“The question is not whether we will have a surveillance state in the years to come, but what sort of surveillance state we will have.” – Jack Balkin
Immediately following the original Snowden revelations in June 2013, I wrote a research paper inquiring into the nature of the U.S. national surveillance state with respect to the natural law treatment of human civil liberties. That paper comprises Part 1 of this research blog. At that time the research findings strongly suggested the U.S. national surveillance state was deep into authoritarian territory by using a framework provided by Yale Law School’s Jack Balkin in his work, “The Constitution in The National Surveillance State”. Famed Nobel Prize winning economist and political commentator, Paul Krugman, in his response to the Snowden revelations, also used Balkin’s framework and came to the same conclusion but has said very little about this topic since. Although, this week Krugman did say that surveillance isn’t that big of a deal.
Over the last two years many national security and surveillance revelations have been published from the Snowden archive. In addition, the nature of US government policies and practices, national security or otherwise, under the Obama administration have further clarified and worthy of examination. The objective of this research post is to revisit the original research question with the focus on the threshold component of whether the U.S. can still be characterized as an authoritarian national surveillance state. In the interest of context and concision, I will briefly touch on the following questions in this post that have already been addressed in more expansive individual posts in Part 1 that explain Jack Balkin’s framework:
What is a national surveillance state?
In the National Surveillance state, the government uses surveillance, data collection, collation, and analysis to identify problems, to head off potential threats, to govern populations, and to deliver valuable social services.(1) The National Surveillance State is a special case of the Information State – a state that tries to identify and solve problems of governance through the collection, collation, analysis, and production of information.(2) The war on terror may be the most familiar justification of the rise of the national surveillance state, but it is hardly the sole or even the most important cause. (3) Government’s increasing use of surveillance and data mining is a predictable result of accelerating developments in information technology.(4) As technologies that let us discover and analyze what is happening in the world become ever more powerful, both governments and private parties will seek to use them.(5)
Foreign Intelligence Surveillance Act (FISA)
The Foreign Intelligence Surveillance Act (FISA) is a United States law that prescribes procedures for the physical and electronic surveillance and collection of “foreign intelligence information” between “foreign powers” and “agents of foreign powers”.(6) Under “agents of foreign powers” this may include U.S. citizens and permanent residents suspected of espionage or terrorism.(7) This law does not apply outside the U.S. and has been amended many times since the events of 9/11.(8) FISA administration includes its own judicial system and meaningful congressional oversight.(9)
National Security Letters (NSL)
A National Security Letter (NSL) is a demand letter, which differs from a subpoena.(10) It is used by U.S. Government agencies, mainly the Federal Bureau of Investigation (FBI), when investigating matters of national security.(11) It is issued to a particular entity or organization to turn over records and data pertaining to individuals.(12) By law, these letters can request only non-content information, such as transactional records, phone numbers dialed or sender or recipient email addresses.(13) They also include a gag order, preventing the recipient of the letter from disclosing that the letter was ever issued.(14)
What Are The Three Main Threats National Surveillance Poses To Our Freedoms?
The National Surveillance State poses three major dangers for our freedoms.(15) Because the National Surveillance State emphasizes ex ante prevention rather than ex post apprehension and prosecution, the first danger is that government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights.(16)
The second danger posed by the National Surveillance State is that traditional law enforcement and social services will increasingly resemble the parallel track.(17) Once governments have access to powerful surveillance and data mining technologies, there will be enormous political pressure to use them in everyday law enforcement and for delivery of government services.(18) If data mining can help us locate terrorists, why not use it to find deadbeat dads or even people who have not paid their parking tickets?(19) If surveillance technologies signal that certain people are likely threats to public order, why not create a system of preventative detention outside the ordinary criminal justice system?(20) Why not impose sanctions outside the criminal law, like denying people the right to board airplanes or use public facilities and transportation systems?(21) And if DNA analysis can identify people who will likely impose high costs on public resources, why not identify them in advance and exclude them from public programs and other opportunities?(22) The more powerful and effective our technologies of surveillance and analysis become, the more pressure the government will feel to route around warrant requirements and other procedural hurdles so that it can catch potential troublemakers more effectively and efficiently before they have a chance to cause any harm.(23)
The third major threat to our freedoms according to Balkin is private power and the public- private cooperation.(24) Because the Constitution does not reach private parties, the U.S. government has increasing incentives to rely on private enterprise to collect and generate information for it.(25) Corporate business models, in turn, lead companies to amass and analyze more and more information about people in order to target new customers and reject undesirable ones.(26) As computing power increases and storage costs decline, companies will seek to know more and more about their customers and sell this valuable information to other companies and to the government.(27)
Since the National Surveillance State is a form of the Information State, let’s now look at the definitions Jack Balkin provides for Democratic vs. Authoritarian Information states. Then I will reexamine the status of the US. National Surveillance State to determine to what degree it can or cannot be considered authoritarian.
What is an Authoritarian Information State?
Authoritarian information states are information gluttons and information misers.(28) Like gluttons they grab as much information as possible because this helps maximize their power.(29) Authoritarian states are information misers because they try to keep the information they collect – and their own operations secret from the public.(30) They try to treat everything that might embarrass them or undermine their authority as state secrets, and they multiply secret rules and regulations, which lets them claim to obey the law without having to account for what they do.(31) In this way they avoid accountability for violating people’s rights and for their own policy failures.(32) Thus, information gluttony and information miserliness are two sides of the same coin: both secure governments’ power by using information to control their populations, to prevent inquiry into their own operations, to limit avenues of political accountability, and to facilitate self serving propaganda.(33)
What is a Democratic Information State?
Democratic information states are information gourmets and information philanthropists.(34) Like gourmets they collect and collate only the information they need to ensure efficient government and national security.(35) They do not keep tabs on citizens without justifiable reasons; they create a regular system of checks and procedures to avoid abuse.(36) They stop collecting information when it is no longer needed and they discard information at regular intervals to protect privacy.(37) When it is impossible or impractical to destroy information – for example, because it is stored redundantly in many different locations – democratic information states strictly regulate its subsequent use.(38) If the information state is unable to forget, it is imperative that it be able to forgive.(39)
Democratic information states are also information philanthropists because they willingly distribute much valuable information they create to the public, in the form of education, scientific research, and agricultural and medical information.(40) They allow the public access to information about their laws and their decision-making processes so that the public can hold government officials accountable if they act illegally or arbitrarily or are corrupt or inefficient.(41) They avoid secret laws and secret proceedings except where absolutely necessary.(42) Democratic states recognize that access and disclosure help prevent individual privacy because surveillance encourages abuses of power and inhibits freedom and democratic participation.(43) Thus being an information gourmet and an information philanthropist are also connected: both help keep governments open and responsible to citizens; both further individual autonomy and democracy by respecting privacy and promoting access to knowledge.(44)
Lets now examine the status of the U.S. National Surveillance state through the lens of Jack Balkin’s framework with the benefit of having many more articles and hundreds of source documents from the Snowden archive to examine. Moreover, we also have court decisions and policy positions to color the discussion.
What is the status of the U.S. National Surveillance State?
The concept of a Democratic National Surveillance State brings to mind a number of oxymoronic statements.(45) For example: A cuddly porcupine, clear as mud, definitely maybe, etc. Perhaps we would all be better off just dismantling the surveillance state entirely and throw it in the waste bin.(46) In addition, we would also be required to remove all the laws associated with the surveillance state.(47) It is pleasant to dream of those visions of the future, however the reality is that will never be more than a dream, thus we find national security states operating on a spectrum somewhere in between Democratic and Authoritarian.
“Democracy is a device that ensures we shall be governed no better than we deserve.”
On June 6th, 2013 top-secret NSA documents depicting an expansive and powerful surveillance program that included the help and legally required collaboration of U.S. telecommunications and technology companies were publicly leaked.(47) The program exposed, “Prism”, while by itself may not be very surprising to many people because it seems to be a common belief that government should have reasonable ability to look into records for security purposes when it has probable cause.(48) In essence, an operational program like “Prism” in of itself is about as expansive as one can get.
The “Prism” program, according to the leaked document seen above, included name brand technology companies such as Microsoft, Yahoo, Google, Facebook, PalTalk, Youtube, Skype, AOL, and Apple. The U.S. Department of Justice utilized current legal instruments in the form of FISA Warrants and National Security letters to compel and extract this information. Without going into too much detail essentially these instruments enabled the government to secretly request information of which the receiver of the request could not publicly disclose nor could they deny.(49) It was also done through a court system set up by the government that nobody but the government could present a case, and this is still true today.(50) The U.S. Government also used these same legal instruments and systems to request comprehensive and ongoing meta-data phone records on all Verizon customers.(51) The metadata bulk collection programs are approved under Section 215 of the U.S Patriot act, which is set to expire on June 1, 2015 unless it is re-approved by Congress. Given the lack of public discourse or debate about the renewal of this section of the Patriot act, it will likely be re-approved to very little fanfare.
Metadata in laymen terms is simply the transactional data that is captured through the process of making a call etc. It is not the contents of the call. Metadata in of its self is somewhat harmless, however when analyzed with other identification databases could illuminate a wealth of intelligence about the lives of people.(52) Although only the Verizon FISA warrants and the national security letters were leaked, it is reasonable to assume given the scope of the “Prism” program that almost every U.S. telecommunications provider has been served with one.(53)
Supporters of metadata bulk collection often tout that it is not the content of calls. While that may be true for that specific program, the NSA does have other programs that can accomplish that goal.
One program specifically called “Mystic” is an NSA program capable of recording 100 percent of a foreign country’s telephone calls, enabling the agency to rewind and review conversations as long as a month after they take place.(54) The Mystic program is effectively a Time Machine program for voice conversations.
Another program exposed by the Snowden archive is XKeyscore.(55) This program gives the widest reaching collection of online data to the NSA.(56) NSA analysts require no prior authorization to engage in searches and this program sweeps up emails, social media activity, and browsing history.(57) The stated mission of the NSA in its own documents is to “Collect it all”.
There are billions of smartphones globally. The majority of them have a SIM card. SIM chip technology was originally designed to ensure secure billing by carriers but have since evolved to include their own encryption methods for communications. GAMALTO is one of the world’s leading manufactures of SIM chip technologies and it was exposed that US and British intelligence agencies hacked the company and stole the encryption keys to their SIM chip technology. With these stolen encryption keys, intelligence agencies can monitor mobile communications without seeking or receiving approval from telecom companies and foreign governments.(58) Possessing the keys also sidesteps the need to get a legal warrant or a wiretap, while leaving no trace on the wireless provider’s network that the communications were intercepted.(59) Bulk key theft additionally enables the intelligence agencies to unlock any previously encrypted communications they had already intercepted, but did not yet have the ability to decrypt.(60)
Another NSA program called “Muscular” focuses on the links between data centers operated by US technology companies.(61) The majority of our information is on the private servers of large multi-national corporations.(62) Those companies have data centers all over the world for a whole host of redundancy and risk mitigation purposes for business continuity.(63) Sometimes these corporations move data from one data center to another, which sometimes travels across U.S. borders.(64) Since the NSA is focused on foreign intelligence gathering operations and view anything outside the U.S. as fair game to collection, the NSA has developed a program to infiltrate the links between these data centers to collect all that raw data intake even if it clearly includes information on U.S. citizens.(65)
As more of these surveillance and data collection programs became public a natural question became how were these programs legally justified. The New York Times published an article from the Snowden archive explaining how the secret FISA court evolved overtime from an adjudicator of the surveillance practices to an interpreter of the underlying laws that support them.(66) Thus creating a duel set of laws under our Constitution where one set of interpretations is public while the others are top secret for national security purposes.(67) The NYT article gives significant weight to my researching findings in Part 1 that the only method for interpreting the Constitutions 4th amendment, that would reasonably allow for these types of data collection/surveillance programs to be approved, is the “Dynamic Incorporation” method. This is the only method of interpretation that allows for the tension between the notions of “search” and “seizure” to be fully released, thus giving courts and government attorneys the ability to justify whatever they want.
During the same period these programs were disclosed, it was also leaked that the current U.S. administration was tapping phone lines and capturing emails of members of the associated press.(68) It was doing this under the suspicion the reporters being placed under surveillance were corroborating with governmental insiders to leak classified national security information.(69) The reason this is significant is because there are processes the Department of Justice is required to follow when potentially investigating members of the press.(70) These procedures are in place to protect the notion of freedom of speech and the press in the United States.(71) The implication of the leaked information disclosing the U.S. government’s secret collection of phone calls and emails of specific press personnel has allegedly had a significant dampening effect on members of the Associated Press from being able to privately confirm information with government officials.(72)
Jill Abramson was the most recent Executive Editor of the New York Times and in January 2014 said the Obama administration is the most secretive administration she has ever covered in her long career in journalism.(73) The effect of this dampening effect would be that whatever the government is saying publicly by proxy becomes truth because there is no check on the validity of the information due to fear of retribution to participating government insiders.
The reasoning behind these investigations is the manifestation of a multitude of “whistle blowing” national security and intelligence leaks occurring under the Obama administration.(74) More than under any previous administration combined. The Obama administration under the guise of national security is doing everything it can to keep insiders and the press from disclosing damaging and perhaps illegal actions taken by our government.(75) Moreover, the Obama Administration in 2014 set a new record for non-compliance to Freedom of Information Requests.(76) It has never taken longer for the government to process requests, it has denied more requests in 2014 than any previous year, and has redacted more in the documents it does eventually release.(77)
Lastly, since the 9/11 terrorist attacks, the Federal Bureau of Investigation (FBI) has arrested dozens of young men in controversial counterterrorism stings.(78) A few recent cases that involved a rudderless 20-year old in Cincinnati, Ohio, named Christopher Cornell, who conspired with an FBI informant – seeking “favorable treatment” for his own “criminal exposure” – in a harebrained plot to build pipe bombs and attack Capital Hill.(79) And just last month, on February 25th, the FBI arrested and charged two Brooklyn men for plotting, with the aid of a paid informant, to travel to Syria and join the Islamic State.(80) The likelihood that the men would have stepped foot in Syria of their own accord seems low; only after they met the informant, who helped with travel applications and other hurdles, did their planning take shape.(81)
Informant-led sting operations are central to the FBI’s Counterterrorism program.(82) Of 508 defendants prosecuted in federal terrorism-related cases in the decade after 9/11, 243 were involved with an FBI informant, while 158 were the targets of sting operations.(83) Of those cases, an informant or FBI undercover operative led 49 defendants in their terrorism plots.(84)
In these cases, the FBI says paid informants and undercover agents are foiling attacks before they occur.(85) But the evidence suggests – and a recent Human Rights Watch report on the subject illustrates – that the FBI isn’t always nabbing would-be terrorists so much as setting up mentally ill or economically desperate people who commit crimes they could never have accomplished on their own.(86)
A documentary movie is being released today April 16th, 2015th at the Tribeca Film Festival that depicts how one FBI informant mounted his own sting operation against the FBI.(87) (T)error follows a man who is one of 15,000 domestic spies who make up the largest surveillance network ever created in the United States.(88) During J. Edgar Hoover COINTELPRO operations, the bureau had just 1,500 informants.(89) The drug war brought that number up to about 6,000.(90) After 9/11, the bureau recruited so many new informants – many of them crooks or convicts, desperate for money or leniency on previous crimes – which the government had to develop software to help agents track their spies.(91)
To quickly summarize, its has been confirmed the current U.S. administration has been doing the following:
- Exercising the use of a secret subset rule of law under the guise of National Security to fight terrorism, while also saying the war on terror is subsiding.
- Investigating the Associated Press to suppress leaks through new and broad interpretations of the law.
- Collecting data of all types against all foreign people and U.S. domestic citizens.
- Utilizing a large domestic pool of spies (many are private companies or citizens)
There is a probable fifth notable action the current U.S administration is taking. That action is using government agencies to suppress and intimidate political enemies, such as the IRS targeting conservative groups for audits and tax-exempt status, while scrutinizing liberal leaning groups much less if at all for the same issues. While the investigation into this Fifth action is still ongoing, in the context of the other validated and corroborated dubious actions it is hard to imagine that senior White House staff, or even the President himself, if not directly order these actions, simply did nothing to stop them, most likely by “accident”. The irony being that nothing happens by accident in politics.
In July 2014 over half of all Inspector Generals in charge of governmental oversight signed a letter and sent it to the Senate Oversight committee.(92) The main thrust of the letter was to inform the Senate Oversight Committee that a meaningful amount of critical government agencies are withholding information from oversight inspectors.(93) Government agencies are claiming “privileged information” status from oversight based on a new interpretation of the administrative laws.(94) Columbia Law School Professor, Philip Hamburger, recently published a book titled “Is Administrative Law Unlawful?”
There are many complaints about administrative law—including that it is arbitrary, that it is a burden on the economy, and that it is an intrusion on freedom according to Mr. Hamburger.(95) The question Mr. Hamburger addresses is whether administrative law is unlawful, and focuses on constitutional history.(96) Those who forget history, it is often said, are doomed to repeat it.(97) And this is what has happened in the United States with the rise of administrative law—or, more accurately, administrative power.(98)
Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity.(99) From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution could not have barred it.(100) What Hamburger suggests, in contrast, is that administrative power is actually very old.(101) It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.(102) So is the U.S. still an authoritarian National Surveillance state with respect to the natural law treatment of human civil liberties?
While each one of the actions by the U.S. government discussed above on an individual basis would probably not constitute a strong argument the U.S. Government is far into Authoritarian Surveillance State territory. But all of the corroborated actions together create an overly compelling case for that argument to still ring true today. In fact, it seems Totalitarianism in the U.S. is seeking to cement itself firmly in place and our government officials from all three branches seem perfectly Ok with that. Noam Chomsky would probably say this is the perfect storm for the current U.S. administration and future administrations to meaningfully “manufacture the consent” of domestic and foreign people.(103) Authoritarian regimes and their proxies utilize propaganda to support their policies and interests. The U.S. is no different. On April 13th, 2015 the prestigious Council on Foreign Relations published an article titled: “The Good News About Spying”. This CFR article would lend one to believe the Obama administration is the most ardent defender and protector of civil liberties, that is of course if someone were gullible enough to believe it.
All authoritarian regimes utilize information to try and stifle those people and organizations that seek to speak truth to power. In the U.S. we have the First Amendment, which guarantees freedom of speech and freedom of the press. With the U.S. already being an authoritarian national surveillance state that has two sets of laws, a law enforcement and administrative state that supports the parallel track of laws, and utilizes private/public cooperation to engage in these activities; how would the U.S. government look to use administrative law to place limitations on speech through the utilization of information technology? That is the topic of my next research post.