Taking Liberties: The War on Terror and the Erosion of American Democracy (18 page)

The idea behind Total Information Awareness—to collect as many dots of information as possible in the hope that some of those dots might somehow be connected at some point—continued to be a centerpiece of the Bush/Cheney approach to counterterrorism.
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The Patriot Act gave the government many new tools to conduct surveillance and to gather information about Americans from third parties—including the special obligations imposed on “financial institutions.” And the Bush Administration went beyond the Patriot Act in dealing itself additional means of gathering information—like the infamous National Security Agency (NSA) spying program (to be discussed in
chapter 10
). But the easiest way for the government to acquire data from businesses is simply to ask. Private companies can often be prevailed upon to share information without any legal compulsion—or can be pressured into doing so by threats or promises regarding government contracts, or exhortations to be patriotic. As part of a Cold War operation known by the code name “Shamrock,” Western Union voluntarily turned over the contents of private telegrams to the government.
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During the past decade major airlines from American
to United admitted to sharing voluntarily millions of passenger records with the FBI.
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Antiterrorism financing programs relied heavily on the voluntary cooperation of a powerful Belgian banking consortium called Swift, as mentioned in
chapter 3
, to supply data about international financial transactions.
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Most major telecommunications companies cooperated with Bush’s extralegal NSA surveillance program. And more recently, Sprint Nextel was revealed to have given the government access to information about the whereabouts of its cell phone customers on over eight million occasions.
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Alternatively, the government can buy information from fourth parties. Businesses called data aggregators collect and market masses of information about identifiable individuals from every source imaginable—eviction notices, E-ZPass records, sex toy purchases, unlisted telephone numbers, religious affiliations, Prozac orders, child custody orders, book purchases
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—and cross-index data to generate specialized lists like “Affluent Hispanics,” “Big Spending Vitamin Shoppers,”
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or the “Gay America Megafile.” As early as 2001, the Justice Department was entering into multimillion-dollar contracts for bulk information.
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The government is not just a customer of these private multibillion-dollar businesses, but a partner. A ChoicePoint executive told a reporter, “We do act as an intelligence agency, gathering data, applying analytics.”
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The revolving door of company executives and government officials attests to that collaboration. Some officials who have left government employment have later gone to work for these companies.
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One has to wonder to what extent the government’s antiterrorism plans have been influenced by companies lobbying to profit by selling materiel for the War on Terror.

This symbiotic relationship serves many functions for the government. By outsourcing data collection, the agencies can avoid the Constitution’s and Congress’s limits on their own direct acquisition of data—like the need to get a court order or to comply with privacy laws regarding government collection of information. In the United States, unlike almost any other industrialized nation,
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federal privacy laws restricting government collection of data do not generally apply to private data collection. (As this book goes to press, the Department of Commerce, members of Congress, and many others have been advocating the passage of new privacy protection laws to promote international commerce as well as civil liberties.) The Patriot Act carved out generous exceptions to preexisting privacy laws that prohibited businesses from disclosing information in certain areas regarded as especially sensitive—like educational, library, health, and electronic
services records—without a court order. Constitutional rights like the First and Fourth Amendments only apply to governmental actors. Unlike government surveillance, private data collection is not generally subject to oversight by Congress, Inspectors General, or courts. And by enlisting businesses, government agencies can pass on the costs of data collection to the private sector—ultimately to us as consumers. Thus there is no real disincentive to the government collecting and hoarding vast quantities of private data. Agencies can just keep amassing searchable dots, hoping that someday some of them will connect.

Does “dataveillance” work? The 9/11 Commission believed that lack of intelligence was not one of the problems leading to 9/11; other objective expert observers, like federal government agency Inspectors General, have not been able to find much evidence that the data mining approach is productive.
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The National Research Council of the National Academy of Sciences launched an extensive study following the public debates over the Total Information Awareness program and, in a 2008 report, concluded that there was simply no scientific consensus that contemporary data mining techniques were ready for use in terrorism investigations.
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Data mining is successfully used by the private sector—to detect consumer fraud or to select consumer goods to recommend to particular targets. But the Council noted that to be successful in searching for patterns, you have to know what pattern you are looking for, and we know very little about how to recognize potential terrorists because our information about patterns of terrorism is so sparse
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—as shown by the unsuccessful attempt to create a terrorist profile described above. And beyond the problem of sparse data, it is far from clear that there are underlying terrorist patterns to be discovered, no matter how much data we amass. Acts of terrorism may just be more distinct and distinctive than acts of money laundering. A 2010
Washington Post
study of intelligence efforts found that federal intelligence officers are in effect drowning in data and frequently don’t even look at much of the information flooding into their offices and computers.
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And imperfect understanding of what is being looked for inevitably generates an extraordinary number of false positives—attention drawn to innocent people.
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Why Should I Care?—Privacy and Democracy

If the benefits of dataveillance are unclear, what then are the corresponding costs? What are the consequences of omnivorous government databanks accumulating every bit of information that can be bought, compelled,
collected, or googled? In his groundbreaking 1967 book on privacy, Alan Westin posed the question, “Why should I care what the government knows about me if I’m not doing anything wrong?” He then answered the question: “The answer, of course, lies in the impact of surveillance on human behavior.”
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Students of privacy since then have identified many different ways in which behavior is affected by pervasive government data collection and data mining.

Intrusion
. Business records about you, including bank records of the checks you write or online payments you make and your medical or school records, provide a detailed and profoundly revealing picture of your whole life to any reviewer. Have you written a check to an HIV-testing clinic? Made a contribution to a splinter political group? Planned a trip to Yemen? Entered an institution for alcohol rehabilitation? Failed physics? The broader the dissemination of information about your life, the more you are exposed to others’ suspicion or scorn. Is it more or less upsetting that you won’t know how many people on the government payroll may be reviewing and reacting to details about your life? Will your behavior be affected if you don’t want to expose yourself by leaving tracks—perhaps paying for the HIV test in cash or deciding to go to the Grand Canyon instead of Yemen?

Confidentiality
. If you share information about your physical or mental condition with a doctor at a hospital, or information about your finances with a bank in order to apply for a mortgage, you agree to share with a limited audience for a limited purpose. Your sense of trust in that relationship may be shaken by knowing that the doctor or bank may be passing that information on to government databanks, voluntarily or not. Without any real guarantee of confidentiality, you may not be willing to share information the doctor or mortgage broker needs in order to help you.

Control
. If you cannot choose the extent to which your information will be shared, you lose control of who will have access and whether you will be judged out of context.
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Scott McNealy, CEO of Sun Microsystems, famously said, “You already have zero privacy—get over it.” But young Facebook users who do not mind exposing their views or their bodies on the Internet nevertheless care deeply about whether or not they themselves are in control of what information they decide to post.
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Identity Formation
. Michel Foucault found a powerful image of the modern world in Jeremy Bentham’s “Panopticon,” a circular prison where the inmates are within view of their guards at all times. This constant
exposure, he said, causes those on view to internalize the gaze.
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People who think they are always on view are likely to change their behavior, as Westin observed, to avoid acting in ways that might attract negative attention from the guards. This kind of behavioral self-censorship can over time transform a person’s identity.

Fear of Government Action
. There is a substantial difference between the potential consequences of sharing any kind of information with a business, a school, or a medical provider as opposed to the government. If your information is regarded negatively, a bank might refuse to give you a mortgage; the government, on the other hand, might decide to prosecute you on terrorism or tax evasion charges, or lock you up as a material witness. The Fifth Amendment privilege against self-incrimination gives us an enforceable right to have the government leave us alone. If the government asks you to supply information about your activities, you have a constitutional right to remain silent. You have no comparable right to refuse to tell the bank that you once defaulted on a mortgage.
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The bank is allowed to punish you for refusing to divulge such information by refusing to do business with you. The Constitution guarantees individuals a private enclave as against the government, not against private individuals or businesses.

The more information your bank and other businesses and institutions share with the government, voluntarily or not, the more “points of contact” the government then has with you, and “the stronger the grip of the government on the governed.”
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One reason Sami al-Hussayen was prosecuted was that federal agents were free to study his bank records and discover that he had made contributions to Muslim charities. As Sami’s prosecution also shows, adverse government action can be based on mistaken assumptions, so individuals do have reason to be concerned even if they are supremely innocent of any wrongdoing. But the reality is that many, probably most of us, have done something illegal or embarrassing at some point. By putting everyone under a microscope, the huge databanks give the government the power to have something on almost anyone, a power that can be used to go after political enemies or whatever religious or ethnic group is currently considered suspicious.

Blurring the boundary between what businesses can do and what government can do transforms the relationship of the individual and the government, reducing individual autonomy and increasing governmental power. Ultimately, blurring the boundary between the individual and the government is one of the hallmarks of a totalitarian state.
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Privacy and Democracy
. We all lose when any American loses privacy
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because the private enclave is the birthplace and incubator of democracy.
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Privacy, the subject of the Fourth Amendment’s guarantee against unreasonable searches and seizures, is essential to the exercise of First Amendment freedoms of religion, speech, and association.
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Our concept of the role of the individual in society could not exist without adequate protection of privacy.
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Hannah Arendt, while advocating for involvement in public life, recognized a “danger to human existence from the elimination of the private realm.” There are, she said, “a great many things which cannot withstand the implacable bright light of the constant presence of others on the public scene,” and so a “life spent entirely in public, in the presence of others, becomes… shallow.”
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The democratic structures reinforced by private thought and action then protect all of our rights, not only our right to privacy. Legal scholar Daniel Solove maintains that the better metaphor for the range of concerns raised by government dataveillance is not Orwell’s Big Brother, but Kafka’s
The Trial
.
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In Kafka’s haunting story, Josef K. is arrested and ultimately executed by an inaccessible and faceless bureaucracy that employs arbitrary and incomprehensible procedures and never tells him for what crime he is being prosecuted. The hallmark of Josef K.’s experience is his powerlessness against an omnipotent state. The motto of the Total Information Awareness program was, quite aptly, “Knowledge Is Power.” Innocent Americans caught in the web of watchlists and Suspicious Activities Reports experience not only a lack of privacy but a lack of power to understand or to fight back against an all-knowing, all-powerful, and incomprehensible state.