Necessity is the plea for every infringement of human freedom. It is the argument of tyrants. It is the creed of slaves.
– William Pitt in the House of Commons, November 18, 1783
In September 2012, Scottsdale, Arizona, City Council members voted unanimously, 7-0, to spend $1.87 million to purchase a new facility for the Scottsdale Police Department’s Investigative Service Bureau. The council agreed to the expenditure by consent agenda – a fast-track way for the governing body to approve items en masse that are generally mundane and noncontroversial in nature, and that don’t warrant open discussion and citizen input.1
Spending $1.87 million should by itself require open discussion, open debate, and plenty of input from citizens who are footing the bill. But that’s not the worst part of this story.
The council also voted to keep secret the location of this facility. Why? It’s a safety issue, they said. Undercover police enter and exit on a daily basis, and the council members felt keeping the building location a secret would prevent criminals from hiding on the outskirts of the facility and taking note of the officers’ faces and identities.2 But really, that justification just defies common sense. Scottsdale isn’t that large a community. Wouldn’t someone, somewhere, someday notice?
Moreover, the council did publicly announce the facility spanned 17,827 square feet – a sizable property that stands apart from other buildings in the community. And following that announcement, a local newspaper actually guessed – and printed for public view – the address of the only building that fit that size and description, after doing a little legwork through property appraisal information and real estate sales records.3 So it just seems doubly ridiculous that the government body would try to hide the building location.
That’s just an entirely new level of arrogance that makes a complete mockery of the idea of the citizenry as the boss and the government as the employee – the civil servant.
America’s founders etched into our national belief system that the government is run by the people, and that it’s the citizens’ duty to ensure the government is kept in its proper place. Thomas Jefferson wrote of it in one of our country’s foremost documents, the Declaration of Independence: “But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.”
That’s a core American spirit – that of the government being run by the people, for the people. And that’s why Scottsdale City Council members committed such a grave constitutional offense. The seven members of that voting body exemplified government at its worst: arrogant, dismissive, elitist, and willfully above the law.
Yet more and more in America, it’s this attitude of government that prevails.
In mid-June 2013, national media jumped on reports of the National Security Agency’s newest data center, a massive, top-secret facility just south of Salt Lake City, Utah.4 Spanning one million square feet, it’s one of six major data sites for the NSA and will serve as a backup for the other facilities and also as a central point of intelligence gathering with real-time access for analysts seeking the most up-to-date information.5 Utah was reportedly the location of choice because of the state’s provision of cheap electricity rates, a skilled workforce, and access to massive water supplies necessary for the cooling of computer servers.6
That’s the official line, anyway.
Unofficially, Utah was the rumored site for the center because of the state’s large Mormon population and the belief that this perceived closed, cloistered society could keep a secret. There’s little proof of that aspect driving the government’s choice of Utah, but it does keep the conspiracy wheels turning.7
The facility cost an estimated $1.5 billion to build. But reports varied on how much data the facility could collect and store, ranging from several terabytes to five zetabytes – the equivalent of the amount of information that can be gleaned from 62 billion stacked iPhone 5s.8 Another estimate of what the facility could store in terms of data per minute equals the amount of printed material that’s housed at the Library of Congress.9
Either way, the center is a massive data collection site – the NSA’s largest computing facility in the entire world – and NSA deputy director John C. Inglis’s offhand attempt to defray America’s suspicions and fears in the early days of its announced construction fell on deaf ears.
In essence, Inglis told Americans not to worry, that the NSA was all-American, with heartfelt regard for the Constitution, and that analysts and agents were fully trained to uphold civil rights while rooting out national security threats.10
But it was only a few days later that Edward Snowden began leaking to the public previously undisclosed information about the NSA’s spy operations on Americans.11 So much for the “trust me” form of government. Suddenly, Inglis’s remarks didn’t seem to hold much water.
That’s called bad timing.
Still, even after the Snowden leaks, the NSA continued to tout its openness, and Inglis continued to sing loud about his agency’s transparency. On the NSA’s website to promote its core values and mission statements, Inglis is quoted as saying: “I’m often asked the question, ‘What’s more important – civil liberties or national security?’ It’s a false question; it’s a false choice. At the end of the day, we must do both, and they are not irreconcilable. We have to find a way to ensure that we support the entirety of the Constitution – that was the intention of the framers of the Constitution, and that’s what we do on a daily basis at the National Security Agency.” In a different section on the same website, Inglis also said the NSA worked hard to maintain transparency. He said: “We must remain transparent. And the way we do that is we ensure that there is external oversight that is rich – some might say pervasive – across the National Security Agency.”12
But that’s just bureaucratic speech.
In September 2013, the NSA wouldn’t even give a local Salt Lake City newspaper a straight answer on whether or not the Utah Data Center had officially opened for business.13 A spokeswoman would only say that each machine that’s installed is immediately turned on – a bland statement without context.
Is that the type of “support [of] the entirety of the Constitution” Inglis meant? Or, is that more the type of transparency he claimed the NSA worked diligently, daily, to uphold?
The American public would have a lot more tolerance for government intelligence’s need to keep its secrets if these same government intelligence agencies weren’t so frequently caught breaking the law. That “trust me” mantra grows old fast. You know, the average American citizen can’t even drive into the parking lot of the new Utah Data Center, never mind set up a visit. Only a few dignitaries from the state were lucky enough to take the tour – and then they were mum on what they saw.14
On top of that, the one thousand or so workers the site had employed during its two-year construction phase have been sent packing.15 In the end, the center is going to employ only about two hundred people – a small handful of the nation’s best and brightest whose analytical skills and technological brilliance will no doubt be matched only by their ramped-up reticence. We’ll never know what goes on there.
All we know is the NSA line, courtesy of Deputy Director Inglis – trust us. But (a) the Utah Data Center is equipped with supercomputers to monitor, collect, and disseminate mind-boggling amounts of data from e-mails, telephone calls, social media, and Internet search sites. And (b) the NSA has already been caught snooping in Americans’ own private information, absent proper court permission.
In a much-awaited January 2014 speech about NSA surveillance, President Obama attempted to tamp down fears about government spying, telling Americans that he was ordering Congress to create a watchdog of sorts to help the surveillance court judges decide certain data and technology spy decisions – an advisory panel of independent individuals. Obama also said that he was tasking Attorney General Eric Holder and National Intelligence Director James Clapper to decide who has charge of Americans’ phone records – metadata – and where those records will be stored.16 But first off: The president can’t order Congress to do anything. The executive branch doesn’t control the legislative branch – and that’s how Founding Fathers intended it. So Obama’s so-called strong message of NSA reform was little more than damage control, dependent on lawmakers’ decision to act. And second off: Who really cares which federal agency takes control of the phone collection data? In the end, the American individual is still the victim and the federal government, the new owner of citizen data. Just because the metadata might be stored with the NSA instead of the CIA or the DOJ doesn’t really matter – they’re all government entities.
The question Americans should be asking is why the government needs to keep the information at all.
A mathematician, William Binney, who worked for the NSA for forty years but quit in 2001 after blowing the whistle on the NSA’s domestic spying program, said it’s really not that hard to collect massive amounts of information that can then be stored for hundreds of years.17 Hundreds of years? What an uncomfortable thought. In the meantime, Americans will just have to trust that the NSA, the agency that collects and stores the data, will act in the individual’s best interests in securing it and keeping it private too. It’s worth noting that in December 2013, Binney came forward with a shocking statement to the press: The NSA’s spy program has progressed to the point where America has now become a police state.18
But wait, it gets worse. It seems the Utah Data Center where much of the information is stored has experienced operational problems – yet one more red flag about the government’s ability to keep information private and secure.
Let’s hope the powers that be are better at keeping information private than they are at building and running a usable facility. The data center’s opening was delayed in late 2013, after a series of melt-downs confounded system operators and led to the destruction of tens of thousands of dollars’ worth of equipment.19 In the span of just over a year, between August 2012 and October 2013, the site suffered a total of ten major meltdowns – and investigators were clueless about their cause.20
But it’s not just the federal government and the NSA that are in the data collection game. States have jumped into the fray, via dozens of fusion centers located across the nation.
Billed as collection and dissemination points for any and all information related to terrorist threats, fusion centers are supposed to serve law enforcement on the local and state levels and help pave the way for the smooth transmission of breaking intelligence news from federal authorities.21 They’re operated by state and local authorities, in partnership with federal entities, and are part of the Department of Homeland Security’s program to fight terrorism. As their name suggests, they’re supposed to fuse information from various sources and offer law enforcement a sort of one-stop shopping site to gather the latest on specific threats.
But what sounds good in theory doesn’t always translate well in practice.
A 2012 Senate report from the Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations found that the seventy-two state and local fusion centers around the nation produced subpar intelligence, “oftentimes shoddy, rarely timely.” The information was of such poor quality that investigators reported it even “sometimes endanger[ed] citizens’ civil liberties and Privacy Act protections.”22
Ouch. But that’s just the beginning. From the executive summary:
Under the leadership of Senator Coburn, Ranking Subcommittee Member, the Subcommitee has spent two years examining federal support of fusion centers and evaluating the resulting counter-terrorism intelligence. The Subcommittee’s investigative efforts included interviewing dozens of current former federal state and local officials, reviewing more than a year’s worth of intelligence reporting from centers, conducting a nationwide survey of fusion centers, and examining thousands of pages of financial records and grant documentation. The investigation identified problems with nearly every significant aspect of DHS’ involvement with fusion centers. The Subcommittee investigation also determined that senior DHS officials were aware of the problems hampering effective counterterrorism work by the fusion centers, but did not always inform Congress of the issues, nor ensure the problems were fixed in a timely manner.23
On top of that, the report authors found the bulk of information the centers disseminated between April 2009 and April 2010 was more criminal in nature, focused on incidents or investigations involving drugs, illegal cash, or human smuggling – not terrorism, as the sites were supposed to target.24 Senators reacting to the report wanted to know: Where are all the intelligence reports? Where is all the counterterrorism information? Where has the $289 million – or, as some estimates put it, $1.4 billion – that was spent on fusion center development over the course of a decade gone?25
Some of it, roughly $6,000, went to buy laptops and big-screen televisions for various centers. Another $45,000 went to buy a city official a new commuting car – a top-of-the-line SUV with all the bells and whistles of luxury add-ons.26
In the end, the report concluded: there was no evidence that fusion center intelligence led to the unveiling of any true terrorist threat.27
Wow! That’s a lot of taxpayer money for so little return. But an independent assessment from the nonprofit Constitution Project that was released a month before the Senate’s report came out forewarned of just that, concluding after extensive research that, absent reform and strict oversight, Americans weren’t likely to get much for their fusion center tax dollars – except for civil rights infractions. One of the report’s more shocking findings? Only 15 percent of fusion center operators cite their main mission as fighting terrorism. The majority say they exist to fight terrorism – but also to battle crime and assist with natural disasters and other hazards.28
Still, defenders of the Homeland Security’s core antiterrorism program rushed to debunk the Senate report, calling the information outdated and suggesting authors played up the negatives in the report for political reasons.
Sen. Joe Lieberman, then chairman of the Homeland Security and Governmental Affairs Committee, admitted that while the centers had abused some grant funding, they nonetheless served an important purpose and were crucial components in the government’s war on terrorism. His counterpart on the House side, Homeland Security Committee chairman Peter King, agreed and blamed the report authors for not taking into account more updated information that better highlighted the centers’ usefulness.29
Okay – but then there was this, from the Government Accountability Office, in April 2013.
The GAO reported that federal, state, and local agencies actually operate five different types of fusion centers – the Joint Terrorism Task Forces, the Field Intelligence Groups, the Regional Information Sharing Systems, High Intensity Drug Trafficking Area Investigative Support Centers, and the state and major urban fusion centers.30 Altogether, they total 268 different fusion-type facilities around the nation.31 And the information they provide frequently overlaps.
From the GAO report: “GAO identified 91 instances of overlap in some analytical activities – such as producing intelligence reports – and 32 instances of overlap in investigative support activities, such as identifying links between criminal organizations. These entities conducted similar activities within the same mission area... [which] can lead to benefits... but may also burden customers with redundant information.”32
The GAO suggested better coordination among the White House, the Justice Department, and the Department of Homeland Security to avoid confusion over intelligence reports generated among fusion centers. But the thing is – wasn’t the entire reason for the Homeland Security Department’s creation to stave off such conflicting intelligence, overlapping investigations, and confusing and time-wasting security reportage?
When President George W. Bush in 2002 folded twenty-two federal agencies under one massive law enforcement umbrella, thereby creating the Department of Homeland Security, he promised during a ceremonial signing of the enabling legislation that “state and local governments will be able to turn for help and information to one federal domestic security agency, instead of more than 20 that divide those responsibilities... and help our local governments work in concert with the federal government.”33 The Department of Homeland Security spelled it out even more explicitly, vowing that its mission was sound – a surefire means of “transforming and realigning the current confusing patchwork of government activities” into one unified department.34
Well, it didn’t turn out quite as planned, did it?
All this collective, collaborative information sharing has really only led to confusing and overlapping intelligence that has little to do with terrorism. It’s also fueled the local police drive for better technology, more militarized training, and more influence and reach with crime-fighting tools – including legislative and judicial leeway.
The Department of Homeland Security’s 2013 success stories for fusion centers don’t even predominantly speak to terrorism cases. They detail crime stories and how the fusion centers helped.
For instance, the Central Florida Intelligence Exchange, the Tennessee Fusion Center, and the Georgia Information Sharing and Analysis Center were credited on the DHS website’s success story section with a joint investigation that led to the arrest of an individual for production of child pornography. A second success story spoke of another collaborative investigation – between the Southwest Texas Fusion Center, the Minnesota Fusion Center, two local police and sheriff departments in Minnesota, and both San Antonio’s FBI Joint Terrorism Task Force and Minnesota Joint Terrorism Task Force – that ultimately led to the arrest of a militia group leader.35 Authorities did report finding Molotov cocktails, suspected pipe bombs, and various types of firearms at this suspect’s home – but that’s hardly the type of terrorist threat fusion centers were touted as uprooting.
And that leads to a major problem with these fusion centers: they’ve branched out from their core mission of rooting out terrorism and have taken on a more militarized police role.
Now combine that need of fusion centers to keep busy – to justify their existence and continued funding – and their ensuing mission creep into criminal investigations, with the likes of the federal Nationwide Suspicious Activity Reporting Initiative, and it’s a recipe for privacy rights disaster.
The NSI, Nationwide SAR Initiative, is a partnership program among federal, state, and local law enforcement to report and disseminate, as its name suggests, suspicious activities.36 That information is then fed through the chain of fusion centers and up the ladder to federal law partners for analysis.37 The aim, once again, is to root out terrorists before they attack. But the information provided is often shaky at best. The suspicious report can generate from a local police officer – or from a private citizen, completely unschooled in law enforcement techniques. Hopefully, if it is the latter, it’s not a case of a private citizen taking revenge on a neighbor for some perceived slight.
Regardless, the local police department that fields the complaint of suspicious activity then forwards the information to the state fusion center.38 Analysts at the fusion center log the data into a computer and then determine if the suspicious activity merits immediate investigation.
Either way, that data is shared with higher-ranking law enforcement officers, including the FBI.39 Once information makes it to the fusion center, a file is created. But what happens to the information in that file is largely unknown.
The FBI maintains the information in its SAR database, eGuardian, often for years.40 Civil rights groups say these files can stay in “open” mode, allowing law enforcement to add information as they collect it, or stumble upon it, or otherwise obtain it.41 Suddenly, that file of the unidentified suspicious-looking guy seen snapping photos of an urban police station and jotting notes on a piece of paper becomes thicker, filled in and fleshed out with information collected over the years about his name, place of employment, marriage situation, and banking habits.
Sound too conspiracy theory to be true? Think again.
The Department of Justice has issued guidance on how law enforcement might vet suspicious activities. But these standards are broad. The Los Angeles Police Department, for example, once considered individuals caught peering through binoculars in public, or scribbling on notepads and drawing diagrams, suspicious characters, worthy of reporting up the fusion center chain.42
On top of that, the Department of Homeland Security works with the Department of Justice to further root out terrorists and criminals via the SAR, or NSI, program with a simple public relations campaign even a five-year-old can remember: “If you see something, say something.”43 On its website, DHS says it’s looking to expand the campaign around the nation by “partnering with a variety of entities, including: transportation systems, universities, states, cities, sports leagues and local law enforcement.”44
Be careful what you say; Big Brother has some pretty big ears. As DHS indicates, the trend is only for more data collection.
We’ve already seen a significant expansion in government powers based on the justification of battling terrorism in just the past few years. What used to be the domain of the federal authorities has now been taken up by state – and even local – law enforcement authorities.45 And the danger of so much data collection by government at all levels is multifaceted: the more agencies that collect information, the harder it is to regulate how that information is used – and guarantee whether that information can be protected. Moreover, the harder it is to track what government does with that information years down the line as generation gives way to generation.