The End of Privacy

Posted on Jan 24, 2008

By Elliot D. Cohen

Amid the controversy brewing in the Senate over Foreign Intelligence Surveillance Act (FISA) reform, the Bush administration appears to have changed its strategy and is devising a bold new plan that would strip away FISA protections in favor of a system of wholesale government monitoring of every American’s Internet activities. Now the national director of intelligence is predicting a disastrous cyber-terrorist attack on the U.S. if this scheme isn’t instituted.

It is no secret that the Bush administration has already been spying on the e-mail, voice-over-IP, and other Internet exchanges between American citizens since as early as and possibly earlier than Sept. 11, 2001. The National Security Agency has set up shop in the hubs of major telecom corporations, notably AT&T, installing equipment that makes copies of the contents of all Internet traffic, routing it to a government database and then using natural language parsing technology to sift through and analyze the data using undisclosed search criteria. It has done this without judicial oversight and obviously without the consent of the millions of Americans under surveillance. Given any rational interpretation of the Fourth Amendment, its mass spying operation is illegal and unconstitutional. 

But now the administration wants to make these illegal activities legal. And why is that? According to National Director of Intelligence Mike McConnell, who is now drafting the proposal, an attack on a single U.S. bank by the 9/11 terrorists would have had a far more serious impact on the U.S. economy than the destruction of the Twin Towers. “My prediction is that we’re going to screw around with this until something horrendous happens,” said McConnell. So the way to prevent this from happening, he claims, is to give the government the power to spy at will on the content of all e-mails, file transfers and Web searches.

McConnell’s prediction of something “horrendous” happening unless we grant government this authority has a tone similar to that of the fear-mongering call to arms against terrorism that President Bush sounded before taking us to war in Iraq. Now, Americans are about to be asked to surrender their Fourth Amendment rights because of a vague and unsupported prediction of the dangers and costs of cyber-terrorism.

The analogy with the campaign to frighten us into war with Iraq gets even stronger when it becomes evident that along with the establishing of American forces in Iraq, the cyber-security McConnell is calling for was, all along, part of the strategic plan, devised by Dick Cheney and several other present and former high-level Bush administration officials, to establish America as the world’s supreme superpower. This plan, known as the Project for the New American Century, unequivocally recognized “an imperative” for government to not only secure the Internet against cyber-attacks but also to control and use it offensively against its adversaries. The Project for the New American Century also maintained that “the process of transformation” it envisioned (which included the militarization and control of the Internet) was “likely to be a long one, absent some catastrophic and catalyzing event—like a new Pearl Harbor.” All that appears to be lacking to make the analogy complete is the “horrendous” cyber-attack—the chilling analog of the 9/11 attacks—that McConnell now predicts.

Apparently, the Bush administration had hoped to continue its mass surveillance program in secret, but as many as 40 civil suits were filed against AT&T and other telecoms, threatening to blow the government’s illegal spying activities wide open. Unable to have these cases dismissed in appellate court by once again playing the national-security card, the administration drafted and tried to push through Congress a version of the FISA Amendments Act of 2007 that gave retroactive immunity to telecom corporations for their assistance in helping the government spy en mass on Americans without a court warrant. The administration’s plan was to use Congress’ passage of this provision of immunity to nullify any cause of civil action against the telecoms, thereby pre-empting the exposure of the administration’s own illegal activities. 

Two versions of the FISA bill emerged, one from the Senate Intelligence Committee drafted largely by Cheney himself, which contained the immunity provision, and another from the Senate Judiciary Committee that did not contain the provision. Although Senate Majority leader Harry Reid inauspiciously chose the former to bring to the Senate floor, the bill was surrounded by much controversy. There had been well organized grass-roots pressure to stop it from passing, and the House had already passed a version that did not include the retroactive immunity provision. Thus, in the face of a filibuster threat by Sen. Chris Dodd (D-Conn.), Reid postponed the discussion until the January 2008 session.

Now Reid has tried to put off the FISA Amendments Act once again by asking Republicans to extend, for one more month, the Protect America Act of 2007, an interim FISA reform act that is due to sunset in February. However, Cheney has urged Congress  to pass his version of the FISA Amendments Act now. “We can always revisit a law that’s on the books. That’s part of the job of the elected branches of government,” Cheney said. “But there is no sound reason to pass critical legislation ... and slap an expiration date on it.”

Cheney’s point about the possibility of later revisiting the FISA Amendments Act after it becomes law may foreshadow replacing it in the coming months with a law based on McConnell’s plan, which is due to emerge in February. This would mark a gradual descent into divesting Americans entirely of their Fourth Amendment right to privacy—first by blocking their ability to sue the telecoms for violating their privacy and then by giving the government the same legal protection. After all, the FISA Amendments Act still requires the government to get warrants for spying on American citizens even if it does not afford adequate judicial oversight in enforcing this mandate. McConnell’s proposal, on the other hand, would make no bones about spying on Americans without warrants, thereby contradicting any meaningful FISA reform.

President Bush has already made clear he would veto any FISA bill that did not give retroactive immunity to the telecoms. However, if McConnell’s soon to be unveiled spy-at-will plan is turned into law, a separate law giving retroactive immunity to the telecoms would be unnecessary. All Bush and Cheney would need to do to protect themselves from criminal liability would be to make the new spy-at-will law retroactive in effect from the inception of the illegal NSA surveillance program. This would also be sufficient to deflate the civil suits filed against the telecoms because the past illegal spying activities that these companies conducted on behalf of the government would then become “legal.” Indeed, the Bush administration has already done this sort of legal retro-dating and nullifying of civil rights and gotten it through Congress. For example, the Military Commissions Act of 2006 conveniently gave Bush the power to decide whether someone—including himself—is guilty of torture, irrespective of the Geneva Conventions, and it made this authority retroactive to Nov. 26, 1997. 

Whatever the final disposition of FISA in the coming weeks or months, the administration is now bracing to take a much more aggressive posture that would seek abridgement of civil liberties in its usual fashion: by fear-mongering and warnings that our homeland will be attacked by terrorists (this time of the menacing hacker variety) unless we the people surrender our Fourth Amendment right to privacy and give government the authority to inspect even our most personal and intimate messages.

It would be a mistake to underestimate the resolve of the Bush administration. But it would be a bigger mistake for Americans not to stand united against this familiar pattern of government scare tactics and manipulation. There are grave dangers to the survival of democracy posed by allowing any present or future government unfettered access to all of our private electronic communications. These dangers must be carefully weighed against the dubious and unproven benefits that granting such an awesome power to government might have on fending off cyber-attacks. 

Elliot D. Cohen, PhD, is a media ethicist and critic. His most recent book is “The Last Days of Democracy: How Big Media and Power-Hungry Government Are Turning America Into a Dictatorship.” He is a first-prize winner of the 2007 Project Censored Award.

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