This is the fourth in a series of guest commentaries written in observance of Choose Privacy Week by noted privacy experts and advocates. Today’s post is written by Rachel Levinson Waldman, Counsel for Liberty and National Security Program at the Brennan Center for Justice at New York University Law School.
A Dictatorship of Data Banks
In 1974, privacy expert Arthur Miller warned the Senate about the dangers of indiscriminate government data gathering, cautioning that “dictatorships always have come with hobnailed boots and tanks and machineguns, but a dictatorship of dossiers, a dictatorship of data banks can be just as repressive, just as chilling and just as debilitating on our constitutional protections.”
When Professor Miller issued his warning, President Nixon had just resigned in disgrace. Two years later, the Church Committee revealed that the FBI, CIA, and NSA had collaborated with the White House to monitor and infiltrate domestic social justice groups and left-leaning political movements, developing the data banks that Professor Miller had described. In the aftermath of these revelations, Congress passed a host of privacy-protective laws meant to guarantee transparency and oversight, limit collection of information about Americans, and protect First Amendment freedoms.
In the post-9/11 era, these laws – already weakened in the thirty-odd years before the attacks – have been watered down almost beyond recognition or simply sidestepped through the prolific use of legal exemptions. Law enforcement and intelligence agencies may now gather innocuous information about Americans with no basis to suspect wrongdoing and can base investigations in part on First Amendment-protected activities. At the same time, an architecture of information-sharing has sprung up, driven by information collection, sharing, and retention directives that make little distinction between criminal and non-criminal behavior, relying instead on undefined “national security” interests.
The Church Committee, which warned that “the massive centralization of … information” is “inimical to the privacy of citizens,” would be astonished by the breadth of the federal government’s present-day powers, which have been further magnified by electronic storage and sharing capacities that were unknown forty years ago.
The FBI can now probe the constitutionally protected speech of individuals and groups on the basis of “no particular factual predication.” In the course of these investigations, called assessments, the FBI can monitor public Facebook and Twitter postings, troll commercial databases, deploy informants, and physically surveil presumptively innocent targets and their family and friends. And in keeping with the new presumption that Americans are guilty until proven innocent, the Bureau is directed to keep even innocuous information nearly indefinitely on the grounds that it may eventually prove useful. A 2010 report by the Department of Justice Inspector General found that in the five years after 9/11, the FBI recorded information about the First Amendment activities of a peace and social justice center; maintained files on a group planning a public anti-war rally; and opened investigations that placed PETA and Greenpeace members on federal travel watchlists for years.
The Department of Homeland Security has flexed similar muscle at the border, where it asserts the power to search and copy information from a traveler’s laptop, camera, smartphone, or tablet with no suspicion of criminal wrongdoing. Some DHS representatives appear to have used that authority in part to target and harass travelers on the basis of their race or religion – including U.S. citizens who are Muslim or whose families hail from Middle Eastern countries – or their First Amendment-protected activities, taking advantage of the border’s “Fourth Amendment-free zone” to copy and detain electronic devices without a warrant. Much of the captured information ends up strewn throughout a range of government databases, where it is kept for up to 75 years and made available to other agencies, private parties, and foreign governments.
In the meantime, particularly in the wake of the despicable attacks in Boston, the calls for increased surveillance and information collection grow louder. Cameras are an easy force multiplier, and municipalities and police departments will be tempted by drones and sophisticated license plate readers – new technologies that, if deployed indiscriminately, presage a society in which a person’s movements outside the home are chronicled from birth to death.
The combination of the federal government’s existing powers and expanded electronic surveillance will undermine privacy while offering little in the way of terrorism prevention. The indiscriminate collection of information is sometimes justified by the need to “connect the dots,” a phrase often used to describe sifting through vast government databases to look for patterns suggestive of terrorist or other criminal activity. While this type of data mining works well when used by credit card companies to identify purchasing patterns, experts agree that it is an unsuitable tool for terrorism prediction. Terror attacks are rare and disparate, unlike credit card purchases, and therefore do not offer reliable patterns to mine. Moreover, the information that would need to be collected (emails, phone calls, meetings, and more) strikes too close to constitutionally protected freedoms, and the consequences of falsely fingering someone as a potential terrorist are far too grave.
The wholesale collection and retention of data about Americans also risks overwhelming the very systems designed to prevent terrorism. As a White House review of the Christmas Day bomber noted, a significant amount of critical intelligence information had been collected but was “imbedded in a large volume of other data.” Less diplomatically, a former chief at the Department of Homeland Security branch described some reporting from the state and local level as “a bunch of crap … coming through.” An overabundance of information makes it hard to separate the wheat from the chaff, while simultaneously increasing the risk of reaching mistaken conclusions.
Finally, as Republican Senator Barry Goldwater observed four decades ago, “A person who fears that he will be monitored may, either subconsciously or consciously, fail to fully exercise his constitutionally guaranteed liberties. The mere existence of such fear erodes basic freedoms and cannot be accepted in a democratic society.” The NYPD’s long-term monitoring of Muslim communities offers a case study: the Department’s efforts inhibited social activism and political debate, destroyed previously collaborative relationships with the police, and prompted college student groups to ban constitutionally-protected political discussions – all without producing a single investigative lead.
We must, of course, remain vigilant on domestic security. Choosing privacy is not a threat to the country’s safety; it is, instead, a reaffirmation of our vibrant and robust democracy.
Rachel Levinson-Waldman is counsel to the Liberty and National Security Program at the Brennan Center for Justice. In that capacity, she works on issues including the federal government’s collection, sharing, and retention of information about Americans. Prior to joining the Brennan Center, she was Senior Counsel to the American Association of University Professors, where she spoke and wrote extensively on academic freedom and the First Amendment.