The FBI’s annual report on its use of spying powers released late last month reveals a meteoric 900% rise in the use of Section 215 of the PATRIOT Act under the Obama Administration (see graphic). This provision, reauthorized in 2011, allows the FBI to force unwilling businesses to hand over “any tangible things” simply upon showing the closed-door Foreign Intelligence Surveillance Courts (FISA court) that they are “relevant” to an “authorized investigation” into “international terrorism or clandestine intelligence activities.” In a break with foundational Fourth Amendment principles, the person whose “tangible things” are sought need not be suspected of any criminal activity themselves. The FBI merely must show the FISA court that those “things” sought are “relevant” to an investigation into international terrorism.

So just how broad is this power?

A few courageous senators in the know have hinted that Americans would be “stunned” by the scope of the spy powers claimed under Section 215; the only problem is the government has kept this interpretation secret. Not only does this lack of transparency prevent public discourse on what the limits of the government’s powers should be, it also drips with irony under a president that denounced such broad powers as a “fishing expedition” while in the Senate.

There seem to be two candidates under which the Obama administration could argue for expansive powers under Section 215. A broader definition of either “relevant” or of “tangible things” would balloon the government’s surveillance powers claimed under this law. The former would allow searches and seizures for information more and more tenuously related to international terrorism while the latter potentially could expand covered “things” to include email, Internet browsing history, and cell phone records (none of which were included explicitly in the statute).

In 2011, the American Civil Liberties Union sued to obtain the government’s secret interpretation of Section 215. In the ensuing two years of legal battles over this issue, even more troubling information has come to light that suggests the government indiscriminately intercepts all of our emails, bypassing the very judicial oversight supposedly set up to protect our privacy. Whether this is made possible by compliant telecom companies that were retroactively immunized for their abuses and now given secret authorization for breaking wiretapping laws or by covert spying unknown to the telecoms doesn’t matter; neither of these sources of surveillance would show up in the FBI’s annual report. Consent searches would obviate the need for a court order while working outside the law conveniently avoids the reporting requirement.

Further clouding true transparency, the FBI does not have to reveal how many people’s information was searched or seized under a Section 215 order. Could this be another source of the “stunning” breadth of power? Could each of the 212 applications sought by the FBI in essence be asking companies for all of their tangible records rather than representing an application to focus on any one person?

Four things would aid the public in determining how much actual (versus reported) surveillance is conducted:

• Meaningful transparency from “the most transparent administration in history”
• More fearless whistleblowers stepping forward to shed the light on this issue that our executive and judiciary have refused to
• More than decorative judicial oversight scrutinizing claims that the secret interpretations of Section 215 should be kept from public view (granted, this would not address extrajudicial surveillance)
• An end to secret interpretations of laws in general (also would not address extrajudicial surveillance)

So far, none of these things has happened. Sadly, maybe that’s the point.

5/16, Josh Peterson, The Daily Caller, DOJ sought to surveil several thousand U.S. citizens in 2012

5/16, Alina Selyukh and Deborah Charles, NBC News, CISPA cybersecurity bill backers hope second time’s a charm

5/16, Charlie Savage, New York Times, Debating the Legal Basis for the War on Terror

5/16, Somini Sengupta, New York Times, Concerns Arise on U.S. Effort to Allow Internet ‘Wiretaps’

5/16, Brad Knickerbocker, Christian Science Monitor, US loses track of terrorists in witness protection: Poor data sharing blamed

5/15, Matthew Alexander, MSNBC, New WikiLeaks film discusses government secrecy

Obama said he made “no apologies” for being concerned about national security but that the free flow of information was important to him as well.

What exactly is this “free flow” of information? According to The Guardian blogger Glenn Greenwald:

If you talk to any real investigative journalist, they will tell you that an unprecedented climate of fear has emerged in which their sources are petrified to talk to them. That the Obama administration has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined has already severely chilled the news gathering process. Imagine what message this latest behavior sends to journalists and their sources: that at any moment, the phone records of even the nation’s most establishment journalists can be secretly obtained by the DOJ, which has no compunction about doing so even in the most extreme and invasive manner.

This mind set is obviously not very conducive to a “free flow” of information. So apparently, President Obama’s “free flow” of information is only pertaining to that information which benefits his administration:

The Obama administration does not mind leaks of classified national security information; to the contrary, they love such leaks and are the most prolific exploiters of them. What they dislike are leaks that they don’t approve and/or which don’t glorify the president.

Interestingly,  the media is suddenly up in arms about this abuse by the Obama administration. This passage from the Washington Post had Greenwald laughing audibly:

President Obama, a former constitutional law lecturer who came to office pledging renewed respect for civil liberties, is today running an administration at odds with his résumé and preelection promises.

The Justice Department’s collection of journalists’ phone records and the Internal Revenue Service’s targeting of conservative groups have challenged Obama’s credibility as a champion of civil liberties – and as a president who would heal the country from damage done by his predecessor.

Greenwald’s response?

You don’t say! The Washington Post’s breaking news here is only about four years late. Back in mid-2010, ACLU executive director Anthony Romero, speaking about Obama’s civil liberties record at a progressive conference, put it this way: “I’m disgusted with this
president.” In the spirit of optimism, one can adopt a “better-late-than-never” outlook regarding this newfound media awakening.

The news media should take a several steps back from its cozy relationship inside the Beltway and return to its adversarial position as a watchdog of government. We, the people, need the media on our side, not the side of the politically elite.

Important criticism of the Justice Department’s suppression of press freedom remains inadequate.

Finally finding its voice after five years of relative silence, the mainstream establishment press finally woke up this week to criticize the Obama administration’s assault on the First Amendment. But, while this criticism is important and necessary, it remains days (indeed, years) late, and much more than merely a dollar short.

Is this America or China?

The Justice Department’s seizure of Associated Press telephone calls without prior notice, in violation of fundamental First Amendment principles, and extending the Obama administration’s already hypocritical and authoritarian crackdown on government whistleblowers, is indeed a travesty worthy of this week’s onslaught from the press, Congress, and the public. Reaching even beyond the office phone lines of reporters and editors to also invade the privacy of their home and cellular calls, the Justice Department’s tactics seem more fitting in China than the United States.

Noting that “[b]y obtaining these records, the DOJ has struck a terrible blow against…freedom of the press and the ability of reporters to investigate and report the news,” the Electronic Frontier Foundation also noted the broader need to “require more than a mere subpoena…whether the target is the news media or an ordinary citizen.” Few others, however, beyond Glenn Greenwald, have recognized that the assault on press freedom is merely an extension of a longstanding policy shared by presidents from both of the major political parties.

To its credit, the Washington Post expanded the context of its reporting, writing this week that:

President Obama, a former constitutional law lecturer who came to office pledging renewed respect for civil liberties, is today running an administration at odds with his résumé and preelection promises.

The Justice Department’s collection of journalists’ phone records and the Internal Revenue Service’s targeting of conservative groups have challenged Obama’s credibility as a champion of civil liberties – and as a president who would heal the country from damage done by his predecessor.

While the Post‘s pointed criticism is perfectly appropriate, Glenn Greenwald correctly noted that “[it's] breaking news here is only about four years late.” Shortly before Obama’s second inauguration last year, reflecting on Obama’s first term and  the constitutional damage wrought by the Bush administration, George Washington University law professor Jonathan Turley detailed “10 reasons the U.S. is no longer the land of the free.”

A reporter shield law, but what about whistleblowers?

Reflecting a profound irony, the furor erupting over the investigation may also propel legislation, proposed by the very same White House, to shield reporters from inappropriate investigations by government officials.  It is convenient — perhaps even crass — for the administration to propose this bill after violating its principles at every opportunity for years, but craven opportunism is nothing new to Washington. So much for “change we can believe in….”

My colleagues have been writing about the need for a reporter shield law for nearly a decade, reflecting the recurring threats to press freedom under both the Bush and Obama administrations. In 2005, New York Times journalists were threatened with prosecution for revealing the National Security Agency’s massive (and unconstitutional, and illegal) domestic spying efforts to the public.

Indeed, when press outlets mouth administration talking points as news, gather news from conflict zones only when embedded in military units enabling outright censorship, fail to critically examine repeated attacks of the fundamental rights of Americans, and even defer to government officials pleading for embarrassing news to remain secret, it may be appropriate to describe media in the US as controlled by the state, rather than free.

It seems to have taken the crackdown to reach the Associated Press for the rest of the news industry to finally recognize that the Obama administration has taken government secrecy to unprecedented levels exceeding even that of the Nixon administration, according to the former general counsel of the New York Times who helped lead the struggle to reveal the Pentagon Papers to the public nearly 40 years ago.

But what about the government whistleblowers who risk their careers to reveal important secrets to the public? As news outlets have finally begun reporting widely, the Obama administration has prosecuted twice as many national security whistleblowers in the past five years than in the entire preceding 225 year history of the country.

Reporters need robust protections, but so do whistleblowers. While the president signed important protections into law last year, conspicuous omissions for national security leave public servants like Bradley Manning at risk of authoritarian prosecution for simply doing their jobs and complying with international laws our nation was once proud to have established after WWII.

The reporter shield law must be broadened to also grant effective protections to government employees with information the public should know.

Attention to the press, but what about the rest of us?

Lost amidst the sudden (yet long overdue) controversy has been any awareness of the Justice Department’s many, much worse, and longer standing assaults on the First Amendment.

The press may be a recent victim of unconstitutional government scrutiny, but it is far from the first. And the emphasis on only the most recent examples obscures how badly the rule of law has eroded in America over the past decade.

Greenwald explains that:

For years, the Obama administration has been engaged in pervasive spying on American Muslim communities and dissident groups. It demanded a reform-free renewal of the Patriot Act and the Fisa Amendments Act of 2008, both of which codify immense powers of warrantless eavesdropping, including ones that can be used against journalists. It has prosecuted double the number of whistleblowers under espionage statutes as all previous administrations combined….

But, with a few noble exceptions, most major media outlets said little about any of this, except in those cases when they supported it. It took a direct and blatant attack on them for them to really get worked up, denounce these assaults, and acknowledge this administration’s true character.

If anything, Glenn understates the case.

The invasion of faith institutions by FBI agents and paid provocateurs around the country represents the erosion of the right of free exercise of religion once protected by the First Amendment.

Other First Amendment rights, such as the rights to assemble, speak, and petition our government for redress of grievances, have also been reduced to mere words on paper. Labor organizers and peace activists in multiple cities have been raided by the FBI and still face a grand jury investigation spearheaded by a US attorney named among possible candidates to be the next FBI Director, in J. Edgar Hoover’s mold.

Recent news about the IRS discriminatorily scrutinizing conservative groups reflects suppression of the Tea Party movement and grassroots conservatives. [Note: the Bill of Rights Defense Committee, which publishes this blog, was audited by the IRS in year 2010.] At least the FBI is criminally investigating the IRS.

In sharp contrast, the violent state suppression of the peaceful Occupy movement happened over a year ago, yet was rarely described in those terms despite a coordinated (and documented) campaign across the federal and local governments to suppress speech and assembly. Unlike the more civil suppression of Tea Party groups, there has been no accountability for the numerous agencies, including the FBI (now tasked to reign in the IRS after having bowed to the CIA on torture), responsible for those abuses.

What next?

This week’s scandals should impel the press to grow more independent, and Congress to grow more assertive, both through oversight and legislation to protect journalists and national security whistleblowers.

If past is prologue, however, Washington will settle for a meager reform paying lipservice to the principles at stake, while continuing its assault on dissidents, labor organizers, peace activists, Muslims, and the First Amendment writ large.

This is no time to observe these events in passive silence. BORDC organizers are standing by to help coach and support grassroots activists looking for ways to get involved. If not you, who? If not now, when?

While allegedly created to target undocumented individuals, E-Verify would negatively affect documented U.S. citizens as well.  Every job applicant would have to face an E-Verify background check, and unless the system is 100% accurate 100% of the time, these background checks will become a nightmare.  Chris Calabrese, Senior Legislative Counsel with the American Civil Liberties Union explains:

 When you make a giant list of everybody who’s able to work in the United States, that list has to be completely accurate, because if there are mistakes in it, the result is those mistakes – those mistaken people can’t work.

These citizens will be required to petition the government to correct the mistake, creating a bureaucratic nightmare that will likely stall their job hunting process by weeks (if not longer).  Calabrese calls this the “prove yourself to work” system that will hurt ordinary citizens.  This signifies a fundamental shift in relationship between government and populace – no longer are we innocent until proven guilty. We are now guilty until proven worthy of a job.  Gone will be the days of applying for a job, waiting on a quick background check, and becoming employed – now all citizens will have to wait for I-9s to be verified against a massive list of personal information housed by the government.

Beyond undue obstacles to employment lies an even more frightening truth about E-Verify: the invasion of privacy.  Shahid Buttar wrote in a previous article that Comprehensive Immigration Reform would likely become a Trojan Horse for larger government surveillance, and E-Verify is just one manifestation of that government surveillance.  Involving the government in something as routine as application for employment unnecessarily involves political bureaucracy in one’s personal life.  More disconcerting, though, is the fact that so much personal information would be available from a single database – a dream for identity thieves.

E-Verify is but one example of how the new programs proposed in Comprehensive Immigration Reform would affect all U.S. citizens, not merely a small percentage of undocumented individuals.  Like Next Generation Initiative (NGI), which would track individuals from city to city, scan not just fingerprints but irises and scars to help track and identify individuals, E-Verify signifies a broadening state of surveillance.  In an article about NGI’s expansion of biometric databases, Alternet wrote, “Advancements in the collection of biometric data are double-edged: there’s the treat of a massive government surveillance infrastructure working too well – e.g., surveillance state – and there are concerns about its weaknesses, especially in keeping data secure.”  The same can be said for E-Verify; it would likely be the gateway to a growing surveillance state, and the information stored within E-Verify would be susceptible to hacking.   While this country is in dire need of Comprehensive Immigration Reform, we must be wary of “enforcement-first” immigration policies like NGI and E-Verify, which will only infringe on the rights of American citizens.

“If you’re not a terrorist, if you’re not a threat, prove it. This is the price you pay to live in free society right now. It’s just the way it is.”—Sergeant Ed Mullins of the New York Police Department

Immediately following the devastating 9/11 attacks, which destroyed the illusion of invulnerability which had defined American society since the end of the Cold War, many Americans willingly ceded their rights and liberties to government officials who promised them that the feeling of absolute safety could be restored.

In the 12 years since, we have been subjected to a series of deceptions, subterfuges and scare tactics by the government, all largely aimed at amassing more power for the federal agencies and extending their control over the populace. Starting with the wars in Afghanistan and Iraq, continuing with the torture of detainees at Abu Ghraib and Guantanamo Bay, and coming to a head with the assassination of American citizens abroad, the importing of drones and other weapons of compliance, and the rise in domestic surveillance, we have witnessed the onslaught of a full-blown crisis in government.

Still Americans have gone along with these assaults on their freedoms unquestioningly.

Even with our freedoms in shambles, our country in debt, our so-called “justice” system weighted in favor of corporations and the police state, our government officials dancing to the tune of corporate oligarchs, and a growing intolerance on the part of the government for anyone who challenges the status quo, Americans have yet to say “enough is enough.”

Now, in the wake of the Boston Marathon bombing, we are once again being assured that if we only give up a few more liberties and what little remains of our privacy, we will achieve that elusive sense of security we’ve yet to attain. This is the same song and dance that comes after every tragedy, and it’s that same song and dance which has left us buying into the illusion that we are a free, safe society.

The reality of life in America tells a different tale, however. For example, in a May 2013 interview with CNN, former FBI counterterrorism agent Tim Clemente disclosed that the federal government is keeping track of all digital communications that occur within the United States, whether or not those communicating are American citizens, and whether or not they have a warrant to do so.

As revelatory as the disclosure was, it caused barely a ripple of dismay among Americans, easily distracted by the torrent of what passes for entertainment news today. Yet it confirms what has become increasingly apparent in the years after 9/11: the federal government is literally tracking any and all communications occurring within the United States, without concern for the legal limitations of such activity, and without informing the American people that they are doing so.

Clemente dropped his bombshell during a CNN interview about authorities’ attempts to determine the nature of communications between deceased Boston bombing suspect Tamerlan Tsarnaev and his widow Katherine Russell. In the course of that conversation, Clemente revealed that federal officials will not only be able to access any voicemails that may have been left by either party, but that the entirety of the phone conversations they had will be at federal agents’ finger tips.

“We certainly have ways in national security investigations to find out exactly what was said in that conversation,” stated Clemente. “All of that stuff [meaning phone conversations occurring in America] is being captured as we speak whether we know it or like it or not.” A few days later, Clemente was asked to clarify his comments, at which point he said, “There is a way to look at all digital communications in the past. No digital communication is secure.”

In other words, there is no form of digital communication that the government cannot and does not monitor—phone calls, emails, text messages, tweets, Facebook posts, internet video chats, etc., are all accessible, trackable and downloadable by federal agents.

At one time, such actions by the government would not only have been viewed as unacceptable, they would also have been considered illegal. However, government officials have been engaged in an ongoing attempt to legitimize these actions by passing laws that make the lives of all Americans an open book for government agents. For example, while the nation was caught up in the drama of the Boston bombing and the ensuing military-style occupation of the city by local and federal police, Congress passed a little-noticed piece of legislation known as the Cyber Intelligence Sharing and Protection Act (CISPA). The legislation, which the House of Representatives approved by an overwhelming margin of 288-127, will allow internet companies to share their users’ private data with the federal government and other private companies in order to combat so-called “cyber threats.”

In short, the law dismantles any notion of privacy on the internet, opening every action one undertakes online, whether emailing, shopping, banking, or just browsing, to scrutiny by government agents. While CISPA has yet to clear the U.S. Senate Committee on Commerce, Science, and Transportation, the spirit of it is alive and well. In fact, officials in the Obama administration have for some time now been authorizing corporate information sharing and spying in secret through the use of executive orders and other tactics.

The Justice Department, for instance, has been issuing so-called “2511 letters” to various internet service providers like AT&T, which immunize them from being prosecuted under federal wiretapping laws for providing the federal government with private information. Despite federal court rulings to the contrary, the Department of Justice continues to assert that it does not require a warrant to access Americans’ emails, Facebook chats, and other forms of digital communication.

While it may be tempting to lay the full blame for these erosions of our privacy on the Obama administration, they are simply continuing a system of mass surveillance, the seeds of which were planted in the weeks after 9/11, when the National Security Agency (NSA) began illegally tracking the communications of American citizens. According to aWashington Post article published in 2010, the NSA continues to collect 1.7 billion communications, whether telephone, email or otherwise, every single day.

The NSA and Department of Justice are just two pieces of a vast surveillance network which encompasses and implicates most of the federal government, as well as the majority of technology and telecommunications companies in the United States. For the past two years, the United States Foreign Intelligence Surveillance Court has approved literally every single request by the federal government to spy on people within the United States. There have been some 4,000 applications rubberstamped by the court in the past two years, applications which allow federal officials to monitor the communications of any person in the United States, including American citizens, if they are believed to be in contact with someone overseas.

These government-initiated spying programs depend in large part on the willingness of corporations to hand over personal information about their customers to government officials. Sometimes the government purchases the information outright. At other times, the government issues National Security Letters, which allow the government to force companies to hand over personal information without a warrant or probable cause.

Some web companies, such as Skype, have already altered their products to allow government access to personal information. In fact, government agents can now determine the credit card information and addresses of Skype users under suspicion of criminal activity. Aside from allowing government agents backdoor access to American communications, corporations are also working on technologies to allow government agents even easier access to Americans’ communications.

For example, Google has filed a patent for a “Policy Violation Checker,” software which would monitor an individual’s communications as they type them out, whether in an email, an Excel spreadsheet or some other digital document, then alert the individual, and potentially their employer or a government agent, if they type any “problematic phrases” which “present policy violations, have legal implications, or are otherwise troublesome to a company, business, or individual.” The software would work by comparing the text being typed to a pre-defined database of “problematic phrases,” which would presumably be defined on a company-by-company basis.

The emergence of this technology fits in well with Google chairman Eric Schmidt’s view on privacy, which is that “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” Unfortunately, this is not just the attitude of corporate benefactors who stand to profit from creating spy technology and software but government officials as well.

Additionally, police officials throughout the country have become increasingly keen on monitoring social media websites in real time. Rob D’Ovido, a criminal justice professor at Drexel University, has noted that, “The danger of this in light of the tragedy in Boston is that law enforcement is being so risk-averse they are in danger of crossing that line and going after what courts would ultimately deem as free speech.”

For example, Cameron Dambrosio, a teenager and self-styled rap artist living in Metheun, Massachusetts, posted a video of one of his original songs on the internet which included references to the White House and the Boston bombing. While the song’s lyrics may well have been crude and ill-advised in the wake of the Boston bombing, police officers exacerbated the situation by arresting Dambrosio and charging him with communicating terrorist threats, a felony charge which could land him in prison for twenty years.

Unfortunately, cases like Dambrosio’s may soon become the norm, as the FBI’s Next Generation Cyber Initiative has announced that its “top legislative priority” this year is to get social media giants like Facebook and Google to comply with requests for access to real-time updates of social media websites. The proposed method of encouraging compliance is legal inquiries and hefty fines leveled at these companies. The Obama administration is expected to support the proposal.

The reality is this:  we no longer live in a free society. Having traded our freedoms for a phantom promise of security, we now find ourselves imprisoned in a virtual cage of cameras, wiretaps and watchful government eyes. All the while, the world around us is no safer than when we started on this journey more than a decade ago. Indeed, it well may be that we are living in a far more dangerous world, not so much because the terrorist threat is any greater but because the government itself has become the greater threat to our freedoms.

On Wednesday, April 24, Communications Specialist Samantha Peetros appeared on Bread and Roses to discuss the local lockdown following the Boston Marathon bombings. Examining the friction between knowledge of one’s rights and genuine safety concerns, Samantha explains:

it was an overwhelming experience to see…the National Guard….. At the same time there is that sense of comfort, and it’s hard to deal with those conflicting thoughts. But I’m also very aware of what this could mean for civil liberties…”

Samantha also raised questions regarding possible outcomes if the public chose not to cooperate with state and federal agents during the Boston lockdown.

On Monday, May 6, Legal Fellow Michael Figura appeared on Connecticut’s Counterpoint Radio to discuss the ongoing hunger strike in the Guantánamo Bay. Michael explains the dire situation facing many unjustly and indefinitely detained men at the detention camp:

Over half of them have been cleared for release by the United States Government…yet they’re still held there. Many of these men have been held there 10-11 years now.

This austere, peaceful protest staged by over one-hundred men, which has prompted further human rights violations by our government, draws greater scrutiny to the globally infamous injustices inside Guantánamo Bay. However, while the Obama Administration chants its chorus of closure, an end to Guantánamo remains unseen.

Also on May 6, Executive Director Shahid Buttar appeared on the NextNewsNetwork to discuss the Obama Administration’s policies including extrajudicial assassination of US citizens and dragnet surveillance. Shahid follows this commentary with a compelling discussion of the consistent evasion of judicial review by presidents from both political parties, and Congress’ abdication of its constitutional responsibilities. He suggests (at 11:15) that the rule of law no longer exists in the United States, before observing a disturbing double standard between mass incarceration for minor crimes, and the continuing prestige — and public paychecks — for war criminals such as John Yoo and federal appellate judge Jay Bybee.

Stay with us for the latest BORDC press hits and coverage of issues that impact the liberties and lives of all Americans.

For a comprehensive view of BORDC’s latest news coverage, and to find out how to reach staff for comment, and more, view our online press resources.