INDIVIDUAL RIGHTS AND RESPONSIBILITIES: The Business of Surveillance

Vol. 31 No. 3

By

Heidi Boghosian is the executive director of the National Lawyers Guild and co-host of the civil liberties radio show Law and Disorder.

Communications and information technology have advanced with such speed that privacy safeguards lag far behind. Retailers accumulate and store vast amounts of personal data, and telecommunications and other corporations frequently share this information with government intelligence agencies.

In addition to engaging in data mining, multinational companies are employing sophisticated technology, such as radio frequency identification (RFID) chips, semiconductors, and chips that can be configured to allow law enforcement “back door” access to monitor communications or that enable location-based services to track citizens’ whereabouts.

Computer matching: Building blocks of mass surveillance. Mass surveillance is accomplished in large part by computer matching, the integration and comparing of electronic data records from two or more sources. Software enables computer searches and record-linking based on a configuration of common elements and patterns such as names, addresses, or Social Security Numbers.

Despite early attempts to safeguard individuals’ privacy, the executive branch has embarked on a massive data-mining and data-storage program, digitizing personal information taken from a wide range of commercial and government sources. National security concerns raised in the aftermath of 9/11 and legislation such as the USA PATRIOT Act have lessened the protections of private information. Since the advent of the Total Information Awareness program, data mining has been a primary component of domestic spying. In contracting with government agencies, the private sector affords the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI) access to a treasure trove of personal information on Americans not suspected of any wrongdoing.

Storing aggregated electronic data heightens the potential to compromise individuals’ identity and privacy. Although the United States has no mandatory data retention law, if providers of public electronic communications or remote computing services store electronic communications or communications records, the government can obtain access under the Stored Communications Act (SCA). The SCA requires mandatory data preservation for up to 180 days if the government asks.

The government has applied pressure to lengthen the time data are stored. It met with industry representatives in 2006 to urge them to keep and network data for two years, claiming that retention was needed for child pornography and terrorism cases. The United States has also pushed to hold service providers responsible for restructuring systems to allow state agents a way to monitor electronic communications; since 1994, landline phone companies are required to design equipment according to FBI specifications, enabling law enforcement to better wiretap customer communications. The Federal Communications Commission succumbed to pressure from the Department of Justice, the FBI, and the Drug Enforcement Administration and enacted a regulation expanding the Communications Assistance for Law Enforcement Act to build in the ability to conduct surveillance on broadband Internet access services and interconnected voice over Internet protocol (VoIP) providers.

A potent partnership imperils First Amendment–protected activities. Surveillance by corporations in the form of obtaining e-mails and phone records not only violates privacy but also dampens First Amendmentprotected activities. Corporate spying on reporters who expose government injustices or corporate wrongdoing to uncover confidential sources threatens whistleblowers and the notion of a free press.

The practice of corporate spying was exposed when technology giant Hewlett-Packard contracted with independent security experts from 2005 to 2006 to investigate journalists to find the source of an information leak. Investigators engaged in pretexting, a spying technique by which company personnel impersonated nine journalists to obtain the reporters’ telephone records, Social Security Numbers, call logs, billing records, dates of birth, and subscriber information—all to determine the reporters’ sources.

Corporations routinely and readily hand over customers’ private personal data, absent warrants, to government agencies often without legal justification or beyond what was requested. The NSA has collected records of phone calls of millions of individuals with data provided by AT&T, Verizon, and BellSouth. Such data collection is authorized by legislation signed by Presidents Bush and Obama. Bush issued an executive order authorizing the NSA, without a warrant or other express approval, to monitor phone calls, e-mails, Internet activity, text messaging, and other communication involving any party believed by the NSA to be outside the United States, even if the other end of the communication lies within the United States.

Several former officials and telecommunications workers have indicated that the NSA program extends beyond the surveillance of those suspected to be linked to foreign terrorists. A significant disclosure came in 2005 when a former technician revealed that AT&T was cooperating with the NSA. The firm had installed a fiber optic splitter at a San Francisco facility that made copies of Internet traffic to and from AT&T customers and gave them to the NSA.

In light of this disclosure, the Electronic Frontier Foundation filed two lawsuits alleging that the NSA, in violation of federal law and with support from companies such as AT&T, intercepted the communications and obtained records of millions of Americans. Hepting v. AT&T was filed in 2006 alleging that AT&T allowed and assisted the NSA in unlawfully monitoring communications of AT&T customers, businesses, and third parties whose communications were routed through the AT&T network and whose VoIP calls were routed through the Internet. Hepting was appealed to the Ninth Circuit and dismissed in June 2009. The U.S. Supreme Court declined to review Hepting.

Jewel v. NSA was filed in 2008 on behalf of AT&T customers to stop the NSA and other government agencies from conducting warrantless surveillance of their communications and communications records. The district court heard the case in December 2012.

Location-based tracking systems. Anyone who has cruised through the EZ Pass lane of a toll booth, used a monthly subway swipe card, or searched for locations on a cell phone should know that all movements may be potentially recorded for use by a third party at a later date. The global positioning system (GPS), a government-maintained, space-based satellite navigation system, can be used to violate what is known as location privacy, the ability to move in public without being tracked or monitored.

Most cellular phones are equipped with GPS-receiving capability. Unless the power is turned off, a mobile phone stays in constant communication with the nearest cell towers even when not being used for a call. Information processed by the cells can be used to precisely locate or track the movements of a phone user.

RFID chips use electromagnetic energy in the form of radio waves to communicate information from a distance such as with EZ Pass and keyless remote systems for cars and garage door openers. Initially invented for retail inventory purposes, the RFID chips are embedded in many articles of clothing. The Federal Highway Administration hopes to embed RFIDs into all American-manufactured cars, installing a global positioning transmitter that can track vehicles by satellite and a wireless device that uploads location as it passes certain hot spots.

Many nightclubs use ID scanners to verify patrons’ ages. Software on bouncers’ smartphones reads information from driver’s license barcodes or magnetic strips to extract gender, age, zip code, and time of entry. The information goes to the company’s database for aggregation and analysis and is available to bars and marketers.

Conclusion. The more we grow to accept that all kinds of information will be transmitted about us in everyday life, the more we accede to the potential abuses of this information. In George Orwell’s 1984, the all-seeing state was represented by a two-way television set. In a more modern adaptation, it is represented by the devices we carry in our pockets and the clothes we wear on our backs.

ABA Section of Individual Rights & Responsibilities

This article is an abridged and edited version of one that originally appeared on page 2 of Human Rights, March 2013 (39:3).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

WEBSITE: americanbar.org/irr

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