Privacy, and open government: both under assault

Stephen H. Unger
August 16, 2013

It is becoming increasingly clear that the US government is simultaneously assaulting both the openness of government that is an essential pillar of democracy, and the privacy of citizens. Since the end of WW II, governmental secrecy has been rapidly growing, as measured by the continued expansion of the amount of information classified as secret, and the number of people in and out of government "cleared" to access secret material [Unger]. (A parallel trend is the increasing tendency for private corporations to keep secret such information as the ingredients and origins of their products.) At the same time that citizen knowledge of what the government is doing is being greatly reduced, government access to information about the affairs of individual citizens is being significantly expanded.

An important part of the process of snooping on communications is the mechanism used to give legal cover to various forms of governmental eavesdropping. This consists of warrants issued by an unusual kind of court.

FISA: Foreign Intelligence Surveillance Court

The ostensible function of the FISA court [Wikipedia-FISA] (established in 1978) is to issue warrants requested, usually by the National Security Agency (NSA) or the FBI, to surveil suspected foreign agents within the US. In practice today, as will be made evident below, the subjects of FISA approved surveillance operations consist mainly of US citizens. Foreigners outside of the US are also often included.

The FISA court consists of 11 judges, appointed for 7 year terms, by the chief justice of the US Supreme Court. Unlike every other judicial appointment process that I am aware of, there is no ratification process. A warrant is issued by a single judge on the basis of an agency request. If a request is denied, the agency can appeal to the Intelligence Surveillance Court of Review, a 3-judge court whose members are also appointed, without ratification, by the Chief Justice. Unlike conventional warrants, a single FISA warrant can cover large numbers, sometimes millions, of people [Katikala]. The Fourth Amendment concepts of probable cause and particularity have been scrapped.

The FISA court behaves as a rubber stamp. Since its inception it has denied only 11 out of more than 33,900 requests for warrants. None of the over 5100 requests made since 2009 have been denied.

There is no mechanism, adversarial or otherwise, for ensuring that requests for such warrants have been properly made, and that they are used as specified. The entire process is enshrouded in secrecy. The chief judge of the court, Reggie B. Walton, recently stated that the court has no way to verify that the information given to them by the executive branch is accurate, or that the government is complying with their rulings [Leonnig]. Since only the executive branch has knowledge of and access to the FISA court, the principle of checks and balances that we learned in school is fundamental to American government is ignored in this realm, as is the concept of open government.

What about congressional oversight?

Did I overlook the claim that NSA and other surveillance activity is being monitored by congress? Not really. Ordinary members of congress are told no more about what is going on than what is known to the general public. When they try to get more information, they are stonewalled [Greenwald].

Even members of the House and Senate Intelligence committees are unable to rein in the intelligence agencies. They are prohibited from speaking out publicly when they learn about, or suspect, abuses. Referring to the Patriot Act as it pertains to surveillance, Intelligence Committee members, Senators Ron Wyden and Mark Udall complained to Attorney General Holder that, "...there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows." [Holan]

In effect, there is no check on the executive branch's claims that its surveillance operations are justified by considerations of national security. All efforts to contest such claims in specific court cases have been blocked by arguments that litigation on such matters would jeopardize national security by exposing vital state secrets.

Are whistleblowers good or bad?

A principal means by which excessive governmental secrecy can be countered is action by government employees or contractors at various levels to make public important material that it unjustifiably being kept secret. Such so-called whistleblowers have always been an important check on abuse of power, corruption, and incompetence.

During the 2008 presidential campaign, the Obama-Biden team pledged to protect whistleblowers [Obama-08]. Their campaign statement on this topic said:

Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled as they have been during the Bush administration. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

A more recent statement by the Obama Administration on this topic [Ellman] (February 22, 2013) reads:

With the passage of the Whistleblower Protection Enhancement Act, and President Obama's landmark directive extending whistleblower protections to the intelligence and national security communities for the first time, Federal workers who expose waste, fraud, and abuse of authority in government will receive the protection they deserve.

But the actions of the Obama administration have been rather different from what one might have expected in the light of the above quotations, which are not unique. During the 2012 election campaign an Obama campaign statement [Obama-12] dealing with this subject proudly (and accurately) proclaimed:

President Obama has done more than any other administration to forcefully pursue and address leaks of classified national security information. Here are the facts:

The gap between the rhetoric and actions of the administration is astounding--and dismaying. Those who performed what were characterized rhetorically as "acts of courage and patriotism" are, in practice, treated as "leakers", and blowing the whistle by revealing "secret" information to journalists (and thereby, to the public) is equated with espionage--the passing of significant national security information to enemies of the country [Masnick-leakers]. Along the same lines, the government has also attacked journalists who are receptive to information from whistleblowers [Todd].

In this schizophrenic context, it is interesting that, altho frequently praising whistleblowers in general (as in the first two of the above quotes), Obama, as president, has never found good words for an actual person who has blown the whistle [Sledge].

Administration statements responding to criticisms of its surveillance activities are characterized by obscurity. Words such as "incidental", "relevant", and "targeted" are frequently used in misleading ways that distort their commonly understood meanings [Timm].

A big league whistleblower

For some time now there has been considerable evidence in the public realm that the US government has been spying on people all over the world, including American citizens in the US. E.g., in 2006, Russell Tice, who had been employed over a period of two decades by various intelligence agencies, including the NSA, said that there was large-scale NSA eavesdropping on phone calls without legal warrants [Ross].

The NSA revoked his security clearance and fired him. But, perhaps because he was careful not to reveal details or provide copies of secret documents, the Bush administration did not prosecute Tice.

The revelations of Edward Snowden [Wikipedia-Snowden] are more dramatic. Rather than speak in generalities, he released a number of secret documents that revealed, in great detail, the enormous scope of NSA surveillance on a worldwide basis. This surveillance covers email and other internet communications, phone calls, and even bugging the offices of diplomats of friendly nations both in the US and abroad. Truly massive amounts of information are collected and stored.

Snowden solidly documented the way the US government has been using modern technology to expand on the kind of surveillance of citizens depicted in the classic novel, "1984". Detailed logs listing recipients and topics of email correspondence and phone calls are being compiled and stored by the NSA. The agency is also intercepting and storing the contents of emails, text messages, and phone calls. There are no effective restrictions on the accessing of such material by government employees or contractors, altho various officials and legislators have made contradictory, often vague, statements on this [CNET].

It is claimed by some that Snowden should have used internal mechanisms for calling attention to the problems he saw, rather than release classified material to the public. This is not a very realistic position, given the experiences of others who did take this path. The Government Accountability Project (GAP), perhaps the leading organization in the area of whistleblower protection, considers Snowden's action to have been very appropriate [GAP]. Others have pointed out that, contrary to what President Obama said about Snowden's failure to use internal mechanisms, that such mechanisms are not available to employees of contractors (which is what Snowden was), as opposed to government employees [Masnick-Protection ].

Especially in the light of the vicious way the Obama administration attacked whistle blowers such as Bradley Manning, John Kiriakou, and Thomas Drake, it took great courage, patriotism, and a strong moral sense for Edward Snowden to give up his promising career and comfortable life in order to call the attention of the public to this assault on our civil liberties.

A bizarre sidelight is the fact that the government has blocked access by army personnel to the website of the Guardian (British-based news organization that has been publishing material released by Snowden). An army information assurance security officer (perhaps in an attempt at comic relief) explained that this is "to prevent an unauthorized disclosure of classified information" [Molnar].

Why worry about privacy violations?

"I have nothing to hide, so I don't care if government agents read my email or listen to my phone conversations." This expresses the views of many Americans to concerns about privacy losses due to the operations of the NSA, FBI, etc. It is a very short-sighted attitude.

Stripping people of privacy by eavesdropping on their communications has always been a prime characteristic of totalitarian governments, such as those of Nazi Germany and the Soviet Union. Altho not many Americans would be significantly harmed today by the kind of privacy loss under discussion, this may not hold for the future. It was certainly not true in the past.

During the McCarthy era, many people were greatly harmed by disclosures of information about them that involved no wrong-doing. Past views that they no longer held, and current views that were perfectly legal, but not in line with the prevailing national ideology, were used against them, often making them unemployable. Such matters as being related to, or friends with, a person considered to be a radical caused great career damage, leading, in some cases, to suicides. The surveillance methods discussed here would have greatly facilitated such attacks.

A current indication that this sort of problem is not just history is the No-Fly list. People on this list, including American citizens, are prohibited from flying. There is no legal process that put them there, and there is no simple way to contest inclusion, or even to find out if you are on the list, short of buying a ticket and trying to board a plane [Zetter][Wikipedia-no-fly]. The massive data files being created by the NSA via its surveillance operations is a plausible resource for adding names to the No-Fly list.

Many politicians have had extra-marital affairs, or engaged in other potentially embarrassing sexual activity. Others have exploited inside information, unethically, or even illegally, for financial gain, or have used campaign funds illegally. If evidence of such can be retrieved from email, telephone, or other records, they would become vulnerable to blackmail, subjecting them to control by government agents.

Defenders of the current system claim that abuses are precluded by strict rules limiting access to surveillance files. Such claims are not persuasive, since there are so many people involved in the agencies and private companies building and maintaining these files. The level of secrecy makes it impossible for outsiders to verify whether various purported safeguards are being properly implemented. As pointed out above, those kept in the dark include members of congress.

It remains to be seen whether Edward Snowden's revelations will be sufficient to jolt enough Americans into recognizing how far we have gone toward developing--and I don't think the words are too strong--a new version of totalitarianism. Bear in mind that the same government carrying out the activities discussed above has also been imprisoning, torturing, and killing people, including Americans, all over the world (and not just on battlefields) without a semblance of due process. So far, this has been done on a relatively small scale, but precedents are being established that could easily lead to such atrocities being made routine.


CNET, "NSA spying flap extends to contents of U.S. phone calls", CNET, June 15, 2013

Lisa Ellman and Nick Sinai, "Fulfilling our Commitment to Open Government", The White House Blog, February 22, 2013

GAP, "GAP Statement on Edward Snowden & NSA Domestic Surveillance", GAP, June 14, 2013

Glenn Greenwald, "Members of Congress denied access to basic information about NSA", The Guardian, August 4, 2013

Angie Drobnic Holan, "In Context: the Wyden-Udall letters on government secrecy", PolitiFact, June 6th, 2013

Shaq Katikala, "Supreme Court FISA Decision: How the NSA and the Courts Are Trashing the First Amendment", Policymic, Feb. 2013

Carol D. Leonnig, "Court: Ability to police U.S. spying program limited", Washington Post, August 15, 2013

Mike Masnick-leakers, "Obama Administration Has Declared War On Whistleblowers, Describes Leaks As 'Aiding The Enemy'", Techdirt, Jun 21, 2013

Mike Masnick-Protection, "Obama's Simply Wrong: Whistleblower Protections Would Not Have Applied To Snowden", Techdirt, Aug 9, 2013

Phillip Molnar, "Restricted web access to The Guardian is Armywide, officials say", Monterey Herald, 6/27/2013

Obama-08, "The Change We Need In Washington", September 22, 2008

Obama-12 Team, "Fact check: President Obama has aggressively pursued and addressed national security leaks",, August 16, 2012

Brian Ross, "NSA Whistleblower Alleges Illegal Spying", ABC News, Jan. 10, 2006

Matt Sledge, "Obama Has Rarely Or Never Praised Whistleblowers", Huffington Post, 5/18/2013

Trevor Timm, "A Guide to the Deceptions, Misinformation, and Word Games Officials Use to Mislead the Public About NSA Surveillance"Electronic Frontier Foundation, August 14, 2013

Tricia Todd, "The United States vs. Freedom of Speech", Huffington Post, 6/3/2013

Stephen H. Unger, "Governmental Secrecy: Shield for Tyranny, Incompetence, and Corruption", Ends and Means, September 14, 2011

Wikipedia-FISA, "Foreign Intelligence Surveillance Act From ", Wikipedia

Wikipedia-no-fly, "No Fly List", Wikipedia

Wikipedia-Snowden, "Edward Snowden", Wikipedia

Kim Zetter, "Man Banned Mid-Trip by No-Fly List Gets Stranded in Hawaii", TechDirt, 10/22/12

Comments are welcomed and can be sent to me at unger(at)cs(dot)columbia(dot)edu

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