(MintPress) – There are few rights people take as seriously as their right to privacy. Most people want to live their lives as they wish; unmeasured, unchecked and unexamined. Ultimately, the life a person chooses to live is the only defining measure of him or her; it is expected that that life should not have to go through arbitrary and artificial checks to see if it measures against the norm.
Most people are surprised, though, when they realize that neither the United States Constitution nor the federal government makes any absolute guarantees of personal privacy. While certain details of a private life is protected (privacy of religion, privacy of the home for government intrusion, privacy from unreasonable searches and seizures), the right to not be observed or monitored is not explicitly spelled out.
However, in two Supreme Court decisions, the Court ruled that the 14th Amendment — which states that no state shall deprive any person of life, liberty or property without due process of law — is a de facto declaration of state-based privacy protection. This leaves troubling gaps when considering the federal government’s obligation to the privacy of the private citizen. While laws exist to protect the individual from privacy breaches from companies and institutions, the federal government has been hesitant to restrict its own power to investigate.
This becomes even more troubling when the surveyed persons are not Americans or do not live in the United States. Certain federal legislation, such as the Foreign Intelligence Surveillance Act of 1978 — which allows the federal government to collect intelligence retrieved by conducting physically or electronically surveillance on ”agents of a foreign power” suspected of espionage — and the PROTECT America Act of 2007 — which removes the warrant requirement for communications beginning or ending in a foreign country and authorizes the attorney general or the director of national intelligence to order the acquisition of communication, for up to a year, concerning “persons reasonably believed to be outside the United States” involved in activities that risk national security.
This is of concern for many academics overseas, who connect to American computer systems for collaboration and research. In a Nov. 27 paper, “Cloud Computing in Higher Education and Research Institutions and the USA Patriot Act,” researchers from the University of Amsterdam’s Institute for Information Law argue that legislation designed to allegedly protect the security of American citizens has eroded privacy protections on a global scale.
“The U.S. government has ample possibilities to request data from foreign (in this case Dutch) users of the cloud. The most striking example in this regard is the specific provision (50 USC § 1881a) introduced in 2008 for the acquisition of data of non-U.S. persons outside the United States, given the far-reaching powers it grants to retrieve information on a large scale, including access to complete data sets. U.S. authorities also have powers to request information from cloud providers in the context of criminal investigations. Jurisdiction under U.S. law is a necessary precondition, which is effectuated when cloud providers are based in the United States or if they conduct continuous and systematic business in the United States. It is a misconception that U.S. jurisdiction applies only if the data are physically located on U.S. territory.
“European and Dutch privacy laws (such as the Dutch Data Protection Act, Wbp) offer no safeguards against the exercise of these powers by the U.S. government. Nor can this risk be eliminated by contractual agreements. Whereas contracts would otherwise offer a solution in terms of providing a legal framework for risks, it is not possible from a legal point of view to use them to restrict the powers of law enforcement or intelligence agencies. From an international legal perspective and given the importance of the confidentiality of information for higher education and research institutions, these conclusions give cause for concern. At the end of the day, however, a real solution can only be found at an international level.
“In practice, little can be said about the question as to how often the U.S. government will actually exercise the powers described. There is little or no transparency about the exercise of these powers and the cloud service providers in question typically face legal obligations of secrecy, also with respect to those immediately concerned. This makes it difficult to assess the risk that data will actually be requested. At the same time, one may expect that requests for information from cloud providers will become an increasingly important weapon in the arsenal available to intelligence and security agencies …”
Last year, Microsoft U.K.’s managing director Gordon Frazer was asked, “Can Microsoft guarantee that EU-stored data, held in EU based datacenters, will not leave the European Economic Area under any circumstances – even under a request by the Patriot Act?” He answered, “Microsoft cannot provide those guarantees. Neither can any other company.”
In 1975, the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities was called to investigate allegations of the Federal Bureau of Investigations and the Central Intelligence Agency illegally spying on American citizens. The result of this investigation, in which it was discovered that more than 215,000 pieces of mail were opened and photographed and multiple heads of state — including Patrice Lumumba of the Congo, Rafael Trujillo of the Dominican Republic, the Diem brothers of Vietnam, General Rene Schneider of Chile and Fidel Castro of Cuba — were marked for assassination by the federal government, was the naming of George H. W. Bush as CIA director and the establishment of the Foreign Intelligence Surveillance Court — which is a secret court that grants warrants for intelligence surveillance — and the Foreign Intelligence Surveillance Act.
It’s curious how some of the players involved in the 1975 intelligence crisis, such as Donald Rumsfeld, found their way into the Bush administration. It is also curious that President Bush, in signing into law the Postal Accountability and Enforcement Act, attached a signing statement asserting the government’s power to open first-class mail without a warrant — a power first granted under FISA.
In an interview with RT, William Binney, the National Security Agency mathematician and code breaker who was the whistleblower on the agency’s aggressive electronic surveillance programs, said this:
RT: In light of the Petraeus/Allen scandal while the public is so focused on the details of their family drama, one may argue that the real scandal in this whole story is the power, the reach of the surveillance state. I mean if we take General Allen – thousands of his personal e-mails have been sifted through private correspondence. It’s not like any of those men was planning an attack on America. Does the scandal prove the notion that there is no such thing as privacy in a surveillance state?
William Binney: Yes, that’s what I’ve been basically saying for quite some time, is that the FBI has access to the data collected, which is basically the emails of virtually everybody in the country. And the FBI has access to it. All the congressional members are on the surveillance too, no one is excluded. They are all included. So, yes, this can happen to anyone. If they become a target for whatever reason – they are targeted by the government, the government can go in, or the FBI, or other agencies of the government, they can go into their database, pull all that data collected on them over the years, and we analyze it all. So, we have to actively analyze everything they’ve done for the last 10 years at least.
RT: And it’s not just about those, who could be planning, who could be a threat to national security, but also those, who could be just…
WB: It’s everybody. The Naris device, if it takes in the entire line, so it takes in all the data. In fact they advertised they can process the lines at session rates, which means 10-gigabit lines. I forgot the name of the device (it’s not the Naris) – the other one does it at 10 gigabits. That’s why they’re building Bluffdale [database facility], because they have to have more storage, because they can’t figure out what’s important, so they are just storing everything there. So, emails are going to be stored there in the future, but right now stored in different places around the country. But it is being collected – and the FBI has access to it.
RT: You mean it’s being collected in bulk without even requesting providers?
WB: Yes.
The price of our liberties
In March of 2002, John Poindexter, national security adviser to President Reagan, sat down with General Michael Hayden, director of the National Security Agency, to discuss a new program called Total Information Awareness — a Pentagon directive that scans the world’s electronic communication spectrum (phone calls, emails, financial and travel records, instant messages and so on) in order to tag and identify terrorism-related communications. A year later, when the plan was discovered, the government was embarrassed, Poindexter resigned and Total Information Awareness was dismantled.
Almost 10 years later, however, the spirit of Total Information Awareness lives on with the NSA. Evidence has emerged recently to suggest that the NSA has continued the government’s surveillance of electronic communications from both abroad and from American citizens.
In Bluffdale, Utah, the National Security Agency is constructing a massive data center capable of storing yottabytes (a yottabyte is equivalent to 1.024 trillion gigabytes) of data. To put this into perspective, the entire Internet is thought to have about 500 exabytes of data, as of 2009; this center would store the whole of the Internet at least 2 million times over.
As reported by Wired, the $2 billion Utah Data Center will intercept, decipher, analyse and store data from the world’s communication networks. The center is expected to be finished by September 2013. The center — the product of nearly a decade of government-funded research in cryptanalysis — is designed to quickly decode password-protected or encrypted data packets — including foreign intelligence communiques, personal emails, phone calls and financial transactions. This information is collected through cooperation with the major communication utilities, including Verizon and AT&T.
This information has been leaked to the public through the testimony of James Bamford, who documents his observations with the NSA in his book “The Shadow Factory: The Ultra-Secret NSA from 9/11 to the Eavesdropping on America,” and through the whistleblowing of former senior NSA official William Binney. Since the publication of these allegations, WikiLeaks, Privacy International, the American Civil Liberties Union and other groups have verified the details of the claims.
The rationale behind all of this is simple, if not disturbing. In 2002, President Bush, in reaction to the 9/11 attacks, issued a presidential order for the NSA to aggressively engage in FISA surveillances against suspected foreign terrorism agents without a warrant.
In doing this, the NSA ran into a logistical problem: The communication spectrum is so vast, that they would have to listen to every call and read every data packet in order to find the evidence that they sought. To get around this, the agency started to anonymize incoming communication packets, which would protect, in theory, the anonymity of the innocent individual while still allowing access to communication flows.
Ultimately, as the program found some success, the scope of the operation expanded to the point where the NSA now not only monitors all communication going to or from terrorism suspects, but all American-based communication in the vague hope that a terrorist attack can be stopped in the seemingly harmless third-party reading of personal communiques.
In the end, this loss of privacy affects us all. When we talk to our loved ones, do our daily work or interact socially, we do this exclusive for the government. The core of the American identity is that the government serves and is of the people and not vice versa. In sacrificing our rights to be individuals toward an identity where our private self is public, we begin a slippery slide in which we encourage the abandonment of other rights for the public good.
Is it unreasonable for the government to tell us how to eat?
Is it unreasonable for the government to tell us who to marry?
Is it unreasonable for the government to tell us where to live and where to worship?
Is it unreasonable for the government to read your mail?
Ultimately, we must all choose between our security and our liberty; is it more important to be free or safe? Benjamin Franklin once said, “They who can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
Consider Jarod Kintz’s position from “The Days of Yay are Here! Wake Me Up When They’re Over”: “If I have to beat you up to keep you safe, that’s just what I’ll do. It’s this kind of regard for others that makes me believe I’d be a good politician.”