ON AN ACT TO REALLY PROTECT AMERICA

SHELL GAMES

This New York Times article titled "Wider Spying Fuels Aid Plan for Telecom Industry" is worth spending some time on. 

It's an eye-opening look at not just the electronic surveillance efforts by government agencies in the post 9/11 world, but also offers a glimpse at the reality of this surveillance for the past few decades.  The piece is about the efforts of the administration to gain Congressional extensions of certain provisions of The Protect America Act of 2007 that expire in February of 2008  (As an aside, don't you love how they title these things in easy to digest sound-bites for the six o'clock news?).

First, it sets up the current issue:

"For months, the Bush administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program.

But the battle is really about something much bigger. At stake is the federal government’s extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime.

The N.S.A.’s reliance on telecommunications companies is broader and deeper than ever before, according to government and industry officials, yet that alliance is strained by legal worries and the fear of public exposure.

To detect narcotics trafficking, for example, the government has been collecting the phone records of thousands of Americans and others inside the United States who call people in Latin America, according to several government officials who spoke on the condition of anonymity because the program remains classified.

But in 2004, one major phone carrier balked at turning over its customers’ records. Worried about possible privacy violations or public relations problems, company executives declined to help the operation, which has not been previously disclosed."

Then, it looks at how the situation came to be:

"The federal government’s reliance on private industry has been driven by changes in technology. Two decades ago, telephone calls and other communications traveled mostly through the air, relayed along microwave towers or bounced off satellites.

The N.S.A. could vacuum up phone, fax and data traffic merely by erecting its own satellite dishes. But the fiber optics revolution has sent more and more international communications by land and undersea cable, forcing the agency to seek company cooperation to get access."

What's extraordinary about this paragraph is not the revelation about the changes in technology, but the tacit acknowledgment in a mainstream newspaper, that the government has been infringing on the privacy of the  mainstream population, possibly counter to existing laws, for decades.  The change in technologies merely brought the activity into the public eye.  If laws of the nation, be they right or wrong, were broken, deserves separate articles and discussions of their own.  Just like the current debates on whether immigration laws, be they right or wrong, need to be followed to the letter of the law, or be changed.

This is especially under-lined in a subsequent place in the article:

"While the N.S.A. operates under restrictions on domestic spying, the companies have broader concerns — customers’ demands for privacy and shareholders’ worries about bad publicity."

Right, the N.S.A. has long had restrictions on it's activities on the domestic front.  Yet, apparently this activity of vacuuming "up phone, fax and data traffic" via the airwaves has been going on for decades.

The shift in technologies merely places a whole host of private sector companies in the legal and PR spotlight because of a government activity that has been tacitly acknowledged by the mainstream and population for the longest time.

There are some eye-opening examples of how private sector communications firms have been working with government agencies in recent times that may be new to some...here are two examples:

"Other N.S.A. initiatives have stirred concerns among phone company workers. A lawsuit was filed in federal court in New Jersey challenging the agency’s wiretapping operations. It claims that in February 2001, just days before agency officials met with Qwest officials, the N.S.A. met with AT&T officials to discuss replicating a network center in Bedminster, N.J., to give the agency access to all the global phone and e-mail traffic that ran through it..."

"...lawsuit accuses Verizon of setting up a dedicated fiber optic line from New Jersey to Quantico, Va., home to a large military base, allowing government officials to gain access to all communications flowing through the carrier’s operations center. In an interview, a former consultant who worked on internal security said he had tried numerous times to install safeguards on the line to prevent hacking on the system, as he was doing for other lines at the operations center, but his ideas were rejected by a senior security official."

Suddenly movies like "The Conversation" and "Enemy of the State" aren't just an exercise in conspiracy fiction.

The article talks about how leading administration representatives have been urging Congress to extend this legislation in recent weeks:

"The intelligence community cannot go it alone,” Mike McConnell, the director of national intelligence, wrote in a New York Times Op-Ed article Monday urging Congress to pass the immunity provision. “Those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits.”

Attorney General Michael B. Mukasey echoed that theme in an op-ed article of his own in The Los Angeles Times on Wednesday, saying private companies would be reluctant to provide their “full-hearted help” if they were not given legal protections."

I went and looked up both those op-ed pieces (see them here for the McConnell and Mukasey pieces). 

They both justify the extension on the basis of foreign intelligence activities on post 9/11 security concerns.  Here's how the McConnell piece provocatively titled "Help Me Spy on Al Qaeda", justifies the extension:

"Before the Protect America Act was enacted, to monitor the communications of foreign intelligence targets outside the United States, in some cases we had to operate under the Foreign Intelligence Surveillance Act, known as FISA, a law that had not kept pace with changes in technology. In a significant number of these cases, FISA required us to obtain a court order. This requirement slowed — and sometimes prevented — our ability to collect timely foreign intelligence."

Yet the New York Times article on the whole issue makes it clear that the Act is being used for a much wider scope of activities.

This bait and switch form of legal authorization should be disturbing to citizens from both sides of the political aisle.

Government surveillance by and itself is not the real issue here, but rather the legal frameworks with the appropriate checks and balances, being in place.

So if this wider range of monitoring has been going on for decades, then it needs to be discussed much more widely in the mainstream media and better understood before the population at large can be asked to make the right collective decisions.  And they need to go way easy on the post 9/11 hyperbole.

Comments

[Alex Tolley]

"What's extraordinary about this paragraph is not the revelation about the changes in technology, but the tacit acknowledgment in a mainstream newspaper, that the government has been infringing on the privacy of the mainstream population, possibly counter to existing laws, for decades."

Yes, that was the part that drew my attention too. It is quite clear that corporations have been too cooperative with government agencies in allowing constitutionally protected rights to be evaded. It really is about time that the explicit rights of privacy of communications be respected, not just snail mail, but electronic communications as well.