Volume 5 number 4, May 2003 Snooping, Secrecy, and Suspicion Contents: As a result of my work with the Alaska Civil Liberties Union (ACLU) and years promoting intellectual freedom for library users, I was invited to participate in then-Lieutenant Governor Ulmer’s Summit on Privacy that ended Sept. 7, 2001. I was heartened to see that most participants shared my concern about emphasizing privacy as a right guaranteed under the Alaska Constitution As you know, our world soon changed dramatically. USA PATRIOT Act, passed on 10/21/01 Within six weeks of 9/11, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act, known as the USA PATRIOT Act. Named to create its acronym, the PATRIOT Act was an emotional response to the terrorist attacks. It was passed before all members of Congress read the bill and is, according to Rep. Don Young, "the worst piece of legislation we’ve ever passed." (transcript, Alaska Public Radio’s Talk of Alaska, 2/11/03) According to a congressional staffer, it contains "all the stuff we’ve been trying to pass for at least ten years and haven’t been able to." The Act reverses controls placed on domestic terrorism surveillance guidelines adopted in 1976 after the abuses of the Counterintelligence Program (COINTELPRO) were revealed by Sen. Frank Church. Civil rights and anti-war activists who were neither accused nor suspected of crimes became targets of government investigation because of their outspoken criticism of government policies. Those guidelines required evidence of criminal activity. "Without this restriction, covert surveillance of political dissidents with no known connection to criminal activity is bound to resume." (Newsday, 9/16/02) Libraries also have experience with surveillance through the FBI Library Awareness Program, which occurred between 1973 and the late 1980s. The FBI wanted libraries to monitor what Soviet citizens were reading, and agents often enlisted or intimidated clerical staff into helping them. The PATRIOT Act amends fifteen federal statutes and affects at least ten basic constitutional rights, in addition to the separation of powers:
The Act makes disturbing changes in how law enforcement agents obtain court orders, how they handle suspects, and who they investigate. Perhaps the most important change is the level of proof necessary to obtain an order. Before the PATRIOT Act, agents had to prove "probable cause" of illegal activity in a criminal court. Now they can go to the Foreign Intelligence Surveillance Act (FISA) court and claim the order is needed to investigate activity that is merely "relevant to" an ongoing investigation. A FISA court cannot deny requests if they include the required information, despite the court’s own statement that Department of Justice (DOJ) officials "had frequently misled the court" about their real targets. FISA orders are "gagged," so recipients cannot reveal they have been served with one. The DOJ applied for more than 1,000 FISA warrants in 2002, and Attorney General Ashcroft signed more than 170 "emergency foreign intelligence warrants," three times the number authorized in the preceding twenty-three years (Washington Post, 3/24/03). The FBI is using another type of order, called National Security Letters. NSLs are administrative subpoenas issued by the FBI, not by courts, and are also gagged. According to an FBI memo issued on 11/28/01,"The USA PATRIOT Act has greatly simplified the NSL process. The FBI...is no longer required to certify that...the information sought pertains to a foreign power." Since 10/11/01, NSLs issued fill more than five pages of logs, as the ACLU and the Electronic Privacy Information Center (EPIC) discovered in a Freedom of Information Act (FOIA) request (Washington Post, 3/24/03). Responses suggest "the government is using this power more extensively than other surveillance powers—which require court approval—granted under the USA PATRIOT Act." (ACLU, 4/3/03). Another memo, printed from the FBI website, instructs agents how to remove computers without a warrant at all. The Act covers any tangible thing, including books, records, papers, documents, and more, from any entity, including libraries, private organizations, and medical facilities, to name a few. They "can be records of the target or those of a third party with connections to the suspect." (Daily Herald, 1/24/03). It permits sharing of information among all levels and types of law enforcement agencies; taping of attorney-client communications; roving wiretaps to follow a suspect across access media and locations, e.g., from a public phone to a friend’s computer to a library computer, from one city or state to another; surveillance of domestic groups and routine mining of databases for personal information without even suspicion of criminal or terrorist activity and without guidelines for the use or sharing of the information or for limits on its retention; and the use of "delayed notice," or "sneak & peak" using Magic Lantern keystroke capture software. (MSNBC, 10/24/01) It also expands the use of preliminary investigations, which do not require reasonable indication of criminal or terrorist activity and which have no time limits or internal or independent review. (ACLU, Center for Democracy and Technology, Freedom Forum) It denies the press and the public access to the names of detainees or to Immigration and Naturalization Service (INS) hearings on the deportation of suspects. That provision was struck down by a federal appeals court in August 2002, but the decision is likely to be appealed. Recently, a group of media giants including ABC, the Associated Press, the New York Times, the Hearst Corporation, and others filed another suit claiming the provision violates their First Amendment rights. (New York Times, 4/4/03) It permits the detention of suspects based solely on their ethnicity or religion. An estimated 2,000 suspects have been detained (as of 1/03), only four were charged, and none were convicted of terrorist activities. (Nation, 1/13-20/03) Subsequently, the Government Accounting Office, reporting on the number of cases that were misclassified as terrorist, says the DOJ doesn’t have sufficient oversight and policies to ensure the accuracy of its own statistics. (GoveExec.com, 2/19/03) In one instance (3/03), "the FBI flew in 120 agents, full-armed in riot gear, on two C-17 military aircraft to Moscow, Idaho, to arrest one Saudi graduate student for visa fraud. The raid went down in University of Idaho student housing at 4:30 a.m., terrorizing not only the suspect’s family (wife and three elementary-age children), but also all the other families of neighboring students.... At least twenty other students who had the misfortune to either know the suspect or to have some other immigration irregularities were also subjected to substantial, surprise interrogations of more than four hours, although none were detained or arrested." (Law professor, University of Idaho, on IFACTION, 3/10/03) In another, sixty of sixty-two recent terrorism indictments in New Jersey were against "Middle Eastern students charged with paying others to take their English proficiency tests." (Philadelphia Inquirer, 3/2/03) Aside from the civil liberties implications, such tactics are likely to cause tens of thousands of foreign students each year to go somewhere else for their education, according to professors at Harvard Law School and the Kennedy School of Government in a paper that examined the failure of cost-benefit analysis of the Act. (New York Times, 3/11/03) The Act can deny suspects access to attorneys or the courts, a provision that was upheld in the Yaser Hamdi case, in which the government claims it can detain United States citizens as "enemy combatants" on an affirmation by a Pentagon source. "The government has asserted nothing less than the ability to designate certain individuals—at the whim of the president—as beyond the shelter of the Bill of Rights" (Washington Post, 1/10/03) and claims that civilian courts should not interfere with military decisions (Washington Post, 4/2/03). The government believes the ruling also applies to Jose Padilla, arrested in the U.S. (New York Times, 1/10/03) The district court ordered the government to allow lawyers to meet with Padilla, who "must have the opportunity to present evidence that undermines" the government’s accusations stated publicly by Attorney General Ashcroft, although no formal charges have been filed (CNN.com 3/11/03). In response, Rep. Barney Frank and others sponsored the "Military Tribunals Act," to replace the administration’s military commissions, which were established by executive order, to "preserve the basic rights of habeus corpus, appeal, and due process." (Federation of American Scientists Project on Government Secrecy 3/18/03) As one reporter wrote, "I could call the FBI tomorrow and tell them you’re involved in terrorist activities, maybe manufacture some evidence against you. And that’s it. You’re gone. No lawyer, no ‘one phone call,’ no Miranda rights, no compulsion for the government to account for your whereabouts or lay out the case against you, no chance to tell your side of the story. You have been disappeared, as surely as if you lived in North Korea, Cuba, or Iraq." (Knight Ridder/Tribune, 1/14/03) It contains a broad definition of "domestic terrorism," which could be applied to political activity or protest, or even totally innocent activities. For example, a student at Haverford College was arrested for taking pictures of the regional transit authority in Philadelphia for a class. He was held for a few hours, but the faculty are concerned that his arrest may remain on his record and are trying to have it expunged. (Minutes from a faculty meeting at Bryn Mawr College [affiliated with Haverford], 2/13/03) The Act can be used to obtain the records of anyone, but U.S. citizens cannot be investigated "solely" on the basis of activities protected by the First Amendment. However, speech that endangers national security is not protected by the First Amendment. In view of Attorney General Ashcroft’s assertion to Congress that asking any questions about civil liberties is aiding the terrorists, he would likely consider this article outside the protection of the First Amendment and evidence enough to suspect me of "domestic terrorism." By contrast, here is a quote from a former U.S. president: "To announce that there must be no criticism of the president, or that we are to stand by the president, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public."(Theodore Roosevelt) Libraries and the USA PATRIOT Act Although U.S. Attorney Tim Burgess claims that concerns from the library community are exaggerated because "libraries and bookstores aren’t even mentioned," the records of libraries and bookstores are included in Section 215 of the Act, because nothing is excluded. (Fairbanks Daily News-Miner, 4/10/03) I believe this provision has alarmed many people and prompted them to examine the Act more closely. Knowing that Big Brother may be snooping into what they read is an abuse that resonates deeply with the American public. As the American Library Association (ALA) said in a policy it adopted in June 2002, "When users recognize or fear that their privacy or confidentiality is compromised, true freedom of inquiry no longer exists." In January 2002, the DOJ’s David E. Green participated in a panel discussion at an ALA conference. He claimed that the Act "merely updates the law to recognize the new technology." Also, "since they can already get subpoenas, [the] new law just lets them get records ‘relevant to’ a terrorism investigation. [Therefore, there is] no reason ever to use [the] new authority!" (Green handout) A University of Illinois Library Research Center survey of public libraries on 12/4/01 revealed that more than 200 public libraries had already been asked for information under the law, and 20 percent said they had reported patron records or behavior to outside authorities. In a subsequent survey of 906 libraries, 545 said they had been visited by law enforcement in the year after 9/11, and nearly 50 percent voluntarily complied with requests for information without a court order. (Library Journal, Newsletter on Intellectual Freedom) Unlike the subpoenas to which Green referred, a FISA order is a search warrant, which is immediately executable. The library may not have an opportunity to check with legal counsel before the search. FISA orders contain a "gag" provision, which means the library can’t tell anyone they’ve been served the order, much less alert the target that his or her records are being investigated. Many libraries do not have an attorney, and to ask anyone else for help would violate the gag order. The Office of Intellectual Freedom (OIF) of the ALA told those libraries to call and say only ,"I need to talk to an attorney." They would then put those libraries in touch with legal help. I received just such a request from an Alaska library, and I believe they were served with a FISA order. Also, it appears the FBI is using NSLs in libraries to avoid connection with oversight of orders under Sec. 215 of the Act. All records are subject to search—circulation records, preschool story time sign up, interlibrary loans, book challenges, newly developed digital reference, Internet use logs, and other instances. Libraries have begun conducting privacy audits to be sure they need to keep the personal information they have traditionally collected and to get rid of information they don’t need. Libraries are also writing procedures for handling law enforcement requests, usually instructing staff to refer questions to the director. Part of the problem they now face is an overwhelming number of orders that might walk in the door, as demonstrated by a nine-page chart describing the variety of orders, courts, targets, media, and information involved in a request. If an order comes from a federal court, it may or may not include a gag order, and it may or may not allow the agents to search immediately. If the order comes from a state or local court, it probably won’t include a gag provision, and it may or may not be immediately executable. However, state or local orders will be subject to the Alaska statute protecting the confidentiality of library records and the state constitution guaranteeing the right to privacy, so those orders must be more narrowly targeted than the federal order. Or at least, we think that’s the case. Requests for how Sec. 215 has been applied came first in FOIA requests from groups like the ACLU and EPIC. The DOJ refused to comply with these initial requests, until courts ordered them to comply. Even then, they provided reports that were almost completely redacted and therefore meaningless. The groups are back in court seeking real compliance with the order. Other requests have come from members of Congress. Reps. Sensenbrenner and Conyers submitted a letter to DOJ asking the number of times Sec. 215 had been used to get library records, saying, "The PATRIOT Act’s surveillance provisions effect a dramatic expansion in the government’s ability clandestinely to monitor people living in the U.S., including citizens who are not suspected of contravening any law or of acting on behalf of a foreign power. The public is entitled to know how the DOJ is using the vast surveillance powers that the PATRIOT Act authorizes." (Federation of American Scientists, 3/28/03). In a second attempt from House Judiciary Committee, Sensenbrenner and Conyers submitted thirty-eight multi-part questions asking about domestic surveillance, FISA, detention of suspected terrorists, and related topics (FAS, 4/4/03). In yet another attempt, Sen. Leahy submitted a request about Sec. 215, and after nine months (6/02–2/03) DOJ still had not answered forty percent of the questions but said, "The American people surrender their right of privacy when they buy books in bookstores or borrow them from libraries." (American Booksellers Foundation for Free Expression, 1/17/03) Libraries across the country report incidents. Computers were removed from a library in Washington without a court order, and every public internet-access computer was removed from a library in Wisconsin. (American Libraries, 2/24/02) In New Mexico, Andrew O’Connor, a former public defender, was arrested in St. John’s College Library, taken away in handcuffs, and held for five hours, after he was accused of making threatening remarks about President Bush in a chatroom. O’Connor claims he said the president is out of control to a woman who was wearing an anti-war button in the library. (American Libraries, 2/24/03) In Ohio, "...Homeland Security appeared at the Lima Public Library on 3/27/03 to ‘update’ the Allen County hazardous materials Emergency Plan. They were asked for ID and given the loose-leaf binder by the Reference staff. When the staff checked the binder back on the shelf, they found that the ‘update’ was the removal of the entire contents of the manual, and its replacement was a page referring all inquiries to their offices." "It is the official policy of the library that all donated materials become the property of the library, and their removal is subject to our approval. If any other Allen County resident had done this, we would have considered it a theft. ...(There are) over 140 sites of chemical holdings within Allen County. (Now that the information is only available at the Department of Homeland Security office), proper ID is required to see the material, a valid Ohio driver’s license which will be checked to ascertain whether or not there are any warrants out against the holder." (LISNews.com, 4/3/03) Underlying these attempts to gain records of library use is an absurd assumption that it’s possible to equate what people will do based on what they read. I frequently buy material for the public library about explosives and blasting, because Fairbanks is a mining center; I think it’s important that miners have access to current, accurate information about safe handling procedures. Will they continue to use these materials if they think the FBI is looking over their shoulders, much less adding their names to "watch" lists? Libraries are doing what they can to educate their users to protect their privacy themselves. And although the new laws may have changed our ability to protect our users’ privacy, they have not changed our professional obligation to try. Homeland Security Act, Passed on 7/26/02 HSA consolidates twenty-two agencies into the DHS, a cabinet level department with 170,000 employees, which includes the Coast Guard, Customs Service, Secret Service, INS, and the new Transportation Security Administration. It’s structured around four directorates, one of which is Information Analysis and Infrastructure Protection. Its responsibility is "To access, receive, and analyze law enforcement information, intelligence information, and other information from agencies of the Federal Government, State and local government agencies (including law enforcement agencies), and private sector entities, and to integrate such information." "The Secretary shall also have access to other information...that may be collected, possessed, or prepared by an agency of the Federal Government as the President may further provide." HSA also creates the Homeland Security Advanced Research Projects Agency, which has funds to award "competitive, merit-reviewed grants, cooperative agreements or contracts to public or private entities, including businesses, federally funded research and development centers, and universities." This fund received an appropriation of $500 million for fiscal year 2003 and "such sums as may be necessary thereafter." Under the Cyber Security section, HSA further lowers the standard necessary to obtain information, so agencies need show only "good faith" that it’s needed to address "danger;" (Philadelphia Inquirer, 11/24/02) it expands the network of law enforcement agents empowered to collect information and the type and source of information available for collection and scrutiny; it authorizes agencies to receive wiretap and grand jury information collected by any other agency; and it decreases the ability of everyone to monitor the government’s activities. (Electronic Frontiers Foundation, Center for Democracy and Technology, Philadelphia Inquirer) The Act codifies many directives issued after the PATRIOT Act was passed to cover problems DOJ discovered. It creates "sensitive but unclassified" as an undefined category of information that will not be released. As a result, "an employee of the Drug Enforcement A gency has been convicted of theft of government property for leaking confidential but unclassified government information to the London Times." (FAS 1/15/03) There’s an exemption from FOIA for information that is voluntarily submitted, so the public won’t be able to hold businesses accountable for potentially dangerous materials or practices, particularly security weaknesses, if that information is volunteered. There is also an exemption from FACA or the Federal Advisory Committee Act that will allow government to hide industry representatives on advisory committees, so the public won’t be able to uncover special interest influence on government policy or law. This provision is clearly a reaction to the problems Vice President Cheney encountered over his energy advisory committee. The FOIA exemption will allow businesses to disclose most records voluntarily without penalty or discovery. In a survey of 797 chief security officers in major corporations, nearly twenty-five percent said they’d supply information about customers to law enforcement, and that figure increased to forty-three percent if the investigation involved national security. (New York Times, 12/18/02) Joseph Sullivan, director of the law enforcement and compliance department at eBay, revealed that eBay retains all data about every transaction and individual, makes that data available to law enforcement whether or not they have a court order, employs six investigators who impersonate people for law-enforcement purposes, and uses Paypal records for more complete information. (Haaretzdaily.com 2/03) The Act criminalizes "whistle-blowing" by federal employees who leak any voluntarily submitted critical infrastructure information, the information now exempt from FOIA. In response, Sen. Leahy and four other senators introduced the "Restore Freedom of Information Act" to replace some of the exemptions by limiting them to records that actually pertain to security, to protect legitimate whistleblowers, and to respect rather than preempt state and local FOIA laws (ALA Washington Office, 3/13/03) It categorizes hacking as a terrorist act, defining it as "actual, potential, or threatened interference with, attack on, compromise of, or incapacitation of critical infrastructure or protected systems by either physical or computer-based attack…that violates federal, state, or local law, harms interstate commerce of the United States, or threatens public health or safety." Don’t forget your passwords—repeated incorrect attempts may get you in trouble. It expressly forbids TIPS, the Terrorism Information and Prevention System, which was to enlist meter readers, delivery and postal employees, cable installers, and just about everyone else in the government’s efforts to keep an eye on the American public. One reporter who signed up to participate in the program was automatically forwarded to "America’s Most Wanted" television show when he called the TIPS line. He was told they’d been asked to take the FBI’s TIPS calls (ACLU press release, 8/6/02) Another FOIA exemption covers Transportation Security Administration (TSA) security directives. You can’t even see the regulations requiring ID in airports or reasons for being included on a "no-fly" list. (Politech, 1/14/03, EPIC, 4/9/03) There is a proposal to expand the Computer Assisted Passenger Prescreening System (CAPPS) to build a database of all information available about every passenger. All passengers will be assigned a risk level of green (okay to fly), yellow (required to undergo more intense scrutiny and security checks) or red (automatically call in the police to arrest the person), and they won’t be informed of their category, which will be encrypted onto their boarding passes. (New York Times, 3/11/03) Files may contain all kinds of travel and transactional data, shared with nearly any type of government authority and many private organizations and individuals, and will not be available for review or inspection by the data subjects. Americans will not be entitled to know whether files about them are being maintained or be able to correct errors. (Privacy Activism 2/23/02, Privacilla 2/21/03) "The infrastructure for the new system is to be tested on Delta Air Lines through three undisclosed airports beginning later in March... A government proposal on the program said that the data would be retained for fifty years, and a spokesman for the TSA said ‘Not a single database will be outside the bounds the law allows’." (New York Times, 3/6/03) The system is likely to build on existing airline and travel industry PNRs, or passenger name records, which may include the type of room the individual books on trips, a list of in-room movies viewed, and any special meal requests. "Every time a traveler makes a reservation, it generates a PNR. But PNRs are never deleted. Once created, they live on forever in one of the reservation databases." (Wired.com, 4/4/03) The devil’s in the details, as they say, and in laws, the detail often rests in the definitions. Two state laws demonstrate how easily a change in definitions can expand the reach of a law. For example:
In Oregon, proposed SB 742 identifies a terrorist as a person who "plans or participates in an act that is intended, by at least one of its participants, to disrupt" business, transportation, schools, government, or free assembly. A thinly veiled attempt to discourage anti-war demonstrations, it carries an automatic sentence of twenty-five years to life. (SierraTimes.com, 3/4/03) Finally, the National Strategy to Secure Cyberspace report is due soon from the Bush administration; it includes a proposal to require internet service providers to help build a centralized system to enable broad monitoring of the internet and, potentially, surveillance of its user. (New York Times, 12/20/02) Domestic Security Enhancement Act (DSEA)—proposed Known as PATRIOT Act II, the DSEA was drafted in secret by Attorney General Ashcroft and DOJ, which denied it existed even to the Senate Judiciary Committee as late as 2/1/03. However, a leaked memo shows that it was sent to Vice President Cheney and Speaker of the House Hastert on 1/10/03. DOJ claims that DSEA "will be filling the holes" of PATRIOT I, "refining things that will enable us to do our job." (Alternet.org, 4/3/03) It is opposed by an unlikely combination of the ACLU, Bill of Rights Defense Council, American Conservative Union, Americans for Tax Reform, NAACP, National Council of La Raza, Eagle Forum, and the Gun Owners of America, who are concerned that the NRA could be designated terrorists. (Sierra Times, 3/3/03, ACLU 4/3/03) One legal analyst said, "If the introduction of PATRIOT II in Congress coincides with the Iraq war, it may well be because the Administration has planned it that way, to take advantage of circumstances to ram the bill through both Houses quickly." (FindLaw, 2/17/03) Dick Armey’s view is "The Justice Deptartment seems to be running amok. This agency right now is the biggest threat to personal liberty in the country." (New Republic, 10/21/02) DSEA would allow monitoring of all types of communication without a court order for forty-eight hours or a wiretap up to fifteen days of those suspected of "activities threatening the national security interest," and it would allow police to delay notification of disclosure to the target for three months. It would expand the sharing of personal and criminal information among law enforcement agencies and would allow information obtained to be used in criminal prosecutions. It also would expand the use of NSLs for information in international and domestic terrorism and place authority for investigations in FBI field offices. "[A] federal felony relating to the ‘incriminating communication’ definition in the Act need not be an act of terrorism. It could be any federal crime, from the most major to the most minor, the most violent to the most excruciatingly technical. And that’s frightening." (FindLaw, 2/17/03) The Act defines "domestic terrorism" as activities that "involve acts dangerous to human life that are a violation of the criminal laws" and which "appear to be intended" to "intimidate or coerce civilians or the government," a definition broad enough to include traditional forms of political protest and civil disobedience. It also includes "’related preparatory .. activities,’ which could be interpreted broadly to include research and information gathering ... and have a significant ‘chilling’ effect on the public’s right to know by discouraging research of certain subjects and the collection of certain types of information." (OMBWatch, 2/10/03) It would allow people in official positions to be imprisoned for up to five years for revealing the existence of an anti-terrorism investigation (OMBWatch, 2/10/03); would grant immunity to businesses that phone in false terrorism tips, and would shelter federal agents engaged in illegal surveillance without a court order from criminal prosecution if they are following orders of high Executive Branch officials. The Act would authorize a DNA database of "suspected terrorists," which could include anyone associated with "suspected" groups. Samples could be collected without a court order, and those refusing the cheek-swab for the DNA analysis could be fined $200,000 and jailed for a year. It would also expand the death penalty to cover fifteen new offenses. It would authorize secret detentions by preempting federal litigation challenging it. The government would be instructed not to release any information about detainees held on suspicion of terrorist activities, until they are actually charged with a crime. As columnist Nat Hentoff put it, "for the first time in U.S. history, secret arrests will be specifically permitted." The Act would enable the government to expatriate a U.S. citizen "if, with the intent to relinquish his nationality, he becomes a member of, or provides material support to, a group that the U.S. has designated a ‘terrorist organization.’" Support would include training, defined as "instruction or teaching designed to impart a specific skill." Incredibly, it would allow the government to infer "intent" from a person’s association with a group designated "terrorist" and the category of disallowed associations could be broad enough to include Operation Rescue and People for the Ethical Treatment of Animals. Again Nat Hentoff pointed out, "While South Africa was ruled by an apartheid government, certain activities of the African National Congress were categorized as ‘terrorist,’ but many Americans provided support to the legal anti-apartheid work of that organization." (Village Voice, 2/28/03) Finally, it would repeal many of the original act’s "sunset provisions," which stipulated that the expanded new enforcement powers would be rescinded in 2005 and which were a concession to critics of the bill in Congress. (UPI, 3/10/02) Attempts to repeal the sunset provisions may come even without passing PATRIOT II if a bill written by Sen. Hatch and sponsored by Sens. Kyl and Schumer is passed. They introduced legislation that would repeal those provisions and that would allow federal agents to target suspects who have no affiliation with terrorist groups or foreign powers, known as the "Lone Wolf" provision. Although the sunset repeal has been pulled for now, the Senate passed the "Lone Wolf" on May 8. (New York Times, 4/9/03, EPIC 4/9/03, FAS, 5/9/03) Mark Corallo, a DOJ spokesman, said he expects the full Act to go to Congress later this year (Village Voice, 4/25/03). Christopher Pyle, who was a member of the Church Committee in the 70s, recently said, "We need a requiem mass for the Fourth Amendment, because it’s gone." (Sierra Times, 3/3/03) The little-known Data Quality Act, in effect on 10/1/02, forces federal agencies to remove confirmed data errors from websites and publications, which most people would agree is a good idea. On the other hand, one of the primary backers of this Act is the Center for Regulatory Effectiveness, which has asked the EPA to modify one of its sites to reflect scientific uncertainties about global climate change. One project that has received a lot of attention is the TIA or Total Information Awareness System. TIA was established without public notice or congressional hearings and is under the DOD’s Defense Advanced Research Projects Agency (DARPA), the folks who gave us Arpanet, which became the internet. Headed by John Poindexter, the former national security adviser to President Reagan who was convicted of lying to Congress, TIA received $110 million in funding for FY 2003, which prompted Sen. Grassley to ask "why DOD resources are being spent on research for domestic law enforcement." (letter, FAS) TIA is developing software to compile personal information of all types, from all sources, mostly already in place: "medical records, telephone calls, pay-per-view movies, prescription purchases, travel reservations, passport applications, records of divorces, court appearances, and practically any piece of electronically recorded information about you." (Washington Times, 12/02) The information collected is not subject to even minimal restrictions of HSA, but Adm. Poindexter said he has begun discussions with the National Academy of Science to finance a long-range study of privacy implications. (New York Times, 12/19/02) Gilman Louie, CEO of In-Q-Tel, a venture capital firm established by the CIA to invest in intelligence projects, warned about the dangers of amassing a large, unified database that would be available to government investigators. "If used as the main tool of surveillance, the data mining approach is too blunt an instrument, one likely to needlessly undermine individual freedom." (New York Times, 3/25/03) DOD established two new advisory committees to prevent close Congressional supervision (New York Times, 2/8/03), but Congress held up funding until the department explains the program in detail, including its impact on civil liberties, and barred deployment against U.S. citizens without prior Congressional approval (New York Times, 2/13/03). Despite this restriction on funding, DARPA awarded the Palo Alto Research Center a contract for more than $3.5 million for work on the electronic surveillance network, and Pentagon researchers completed the first set of test data in April (Washington Post, 5/8/03, InformationWeek.com 4/10/03). Other research projects at DARPA (CNET, 1/6/03) include Human ID at Distance, which includes biometric technologies of face recognition, "gait performance" detection, and the Odortype Detection Program, and the development of spybots that can fly day and night and that use infrared and video sensors. Designed by Lockheed Martin and code-named MicroStar, spybots have a 6" wingspan, weigh 86 grams, and cost about $10,000 each. Technical Problems for Numerate People: Assume you need to track 300 million people with 500 data points each. That’s 7.5 billion data points to examine, each day, not just once. Of course there aren’t enough people to perform the task just once, much less frequently enough to be meaningful. Also assume only a five percent error rate; there would still be far too many false positives and resulting injury to innocent people, particularly since errors tend to migrate across connected systems and keep recurring, so fixing them in one database won’t eliminate them (Politech, 12/9/02). At the same time, DOJ "lifted a requirement that the FBI ensure the accuracy and timeliness of information about criminals and crime victims before adding it to NCIC or National Crime Information Center...." (Washington Post, 3/25/03) NCIC currently contains 39 million records. (EPIC, 4/9/03) The FBI established the Terrorist Tracking Task Force, which maintains a "lookout list" and conducts intelligence analysis. President Bush also announced the Terrorist Threat Integration Center to fuse information collected domestically by police and internationally by spy agencies. (News.com 1/29/03) The Commerce Department has recommended the U.S. participate in an emerging electronic numbering system, know as ENUM, which will allow people to use one identifier for many different purposes, including mobile phones, e-mail, instant messaging and faxes, and which is designed to accelerate the convergence of the telephone network and the Internet. GPS, which is used extensively by law enforcement, would be required in every car in a 2002 proposal by tax assessors in Oregon. It’s also abused by stalkers. "Jim Bell, an internet essayist convicted of stalking federal agents, said before his arrest that he was sure the federal agencies were tailing him electronically. During Bell’s trial, it emerged that he was right: The police arm of the IRS was tracking him on their laptops with a legally implanted GPS bug inside Bell’s Nissan Maxima." (Declan McCullagh, ZDnet.org, 1/6/03) The government is getting around Privacy Act restrictions by paying millions of dollars a year to use commercial databases, like ChoicePoint, which claims to have records on nearly every American who uses a credit card and whose faulty records contributed to the wrongful purging of thousands of Florida voters in the 2000 election (SF Gate 1/19/03) The FDA approved a microchip to be implanted in humans for tracking and identification, although Applied Digital Systems, the company developing the chip, say they’re not working on anything but an external device. Radio Frequency Identification, known as RFID, uses miniscule microchips, half the size of a grain of sand, which listen for a radio query and then respond by transmitting their unique ID code using power from the initial radio signal to transmit. Retailers plan to install them on all consumer goods, but there’s no guarantee they’ll be disabled when leaving the store, and an increasing transmission range could become a problem. NASA has documents, revealed to EPIC in a FOIA request in 8/02, that talks about reading traveler’s minds and identifying suspicious thoughts through "non-invasive neuro-electric sensors," but it claims it has not approved research on mind reading. In contrast to an increasing number of tools to help people protect their privacy by controlling cookies and spyware or third party tracking programs, bills are being considered in some states that would extend the national Digital Millennium Copyright Act to prohibit any programs, like encryption, that mask the to/from lines of e-mail from the ISP. They would also ban Network Address Translation (NAT) used by most security firewalls. One of these bills is on the table in Alaska. (Freedom to Tinker, 3/28/03) Think about the trends toward smaller sensors, cheaper hardware, and ubiquitous wireless networks, and you’ll understand how massive the assault on privacy is likely to become. Vanishing Government Information The following quotes illustrate why government information is vanishing:
Most of the material is disappearing because of classification, but self-censorship, funding cuts, and ideological filters also contribute to the losses. According to the Information Security Oversight Office, which tracks classifications in government and industry, actions to classify documents recently increased forty-four percent to 33,020,887 (Los Angeles Times, 1/5/03), yet there are no criteria for removal, no means of appeal, no comprehensive list of removed documents, and no definition for "sensitive" even after HSA. "Many of the withdrawals mirrored efforts industry had been making for quite a few years," and no one knows what new material is simply not being distributed (New York Times, 1/3/03) The judicial foundation of the state secrets privilege is a 1953 Supreme Court decision which provides the basis for asserting that there are ‘military matters which, in the interest of national security, should not be divulged.’ Recently declassified documents reveal that case was based on false affidavits by the Air Force. (FAS, 3/4/03) By January, 2002, more than twenty federal agencies had removed material from their web pages, including 9,000 items from the DOE (energy), and 5,000 items from the NTIS site. Also, despite more than 32,000 releases of hazardous chemicals in 2002, the EPA removed all the Risk Management Plans with Offsite Consequence Analysis reports, which are required from chemical companies to describe worst case scenarios from chemical accidents. (Washington Post, 11/24/02) On Nov. 1, 2001, President Bush signed Executive Order #13,233, which limits access to presidential records, allows incumbent and former presidents and their families to veto the release of records, and ignores the Presidential Records Act of 1978, enacted after the abuses of the Nixon Administration. The United States Archivist cannot reject a claim of privilege under this Order, which will allow President Bush to keep information from his father’s presidential and vice-presidential years secret and which will include the activities of many members of his own administration from that era. The Association of American Publishers compiled a list of books that could not have been published had this order been in effect earlier, and the list includes such titles as John Adams by David McCullough and Lincoln by Doris Kearns Goodwin. (AAP, 3/1/02) The Bush Administration is attempting to insert secrecy into the congressional appropriations process where it had previously been unheard of. By excluding them from that process, "decision-makers determining the allocation could not be called as witnesses before hearings, and most fiscal data would be beyond the Appropriation Committee’s reach." (Washington Post, 4/6/03) Meanwhile, routine budget justification documents are being inexplicably withheld from congressional appropriators, provoking anger even among Republican lawmakers who are sympathetic to the Administration. (FAS, 4/7/03) In one incident, "when a panel of scientists was convened…last January to consider the potential terrorist threat that could arise from life science research, they soon reached a consensus that the threat was real…they concluded for a variety of familiar reasons that ‘openness in scientific research is the only way to go.’ On April 2, workshop participants were informed that the final workshop report advocating openness would be classified. (FAS, 4/2/03) At a meeting of the American Society of Newspaper Editors, Vice President Cheney, said it was "unfair" to characterize the administration as opposed to openness and that it is "commit[ted] to the free flow of information." (FAS, 4/10/03) The American Society of Microbiologists adopted a policy for screening journal articles for "sensitive" content after White House officials pleaded with them and other scientific society leaders to take the initiative or have controls imposed on their journals. (FAS, 8/14/02) The American Association for the Advancement of Science wrote guidelines for publishing sensitive material to avoid government regulation. Journals will adopt procedures to identify papers that might raise security issues. "In some cases, editors may conclude that the potential harm of publication outweighs the potential societal benefits. Under such circumstances the paper should be modified or not be published." (Rocky Mountain News, 2/18/03) PubScience, a free online searchable database that indexes and summarizes articles from more than 1,000 scientific journals, is no longer funded because it is said to compete with commercial products. (Los Angeles Times, 9/15/02) In the renewal of the ERIC contract, there is no mention anywhere of AskERIC, user services, publications, or the sixteen subject-specific clearinghouses. This contract would consolidate ERIC, one of the most important tools for research in education, into one facility that would maintain the database only. (ALA Council listserv, 4/13/03) The National Security Agency and other federal agencies are attaching strings to research funding for universities. (New York Times, 1/3/03) For example, MIT turned down $404,000 rather than let the government decide if it could use foreign workers on a project in its Artificial Intelligence Lab; CalTech allowed the Army Research Lab to review work on computer simulation before publication, an exception to its rules; and Cornell turned down funding when DOJ demanded the right to vet a publication on a study about physical abuse of college women. The U.S. Department of Education is revising its website to remove outdated information as well as any material that does not agree with the Bush administration initiatives or the No Child Left Behind Act. It will also delete access to the ERIC digests. (Education Week, 9/18/02) The Department of Health and Human Services removed information on using condoms, how abortion does not increase the risk of breast cancer, and how to run programs proven to reduce teenage sexual activity. Several members of Congress wrote the secretary: "Information that used to be based on science is being systematically removed from the public when it conflicts with the Administration’s political agenda." (New York Times, 11/26/02, 12/27/02) The Environmental Protection Agency has removed parts of resumes, including educational levels, awards, affiliations and even job experience, of political appointees and "asked Todd Carter, a reporter for Insight Magazine, to return the unredacted copies he obtained before the removals. He refused and posted the resumes showing that EPA had brought in former Enron employees." (SearchDay.com, 12/19/02) Finally, researchers are complaining with rising alarm that the Bush Administration is using political and ideological screening to try to ensure that its scientific consultants recommend policies that are in step with the political agenda of the White House. William R. Miller was asked to join a panel that advises the National Institute on Drug Abuse. When a Bush Administration staff member asked if he supported abortion rights or the death penalty for drug kingpins, and if he had voted for Bush, he apparently did not give the right answers and was not appointed. (Los Angeles Times, 12/23/02) Just Because You’re Paranoid, That Doesn’t Mean They’re Not Out to Get You Daniel Pipes, founder of Campus Watch, is urging "outsiders" (alumni, state legislators, parents of students and others) to pressure universities to "establish standards for media statements by faculty." Two professors targeted by Pipes said that faculty at institutions which depend on state funding and legislatures may censor themselves or face controls by their administrations. (Los Angeles Times, 2/27/02) Recently, Alaska State Sen. John Cowdery requested a list of U of A-affiliated people who had signed a petition opposing the Iraq war—"I’d be interested in looking at those names of the faculty there. If you would send it to us, because they’re down here asking for money as you speak." (Fairbanks Daily News-Miner, 4/13/03) The Government Accounting Office said that it will record the name of anyone requesting information about the Brady Bill exemption on antique guns, although the document itself is not classified. (ALA briefing, 1/02) ProHosters, an internet company in Virginia, posted the Pearl murder video with a note saying that Americans should decide for themselves if they should watch it. A few days earlier, the FBI had contacted them and several other internet sites that had posted the video and threatened obscenity charges if they did not remove it. (Reporters Committee for Freedom of the Press, 3/03) Sweden is offering refuge to U.S. officials who want to escape intimidation by the Bush Administration, "which has squelched dissent, imposed conformity and silence, demanded skewed analyses to justify its hard line, and repeatedly exaggerated or falsified intelligence information to inflate the Saddam threat. Blaine Williams, one of twenty-eight bureaucrats and their families to go to Sweden, said, "I can assure you that no one at CIA believes a word Bush said. What’s more, no one at CIA believes that Bush believes a word Bush said." (ChangingPlanet.org, 12/11/02) Barry Reingold, a sixty-year-old retired phone company worker, was visited by FBI agents after one of his fellow gym members turned him in following a conversation about Osama bin Laden. Reingold recalled saying, "Yeah, he’s horrible and did a horrible thing, but Bush has nothing to be proud of. He is a servant of the big oil companies, and his only interest in the Middle East is oil." (Village Voice) A.J. Brown, a student at Durham Technical Community College in North Carolina, was visited by two Secret Service agents and a Raleigh police officer, after they received a tip that she had "un-American activity" in her apartment. The tip was a report by someone who had seen a poster protesting then-Governor Bush’s record on the death penalty that showed him holding a noose. (Village Voice) When Seth Goldberg opened his suitcase in San Diego after a flight from Seattle, there was a handwritten note on the back of a notice saying his bags had been opened and inspected by the TSA that said, "We don’t appreciate your anti-American attitude!" He had two "No Iraq War" signs he’d picked up in Seattle. (Seattletimes.com, 3/15/03) Stephens Downs, a sixty-year-old lawyer for New York state, was arrested while shopping with his son when he refused to remove a t-shirt that said "Give peace a chance." (New York Times, 3/6/03) The U.S. Customs Service intercepted and opened a FedEx package between two AP reporters last September, seized a copy of an eight-year-old unclassified FBI lab report without obtaining a warrant or notifying the news agency, and turned it over to the FBI. (WashingtonPost.com, 3/13/03) The Denver Police Department was ordered to open 3,200 "spy files" on local activists and organizations they had compiled since about 1999. The department will purge files not related to criminal acts, but copies of all files will be kept by the city attorney’s office. (New York Times, 9/4/02, 4/18/03) The Phoenix FBI Joint Terrorism Task Force has handed out a brochure to law enforcement officers to help them identify potential "domestic terrorists." It reads, in part:
Sid Caspersen, the New Jersey director of the office of counter-terrorism, claims that if the nation escalates to red alert, "you will be assumed by authorities to be the enemy if you so much as venture outside your home." (Gannet state bureau, 3/15/03) Larry Musarra, who lives in Juneau, retired from the Coast Guard after twenty-three years of service. His name appears on an FBI terrorism watch list. Despite clearing his name last year, he is unable to remove it from a "no-fly" list, probably because someone thinks he’s of Middle Eastern, not Italian, descent. (Northern Rights, 12/02) "Mike Hawash was on his way home from his job at Intel in Portland, Ore., last month when FBI agents surrounded him in the company parking lot and took him into custody. At the same moment, agents armed with assault rifles were storming through Hawash’s home, terrifying his wife and three small children. The agents took Hawash to a federal prison outside of Portland, where he has been held in solitary confinement for nearly a month. Hawash is a thirty-eight-year-old immigrant—born on the West Bank and raised in Kuwait—who has been a U.S. citizen for fifteen years. He has not been charged with any crime, and there has not been any suggestion that he committed one. The Justice Department says Hawash is a witness, but it won’t say to what. It won’t say what information it wants from him, it won’t say what agents were hoping to find when they searched his house, it won’t say why he needs to be in custody, and it won’t say how long it plans to keep him there." (Salon.com, 4/18/03) Ralph Omholt bought a ground-school course on CD-ROM for a Boeing 737 on eBay. The seller contacted him, saying he needed it back after the FBI demanded he recover and surrender it. Omholt is a career pilot qualified to captain the Boeing 737 and an instructor pilot, one of more than 66,000 airline pilots and 650,000 private pilots in the U.S., who are continuously training and rehearsing their flight skills. He received a call from the local U.S. Attorney’s Office asking if he’d received a subpoena about the cd-rom yet. He immediately sent an e-mail about the matter to Soldier For The Truth.org, since he knew he wouldn’t be able tell anyone about it after receiving a FISA order. It arrived the following week. (DefenseWatch.org, 12/18/02) Jason Halperin was having dinner in Manhattan when five New York Police Department officers stormed into the restaurant, guns drawn. They kicked open the kitchen doors, fingers on their triggers, and ordered the staff to crawl on their hands and knees to the back of the restaurant to join the others. Ten more officers arrived, two of whom identified themselves as officers of the INS and DHS. When Mr. Halperin’s companion said they had no right to hold them, the response was, "We have every right. You are being held under the PATRIOT Act following suspicion under an internal Homeland Security investigation." When Halperin asked to speak to a lawyer, the INS official told him he’d have wait for a security clearance at the station, which could take "maybe a day, maybe a week, maybe a month." He found out later that the raid had been a mistake and wrote, "Loaded guns pointed in faces, people made to crawl on their hands and knees, police officers clearly exacerbating a tense situation by kicking in doors, taunting, keeping their fingers on the trigger even after the situation was under control. A mistake. And, according to the ACLU a perfectly legal one, thanks to the PATRIOT Act." (Alternet, 4/29/03) You can support organizations that fight to protect civil liberties and vote for candidates who will protect and defend the Constitution. You can urge the Congressional delegation to oppose any attempts to remove the sunset provisions of the PATRIOT Act and to support Rep. Sanders’ Freedom to Read Protection Act, HR 1157, which seeks to stop intrusion into library and bookstore records. You can also urge the state Legislature to support HJR 22 and SHR 15, which are strong statements of concern about potential abuse of the PATRIOT Act and which urge returning the standard for investigation to "probable cause indicating criminal activity." Most important, though, is to speak out. Alert your friends, your family, and your colleagues to this assault on our freedom. Add your voice to others who are asking that this agenda of snooping, secrecy, and suspicion be abandoned. As Benjamin Franklin warned, "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." Legislation like the USA PATRIOT Act provides the means and the precedent for government to attack the Bill of Rights. The Act can be a weapon by which government can attack other sections of the Bill of Rights. An attack on freedom of speech, freedom of association, and freedom of the press is not so far removed in theory from an attack on the right to bear arms or the freedom of religion. The liberty you choose not to defend because you consider it less important, or because you lead an exemplary life and have nothing to hide, may be the liberty you will miss most when the freedom you do hold dear is on the block. June Pinnell-Stephens works at the Noel Wien Library. Her article does not represent official positions of the Fairbanks North Star Borough. | ||
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