It’s a pleasant Spring day outside of the small, desert town of Bluffdale, Utah. The monotonous desert surroundings makes it hard to gauge distance but I believe I’m approximately a kilometer away from town. I can hear the faint auditory signature of a Pandion haliaetus, or Osprey, some distance away. Its call is a series of sharp whistles, almost like the cheep, cheep, cheep of chicks, only much louder. As I walk further down the black asphalt road I can start to make out miles upon miles of matte gray, wire fencing, protecting what looks like a series of pre-fabricated warehouses and small buildings. Looming beyond the featureless scrubland are the ice-capped Rocky Mountains. Further up the hill, concealed from the highway, I can spot a security boom and a checkpoint with security guards, bomb-sniffing dogs, and surveillance cameras. A yellow road sign says the complex is military property prohibited to unauthorized personnel. My trusty Nikon D7100 is hanging around my neck. If I can get some good shots of this monstrosity maybe I can actually make the rent this month. Before me are two colorful plaques hanging on a low, brick wall that indicate the presence of the Director of National Intelligence and the National Security Agency (NSA). The larger buildings behind the security gate of the NSA’s $1.7 billion Mission Data Repository complex contain room after room of supercomputers that boast a storage capacity of between 3 and 12 exabytes. A friend told me the gargantuan complex’s previous name was the Massive Data Repository, but was renamed because folks found the moniker a little too “creepy”.
Recently, the Obama Administration quietly revised certain privacy measures to allow the National Security Agency to share the private communications it collects with other U.S. intelligence agencies without first applying longstanding privacy protections to them. This data was previously kept within the confines of NSA hallways and only offered to other intelligence agencies like the FBI and CIA after being scrubbed of any identifiable personal information. These new changes are relaxing established restrictions on access to the contents of phone calls and emails the NSA culls globally, including the bulk collection of satellite transmissions, communications between foreign persons as they cross American network switches, and messages acquired overseas or provided by U.S. allies.
The President has the power to change these guidelines without seeking approval from Congress or a judge for permission because the data derives from surveillance techniques lawmakers failed to include in the law that regulates national security wiretapping. This law is known as the Foreign Intelligence Surveillance Act, or FISA. Unbeknownst to the general public, FISA only covers a narrow spectrum of surveillance; the interception of domestic or international communications from a wire on U.S. soil. Therefore, FISA has no jurisdiction over most of what the NSA does in secret.
Three years ago, in June of 2014, Booz Allen Hamilton intelligence contractor Edward Snowden revealed a massive, secret expansion of the NSA’s powers. Covert programs like PRISM, a multilayered, multiagency system that unilaterally mines data and performs comprehensive, in-depth surveillance on live communications and stored information. This data includes email, voice and video chat, photos, voice-over IP chats like Skype, social networking details and file transfers. The Guardian reported that the NSA has access to chats and hotmail.com emails because Microsoft had allegedly developed their software to allow such government intrusion. Also named in PRISM documents were Google, Yahoo, Facebook, PalTalk, YouTube, AOL, and Apple. German newspaper Der Spiegel reported, as a result of Snowden’s leaked documents, that the NSA intercepts electronic packages en route to recipients by using malware and backdoor-enabling hardware and also can hack into offline computers and alter data using radio-frequency devices. Later in December of 2013, Reuters reported the NSA paid RSA, an American computer and network security company, $10 million to create a backdoor in its encryption products like Bsafe. Snowden’s documents revealed that Verizon had been giving the NSA virtually all of its customers’ phone records. Though, shockingly, that was just the tip of the iceberg. It was soon revealed that not only Verizon but essentially every U.S. telephone company was channeling its data to the NSA.
Civil liberties experts point out how such secret agreements between the Executive Branch and U.S. intelligence agencies often get abused because of the very lack of transparency and accountability associated with them. Such advocates are asking the NSA to disclose how much data it collects on Americans incidentally to allow the general public to debate which rules should be in place. Yet, the NSA refuses to disclose this information by claiming it is hard to measure.
Technology often moves faster than our legal system, which has trouble keeping up with itself. Sometimes, criminal laws are purposely left vague, to be defined case by case. Unfortunately, technology often exaggerates the difficulty of interpreting laws so open and vague that they are hard to conform to. Civil-liberties attorney Harvey Silvergate, in the title of his book, Three Felonies A Day, refers to the number of crimes he estimates the average American unwittingly commits daily due to ambiguous laws. New technology has a tendency to contribute to such complexity, making innocent behavior potentially criminal. Also, the sheer number of modern federal crimes have exponentially increased in recent years.
What many Americans find disturbing about this new and secret expansion of government power is that domestic law enforcement now has access to massive amounts of American communications, obtained without warrant, that can be used to place people in concrete cages. The average American perhaps doesn’t realize just how much our government dramatically changed in the aftermath of 9/11. Vast amounts of government wealth were transferred to agencies like the NSA, CIA, and FBI in the name of fighting “terror”. The Obama Administration has exhibited a rabid inclination to prosecute whistle-blowers like Chelsea Manning, who discovered in the course of his military duties just how deep and disturbing and undemocratic this brave, new world was. Manning gave WikiLeaks’ Julian Assange 750,000 classified or unclassified but sensitive military and diplomatic cables. Manning likely knew he could be prosecuted under the Espionage Act, with the potential of facing the death penalty, but was outraged the government had tortured and abused people to break them, forced its alleged enemies into years of indefinite imprisonment, had murdered American citizens and journalists without due process, and, lastly, extraordinary renditioned civilians suspected of wrongdoing to secret prisons within the CIA’s network of foreign“black sites”.
Because of this new, secret agreement, FBI agents currently don’t require any “national security” reason to input your name, email address, phone number, or other “selector” into the NSA’s giant data trove. If your name comes up in an unrelated and routine FBI investigation, agents can delve into your private information and communications. If such agents find something like illegal drug activity, they can now send this info along to local or state police for subsequent prosecution. Because the average person unknowingly commits three felonies a day, as Harvey Silvergate postulates, this hypothetically gives the government incredibly disproportionate power to prosecute virtually anyone they feel challenges the authority of government or the political status quo. Historically, such unconstitutional and asperous laws were aimed at the most vulnerable among Americans – the black, brown, immigrant, poor, Muslim, and dissident.
The balance of power that Thomas Jefferson and James Madison institutionalized within the U.S. Constitution gets eroded away when immense law enforcement agencies like the CIA and NSA are allowed to operate in secret. These very agencies had been pressuring lawmakers for sweeping powers to vacuum-up personal information online. A bill called the Stop Online Privacy Act or S.O.P.A. attempted to do this but was thwarted after vehement protests by companies like Wikipedia. The ACLU’s Michelle Richardson stated, “Before, there were two structures for government spying. One [was] for criminal law and one for foreign intelligence and terrorism-related crimes. What they’re proposing is to create a whole, new Third Column for cybersecurity – a catch-all for all bad actors on the Internet.” One can conclude by the recent prosecution of journalists like Barrett Brown, who was sentenced to 10 years in federal prison for essentially re-posting a link, that the government is in the business of silencing those that challenge it. It’s like the late John Candy’s character, Dean Andrews, says in the Oliver Stone film, JFK, “You’re a mouse fightin’ a gorilla . . . The government’s gonna jump all over your head, Jimbo, and go cock-a-doodle-doo.” In the past, law enforcement was required to actually establish probable cause for an investigation and certainly some evidence before prosecution was possible. If you remember, it took the government’s flatfoot, Eliot Ness, several years of evidence collection before he was able to nab Al Capone – not on murder charges, but on evading his taxes. We all know the saying, “Where there’s a will there’s a way.” That way just got a lot less burdensome for the arbeiters of government might.
We should be concerned about the combination of state and corporate power, which is often exercised using little known information technology. This is the very thing President Eisenhower warned about in his famous Military-Industrial Complex speech. President John F. Kennedy also spoke very eloquently about the turbid relationship between government secrecy and tyranny. Here is a small excerpt:
We are opposed around the world by a monolithic and ruthless conspiracy that relies primarily on covert means to expand its sphere of influence . It is a system which has conscripted vast human & material resources into the building of a tightly-knit, efficient machine that combines military, diplomatic, intelligence, economic, scientific & political operations. Its preparations are concealed, not published. Its mistakes are buried, not headlined. Its dissenters are silenced, not praised.
There really isn’t a social class or profession that is shielded from this variation of social control by the executive branch. Not only is President Obama’s secret agreement unconstitutional but it undermines the progress the USA FREEDOM Act ratified into law. Nothing less than the rectitude of our constitutional democracy hangs in the balance.
It’s now dusk outside of the NSA’s Mission Data Repository complex. Looking towards the horizon, I can see the diffused, orange glow of the Sun sinking behind the mountains to the west. The Osprey is long gone, likely nesting somewhere safe. The constant, dull hum of the complex’s power lines drone in my ears. My camera’s memory is full, I’m thinking I should get back to the hotel before one of those beefed-up guards at the security station notices me and my Nikon. Glancing at the generic, beige walls of the buildings, my mind travels to visualizing all of the ones and zeroes, the multitude of Facebook conversations, emails from husbands to wives, messages of congratulation or despair, categorized and compartmentalized by automated, digital software and stored in massive computer rooms. All of that binary code just sitting there like a tobacco crop in July, waiting for some ambitious government employee to come along and harvest it.