue who has branded all Muslims as enemies of the state? Is there freedom of religious worship when mosques are under surveillance? Can we assure that this awesome potential for abuse won’t inevitably fall into the hands of a despotic regime that is motivated by hatred, vindictiveness, and paranoia? Predictably, a system of mass, warrantless surveillance will eventually outstrip human dignity, leaving in its tracks an empty shell where creativity, individuality, freedom, vitality, and personal autonomy once lived.
AND IT’S NOT JUST WHAT YOU SAY!
The history of technology development, especially in the area of braincomputer interfaces, supports the need for constraining this ubiquitous, looming threat to human dignity. On September 17, 2001, just six days after the 9/11 attacks on the US homeland, DARPA issued a memo that stated,
In practical and blunt terms, this meant that DARPA wanted to be able to remotely control soldiers’ minds.
Along these lines, in 2002, DARPA announced that it was “tinkering with a soldier’s brain using magnetic resonance” to make severely sleep-deprived soldiers feel rested. According to DARPA, “Eliminating the need for sleep during an operation . . . will create a fundamental change in war fighting and force employment.”22
Similarly, in 2003, DARPA’s brain interface program manager, Alan Rudolph, declared that this program, which investigated the monitoring of brain electrical activity, would focus on
In laymen’s terms, the program investigated “reprogramming” soldiers’ minds not to experience fear and confusion in extremely threatening environments. This would amount to a kind of short-circuiting of a portion of the brain known as the amygdala, which is hardwired to produce the experience of fear in stressful situations.
In 2014, DARPA awarded contracts to both Massachusetts General Hospital and the University of California, San Francisco, to build electrical brain implants to control human emotions.24 Although these devices are ostensibly to be tested on mentally ill individuals, DARPA’s consistently documented goal in funding this program has been to set the stage for remotely controlling the affect of soldiers on the battlefield. But why stop there when the same devices might be deployed to control the masses?
According to Intel researchers, by 2020 Internet users will have the capability to surf the web using their brain waves.25 That is, it will be possible to connect human brains to the Internet via brain-computer interfaces, thereby allowing Internet users to upload and download information by their thoughts alone. In fact, it appears that research to develop such a brain-computer interface is now being funded to the tune of $60 million by DARPA.26 What this portends is the potential for exposing the brains of millions of people to the perils of others bent on acquiring their private information, or manipulating their brains, for self-interested purposes, in ways developed by DARPA. Indeed, cookies clandestinely downloaded on one’s computer for nefarious purposes can be problematic; but what if it were a person’s brain, not just his or her PC? The technology to turn such disturbing possibilities into actualities is under development, and given the propensity of technology to be marketed when it is available, especially if there are profits to be made, we can reasonably predict that Intel’s vision will become reality in the not-so-distant future.
The logical conclusion of a project focused on total information control is to control the source of the information itself, which is the minds of the masses. Information warfare is already a reality. True, as in war in physical space, cyberwars can be fought within the bounds of just war theory (not intentionally targeting noncombatants; not attacking if there are viable alternatives; attacking for purposes of self-defense only, not political gain; and so forth). However, we know from past experience that such principles of just war are not always respected on the battlefield, especially when high-tech solutions to solving conflicts are involved. In actions ranging from the US dropping an atomic bomb on Hiroshima to its use of drone warfare in Afghanistan, the principle of discrimination, calling for the avoidance of “collateral damage,” has been overlooked for the sake of expedience.
Here, the analogy with cyberwarfare is not far afield. Instead of wiretaps based on probable cause, we now have mass, warrantless surveillance with little to no judicial oversight. As technologies increasingly develop the potential to access and control the sources of information (including human minds, as the DARPA program intends), we can reasonably expect that the NSA will want to seize control of the minds of those they deem to be potential threats to national security. However, given that we are all now considered guilty until proven innocent, this makes us all potential threats to national security. In fact, few people understand that the technologies of mass surveillance have little capacity to comply with the principle of discrimination as it applies to cyber-investigations. This is because terrorist searches launched with the use of the present system of mass, warrantless surveillance have an incredibly high rate of false positives.
WHAT ACTIONABLE INTELLIGENCE DOES THIS MULTIBILLION-DOLLAR SPY NETWORK REALLY YIELD?
In January 2014, the New American Foundation, a nonprofit, nonpartisan public policy institute, published a report on the efficacy of the present mass surveillance system, based on its analysis of 225 cases of individuals charged with terrorism after 9/11.27 The report examined investigations conducted pursuant to Section 702 of the FISA Amendments Act as well as investigations conducted under Section 215 of the US Patriot Act. The former is supposed to target only non-US persons outside of the US, but in fact collects the electronic communications (including the contents of email messages, web searches, chats, Skype exchanges, and phone calls) of millions of Americans; while the latter acquires mass metadata records of telephone use (such as date, time, duration, and number called) of millions of Americans.28
According to the New American Foundation’s report, the Section 702 program played a role in identifying only 4.8 percent of the 225 documented cases, while the Section 215 program played a role in identifying only 1.8 percent of these cases. The report concluded that bulk surveillance of this sort has made only a “minimal” contribution to identifying terrorist plots before they occur, and that official claims about these programs’ role in keeping Americans safe have been “overblown” and “even misleading.”29
This is not to mention the millions of false positives that were generated in the process of identifying these small numbers of terrorists. In fact, in the case of Section 702 investigations, there appear to have been eleven terrorists out of seventeen that were identified between the years 2009 and 2012. This means that the accuracy rate of the system was 65 percent, which means that the inaccuracy rate (false positives) was 35 percent. Based on FIS Court records, between 2009 and 2012, at least 250 million Internet communications were collected annually pursuant to Section 702. This, in turn, means that, as a modest conjecture, there were at least 87.5 million false positives generated to identify eleven terrorists (250 million minus the seventeen true terrorists, multiplied by thirty-five percent).30
WHY SO MANY FALSE POSITIVES?
The obvious question is why the current state of surveillance technology yields such an incredibly high rate of false positives. Why isn’t the system more efficient? The answer is that the system uses pattern matching searches, which are highly ineffective in catching terrorists.
Pattern matching searches work by developing algorithms for identifying a target group using a set of matching criteria. For example, when an advertiser attempts to market a product to a particular demographic, it collects a data profile about the group in question and targets Internet users who fit this profile. So, suppose it wants to sell Viagra over the Internet. The advertiser would collect information about the most frequent users—in terms of age, sexual behavior, gender, etc. It would then target this group over the Internet by matching the footprint of individual end users with this profile. That is why advertisers install cookies in our computers. With cookies, they can collect information about individuals, and use this data to make inferences about what sort of products would interest them. For example, based on websites visited and web searches, it might infer that a person is a male, 56 years or older, and has sexual interests. If this description matches the profile of individuals most likely to use Viagra, the person would receive a pitch for Viagra from the advertiser.
Even using such a behaviorally oriented approach, the average success rate is only about 6.8 percent.31 So, if, say, ten million potential Viagra users were targeted, there would be about 9.32 million of these individuals who would not purchase Viagra.
In contrast to targeting potential Viagra users, the use of pattern matching searches to identify prospective terrorists is much more challenging. This is because, unlike in the case of Viagra users, we do not have a clear idea about prospective terrorists’ online activities. As a result, algorithms for constructing matching searches for terrorists look for anomalous behavioral patterns on the Internet that do not conform to the web searches of most Internet users. In fact, the NSA has used the profiles of millions of social media users (for example, those who have Facebook accounts) to build such inference engines. However, it is erroneous to conclude that someone is a terrorist simply because he or she does not fit the official profile of an average social media user.32 As a result of pattern matching searches, the NSA’s rate of success in catching terrorists in its electronic net is extremely low, while the rate of false positives is extremely high.
WHY NOT PUT MORE BOOTS ON THE GROUND?
The success rate in catching terrorist plots pursuant to Section 702 during 2009–12 should have been appreciably less than 65 percent if the NSA relied entirely on pattern matching searches. In fact, however, the NSA did not rely entirely on such searches. According to the 2014 New American Foundation Report, 60 percent of the investigations that resulted in thwarting terrorist plots depended on conventional means of evidence gathering, including the use of undercover informants, tips from family members, routine law enforcement, and shared FBI or CIA intelligence.33 Indeed, as I have discussed elsewhere, leads obtained by conventional “boots on the ground” investigations significantly enhanced the relatively limited success of the Section 702 investigations.34 More precisely, metadata (socalled “strong selectors”) such as names, phone numbers, and email addresses, obtained by conventional means, were used to screen out the millions of false positives from the true terrorists. In the absence of conventionally obtained metadata, the algorithms used by the government to conduct pattern matching searches made only small contributions to their efforts to forestall terrorist plots.
In contrast, a T-shirt vendor stopped the 2010 Times Square car bombing attempt,35 the passengers and crew of Northwest Airlines Flight 253 stopped the “underwear bomber” on Christmas Day in 2009,36 and it was passengers on another Northwest flight who thwarted the 2001 “shoe bomber” and tied him to his chair.37 Such plots as these eluded the multibillion-dollar mass, warrantless, electronic spy system. Yet the United States continues to pour vast amounts of money into it, rather than to invest in antiterrorism programs based on human intelligence, search warrants, and wire taps, all initiated on the basis of probable cause and consistent with US citizens’ Fourth Amendment rights. Unless the overreach of the current system of mass, warrantless surveillance is reined in, we are arguably less safe from future terrorist attacks while being remarkably vulnerable to what is worst of all: the undermining of our freedom and dignity as persons.
SO WHY IS THE CORPORATE MEDIA CENSORING THE STORY?
Clearly, the government wants the American people to believe that the system works well, that it is exclusively aimed at finding and stopping terrorists, and that it poses no significant threat to the civil liberties of non-terrorists. And the corporate media is helping to propagate the myth.
When Edward Snowden leaked government information about the NSA’s bulk surveillance program, he was branded a traitor who had betrayed the American people by putting their safety at risk.38 This was and is the official position taken by the Obama administration (despite the fact that there were no foreign terrorist attacks on the US homeland following the Snowden leaks), and the corporate media helped to propagate this line. It is true that US news media such as the New York Times and Washington Post covered the story, publishing many of the NSA slides that were leaked. In fact, the Washington Post won Pulitzer Prizes for its coverage. Nevertheless, the facts disclosed by Snowden have tended to be buried, and have gotten lost in high-pitched media discussion about whether Snowden was a hero or traitor.39 Similarly, in 2006, when Mark Klein leaked information about the NSA’s massive spy program, corporate media played down the story; today few people have even heard of Mark Klein.40
It is important to stress that Snowden did not disclose details about terrorist investigations that were underway, including the names of individuals who were being targeted by the NSA. Clearly, this would have undermined national security. In contrast, information about how the NSA was spying on Americans, without their knowledge or consent, was arguably information to which Americans were entitled. Nevertheless, the media’s persistent harping on the question of Snowden’s status as a hero or a traitor was a red herring that distracted the public’s attention from the more fundamental news story, the government’s abuses of power. Isn’t the government abusing its power by systematically violating the Fourth Amendment? Shouldn’t reporting this abuse of power be the media’s central focus?
Here are some disconcerting reasons why the corporate media, and especially network news organizations, failed to do their job. First, the FISA Amendments Act of 2008 requires that electronic communication service providers “immediately provide the Government with all information, facilities, or assistance necessary to accomplish the acquisition in a manner that will protect the secrecy of the acquisition . . .”41 Network news organizations such as News Corp/Fox News and Comcast/MSNBC are themselves “electronic communication service providers” as this term is defined by the Act.42 As such, these corporations are complicit with government in spying on millions of Americans—and they are sworn to secrecy about their complicity. As a result, the very media organizations that, pursuant to the First Amendment, are supposed to keep American citizens informed about government abridgments of their rights, at the same time are legally compelled to cooperate with government in violating those same rights. In fact, under the FISA Amendments Act of 2008, such media companies are immune to legal liability for their cooperation with government, and cannot be sued for violating their customers’ civil liberties. As a result, the American people are not being told the truth about the system of mass, warrantless surveillance that usurps their constitutional rights.
Another instance of corporate media deception concerns coverage of changes to the telephone metadata collection program, which had been operational since at least 2006. In January 2015, the Obama administration amended the provisions of Section 215 of the Patriot Act by passing the “USA Freedom Act.” Corporate media, including the Washington Post, claimed that this Act “bans the bulk collection of data of Americans’ telephone records and Internet metadata.”43 The USA Freedom Act gave the appearance that the Obama administration was concerned with protecting the privacy of US persons. In fact, the Act did not eliminate bulk collection; rather, it placed some limitations on it by circumscribing the parameters of the selection terms the NSA could use in searching telecommunication company databases. According to the USA Freedom Act, a “‘specific selection term’ (I) is a term that specifically identifies a person, account, address, or personal device, or any other specific identifier; and (II) is used to limit, to the greatest extent reasonably practicable, the scope of tangible things sought consistent with the purpose for seeking the tangible things.”[emphases added]44 The term also cannot be “a broad geographic region, including the United States, a city, a county, a State, a zip code, or an area code, when not used as part of a specific identifier.”45 But notice the wording I have italicized. The selector does not have to identify a specific person, account, address, or personal device, and the purported purpose of the investigation could dictate what is “reasonably practicable.” Thus, for example, it would still be possible to target many Middle Eastern males by searching a series of common Middle Eastern names such as “Muhammad,” “Abdul,” “Abdullah,” “Ahmad,” “Ali” . . . Further, the telephone system is now digitized and therefore runs through fiber-optic cables, as do email messages. Because upstream programs intercept electronic communications while they are on route, it is possible to collect the same telephone metadata through a different channel of the mass surveillance system, and specifically one not subject to the legal restrictions of the USA Freedom Act, such as MUSCULAR. In any event, corporate media has succeeded in propagating the myth that the NSA no longer engages in bulk collection of telephone and Internet metadata.
IF CORPORATE MEDIA IS COMPLICIT, WHAT’S THE SOLUTION?
Independent media outlets need to do their best to inform the public about the nature of this system of mass information control and its potential to eviscerate the very values that define humanity: freedom and dignity. Newspapers such as the New York Times and Washington Post are not as clearly tied to the legal classification of “electronic communication service providers,” which may explain why they have done a better job than network news organizations in covering the NSA’s mass surveillance program. Unfortunately, these companies are still liable to government “incentives” (tax breaks, FCC media ownership deregulation, government contracts, and other manner of quid pro quo), and, therefore, cannot be counted upon to keep the government honest.
The American public needs to be educated about the dangers and shortcomings of the NSA’s bulk electronic surveillance program. Here are just some of the things independent media (and corporate mainstreamers like the Washington Post and New York Times) need to underscore about the NSA’s mass spy network:
Evidence suggests that the American public is prepared to exercise such pressure if told the truth about the dangers, abuses, and inefficacy of the mass, warrantless surveillance network. According to a 2014 Pew Research Poll, 74 percent of Americans deny that they should have to relinquish their privacy and freedom in order to be safe from terrorism, while only 23 percent agree that Americans need to relinquish their privacy and freedom in order to be safe from terrorism. Fifty-four percent of Americans disapprove of the government’s collection of telephone and Internet data to thwart terrorist plots, while a substantial minority of 42 percent approve of the program.48 So, given that 74 percent of Americans do not think they need to give up their freedom and privacy, why is there not a similar overwhelming majority who are against the collection of telephone and Internet data to thwart terrorism plots? The answer appears to be that Americans are not yet adequately informed about the details of the aforementioned modes of collection. But the devil is clearly in the details. When and if public perception is informed by unequivocal evidence about the negative aspects of the surveillance system, as presented here, there will predictably be a change in the tenor of the public outcry. Such transparency will not fall on deaf ears if the media does its job!
WHAT SORT OF CHANGES ARE NECESSARY?
The absence of privacy safeguards to prevent government overreach is glaring. Inasmuch as the NSA is presently using content filters to sift through an immense amount of private information, most of which has nothing to do with national intelligence, it is curious that the NSA has not installed further filters to avoid collecting private information that is none of its business. For instance, why is the identifying information of US persons not blocked? The potential to add privacy protection was proposed in 2002, by John Poindexter, one of the masterminds of the “Total Information Awareness” project, who suggested that a “privacy appliance” could conceal protected information such as names and addresses, while permitting the acquisition of other information pertinent to terrorist investigations. If the collected information revealed evidence of a possible terrorist plot that warranted access to the concealed information, then the NSA could get a FISA warrant to unblock this information. Unfortunately, research conducted by DARPA at Xerox’s Palo Alto Research Center to develop such privacy protection technology was defunded and discontinued in 2003.49 Sadly, this attests to the low priority the Defense Department has historically placed on protecting the privacy of US persons. Such blatant disregard for building privacy protections into mass surveillance technologies will, predictably, have even bleaker implications for the prospects of preserving human freedom and dignity in the near future.
REMOTE CONTROL NO LONGER A REMOTE POSSIBILITY
In 2009, researchers at the University of California, Berkeley, funded by DARPA, attached a receiver to a giant flower beetle via six electrodes connected to its optic lobe and flight muscles. Transmitting electrical signals wirelessly by a laptop computer, the researchers were able to control the beetle’s flight patterns, including taking off and landing, while interfacing with its natural ability to navigate in flight. The result was a cyborg beetle under direct control of its human operator.50 The official goal of this research is to eventually develop the technology for search-and-rescue applications as well as surveillance purposes.51
Focus on the goal of surveillance. The beetle itself could surely be equipped with a camera to spy on specific targets. But another, more sweeping sense of “surveillance” is also possible. Instead of wirelessly controlling beetles, what if the Pentagon was able to control human beings, remotely, without their informed consent? Of course, this would require sending signals to the brains of human subjects, but remember, as discussed here, DARPA is already working on that component. As Intel predicts, we are on the threshold of being able to receive data downloads from the Internet via brain-computer interfaces. Indeed, there has already been progress in creating removable skullcaps capable of transmitting human brain signals to control flying objects.52 The next step is to reverse the direction of the signal to remotely control the behavior of human subjects.
This is the next logical step of a government with the insatiable appetite to see and know all. Instead of inferring the actions of targets by acquiring their personal information, why not just cut to the chase and control those actions directly, albeit remotely, surreptitiously, and without the target’s informed consent?
So is it really the case that mass, warrantless surveillance (“Total Information Awareness”) is in the best interest of our nation, or the world? Only if one believes that placing human freedom and dignity in jeopardy, in the name of preserving these same values, makes sense.
ELLIOT D. COHEN is a fellow at the Secular Policy Institute in Washington, D.C., and an ethicist and philosophical consultant. His many published works include four books on media ethics, and two on mass surveillance, including his latest, Technology of Oppression: Preserving Freedom and Dignity in an Age of Mass, Warrantless Surveillance. Editor in chief of the International Journal of Applied Philosophy, he also writes a popular blog for Psychology Today called “What Would Aristotle Do?”
Notes