By Julia Harumi Mass, Staff Attorney, ACLU of Northern California
What does an 86-year-old art photographer have in common with a young man with a video game habit?
Not just a proclivity for perfectly innocuous hobbies, unfortunately. These days, engaging in either activity can get the FBI on your case.
Today, the ACLU and our partners at Advancing Justice–Asian Law Caucus and Bingham McCutchen are taking the federal government to court over a surveillance program that targets people even if they are engaging in entirely innocent and constitutionally protected activity, and encourages religious profiling. As if that weren’t enough, the Suspicious Activity Reporting (SAR) program also violates the government’s own rules for the collection of criminal intelligence.
James Prigoff is one of our clients. He is 86 years old, and a renowned photographer of public art. He has lectured at universities and had his work exhibited at museums around the world. In 2004, he was stopped by security guards in Boston while attempting to take photos of a famous piece of public art called the Rainbow Swash, which is painted on a natural gas storage tank. Several months later, the FBI tracked him down at his house in Sacramento to question him about his activities in Boston.
Tariq Razak, a young scientist and Pakistani-American, is another plaintiff in our case. He became the subject of a SAR after a visit to a train depot in Santa Ana, California, where he had an appointment with the county employment resource center. He walked around the depot looking for the resource center, and his mother, who was wearing a hijab, accompanied him. He later discovered that this conduct led to a SAR describing him as “a male of Middle Eastern descent” who was suspicious because he was “constantly surveying all areas of the facility” and because he met up with a “female in a white burka head dress.”
Our other clients were also unfairly targeted, falling under government scrutiny for activities ranging from buying computers to playing video games. Several of them were profiled due to their perceived religious beliefs.
These “suspicious activities” may be absurd, but there’s nothing funny about the program. The Department of Justice (DOJ) and the Information Sharing Environment, a post-9/11 agency tasked with coordinating national security intelligence-sharing, have adopted lax standards for what constitutes “suspicious activity.” These standards violate a DOJ regulation from 1978 that prohibits law enforcement from sharing “intelligence” about individuals unless the information is supported by reasonable suspicion of criminal activity. The 1978 regulation was adopted in the wake of prior domestic surveillance abuses.
Predictably, eschewing those protections has turned back the clock. The government is ignoring sensible limits on criminal intelligence collection and actively encouraging not just law enforcement, but also private security guards, shopkeepers, hotel owners, and even neighbors, to collect and share information about innocent conduct.
- Hotels are advised to be on the lookout for guests who "request specific room assignments or locations" or use "payphones for outgoing calls."
- Rental car companies are instructed that "providing multiple names" on rental paperwork is to be "considered suspicious."
- Hobby shops should be wary of customers with an "unusual interest" in remote-controlled aircraft and those who pay in cash.
- The general public is cautioned to report "unusual activity," including "people acting suspiciously" and "people in places where they do not belong."
If “acting suspiciously” or being somewhere someone thinks you don’t “belong” is enough to put people into federal counter-terrorism databases, it’s no wonder the databases are full of irrelevant information and reports targeting Muslims, South Asians, and Arab Americans. As you may remember from last year, actual SARs we obtained through Public Records Act requests include reports with subjects like “Suspicious ME [Middle Eastern] Males Buy Several Large Pallets of Water.” It’s also no wonder law enforcement experts criticize the SAR program for “flooding” law enforcement with “white noise.”
Today our clients are challenging a program through which innocuous and even constitutionally protected activity is being reported as “suspicious” and leading to federal law enforcement scrutiny. This program not only violates federal privacy protections for “intelligence” sharing. It encourages a culture of fear and distrust, undermining our freedom with no known benefit to our safety.
By Jay Stanley, Senior Policy Analyst, ACLU Speech, Privacy & Technology Project
Out for a run the other day along a stretch on a busy road, I saw a "for sale" sign on a house. That got me to wondering about the downsides of living on a busy road, and further wondering: do people who live on busy roads stay in their houses for shorter periods of time than people on quiet streets? Is real estate turnover higher on busy roads?
That should be an easy question to answer in today's big data world. You would just get a computer to sort houses by the amount of traffic on the street on which they sit (Google maps surely has that data), and then correlate it to the average time between sales of each house.
But then it occurred to me: who would actually perform the analysis to answer that question?
After all, if the answer to my question was yes, the real estate industry probably wouldn't particularly want that fact known, so it's not in their interest to explore that question. And I'm not sure who else would care to look into it.
This line of thinking is just a reminder of an important point: the exploration of data is not a neutral or unguided process. There's a lot of talk about big data these days and its potential to help humanity, but the seeking of insight and meaning and advantage from large-scale analytics will be directed at answers to the questions certain parties have an interest in asking. Where an especially interesting data set is open, we can imagine that many people will explore it, the “million eyeballs” principle will hold, and that the data space will be isometrically scrutinized in every possible way. That may be true for some data sets, but others may only be investigated by those with a particular interest in looking for something—and perhaps only by those with the means of hiring data scientists to look for answers. And in many other cases, where data is proprietary, the parties that have access to or control over the data will be the only ones asking the questions. In some cases, no doubt, even where questions are asked, the answers will never see the light of day if those who paid for the research don’t like what they get.
This dynamic will have implications not only for privacy, but for how big data is used across the board.
Let me be clear that I know little about the real estate industry, and my assumptions may be completely wrong in the specific line of thinking above that sparked this post. But I think the larger point is valid.
Others have sought to puncture utopian views of how big data will provide new knowledge and insight. In this interesting piece, for example, Tim Harford cites problems including the difference between causation and correlation and the fact that correlations can shift, sample bias in the data, high levels of false positives, and something called the “multiple-comparisons problem,” which essentially says that if you explore a large enough data set looking for enough correlations, you will eventually find one that is a spurious statistical quirk. I think what we might call “differential exploration” should be on any such list.
In some ways the problem I’m thinking about resembles problems we already see in other areas of science. Some have complained, for example, that our for-profit pharmaceutical industry tends to research medical conditions not in proportion to their importance, but instead according to their profitability. That can mean they target their research budgets towards treatments for minor but lucrative cosmetic problems rather than devastating diseases. It’s likely that the mining of big data sets for insights, like medical research, will not be carried out evenly, but will proceed on some fronts much more vigorously than others, and not necessarily according to criteria that are best for everyone.
By Laura W. Murphy, Director, ACLU Washington Legislative Office
The NSA and FBI are targeting prominent American Muslims, including civil rights activists, academics, and a former government official, we learned in a troubling report released last night.
Their emails have been stored, their movements have been monitored, and their relationships have been tracked. No detail has proved too remote for the prying eyes of the NSA and FBI.
None have been charged with any criminal or terrorist activity, and because of the excessive secrecy of the government’s surveillance laws, the government doesn’t have to explain itself. Anyone who reads the report can’t help but worry that the government is engaging in highly invasive and personal surveillance based on activism, religion, and political belief.
The story raises profound questions about the surveillance authorities of the government, including its ability to selectively target a political, ethnic, or religious group. In this case, it’s American Muslims. But we already know that the FBI is engaging in a much more expansive racial and ethnic mapping program that should worry us all.
We’ve been here before. In the 1960s and 70s, civil rights organizations, activists, and minority communities were surveilled and monitored simply because their views differed from the government’s. Constitutionally protected activity had become a shibboleth. What’s going on today is reminiscent of that time.
Innocent American Muslims and South Asian Americans have been repeatedly scrutinized and stigmatized ever since the September 11, 2001 terrorist attack. And since that time, racial profiling at the borders, the airports and in the criminal justice system has gotten worse for Latinos, Asians, African Americans, and other people of color.
The Council for American Islamic Relations, for example, is the largest Muslim civil rights organization in the United States. Why is Nihad Awad, their executive director who was profiled in the report, being monitored and tracked?
Discriminatory surveillance chills free speech, the right to associate freely, and religious expression.
An ACLU-led coalition has sent a letter to the Obama Administration asking for a full accounting of the practices revealed in the report. The letter also highlights the need to strengthen the Department of Justice’s Guidance Regarding the Use of Race by Federal Law Enforcement Agencies, so that profiling on the basis of religion, sexual orientation, gender identity, and national origin is conclusively prohibited.
The letter explains:
In an earlier era, during the 1960s and 1970s, civil rights leaders, activists and members of minority communities were subjected to unlawful and abusive government surveillance based not on what they had done, but what they believed and who they were. Despite reform efforts, abusive practices continue today. Federal, state, and local law enforcement are targeting entire communities—particularly American Muslims—for secret surveillance based on their race, religion, ethnicity or national origin.
The First Look report is troubling because it arises in this broader context of abuse. Documents obtained through an American Civil Liberties Union Freedom of Information Act request show that the FBI has been mapping a broad spectrum of communities, including American Muslim communities, the African American community and Latino American communities, without any basis for individualized suspicion. Under the guise of community outreach, the FBI targeted mosques and Muslim community organizations for intelligence gathering. It has pressured law-abiding American Muslims to become informants against their own communities, often in coercive circumstances. It has also stigmatized innocent Muslims by placing them on the No Fly List and other watch lists. In short, the government’s domestic counterterrorism policies treat entire minority communities as suspect, and American Muslims have borne the brunt of government suspicion, stigma and abuse.
These practices hurt not only American Muslims, but all communities that expect law enforcement to serve and protect America’s diverse population equally, without discrimination. They strike the bedrock of democracy: that no one should grow up fearful of law enforcement, scared to exercise the rights to freedom of speech, association and worship.
And you know what? I’m not okay with reaching acceptance.
So what if I’ve become my own version of Howard Beale. You and I both understand why: It’s because we know it's completely unacceptable that, with its decision, the Supreme Court has now sanctioned discrimination against women under the guise of religious liberty.
Thankfully, I’m not the only one who’s still angry.
Lawmakers who expressed their outrage the day of the Hobby Lobby decision have swiftly put their words to action to ensure that women have access to contraception. Today Sen. Patty Murray (D-Wash.) and Sen. Mark Udall (D-Colo.), along with 35 of their colleagues, introduced the Protect Women’s Health from Corporate Interference Act.
The bill aims to bar employers from using their religious beliefs to deny their employees and their dependents coverage for contraception or any other health service guaranteed by federal law. Just in case employers try to wiggle their way out of this requirement, the bill states that federal law, including the Religious Freedom Restoration Act, doesn’t permit employers to refuse to comply. Here’s something else important to stress: This requirement still doesn’t apply to houses of worship and religiously affiliated non-profits.
Get angry – as if you’re not already – and tell Congress to quickly pass the Protect Women’s Health from Corporate Interference Act. Let them know that while we all have the right to our religious beliefs, we don’t have the right to impose those beliefs on others.
By Chandra Bhatnagar, Senior Staff Attorney, ACLU Human Rights Program
Imagine the government taking away your two children in a hearing that lasts less than 60 seconds.
Madonna Pappan and her husband, members of the Oglala Sioux Tribe in South Dakota, don’t have to imagine it, because it happened to them. And they’re not alone: An American Indian child in South Dakota is 11 times more likely to be sent to foster care than a non-Indian child.
Imagine receiving a life sentence without the possibility of parole for serving as a go-between in the sale of two small $5 bags of marijuana. That’s exactly what happened to Fate Vincent Winslow, an African American homeless man who says that he accepted the offer of an undercover police officer for a $5 commission in order to earn some money to get something to eat. Mr. Winslow is now serving a life sentence, without the possibility of parole, in Louisiana for this and his other prior non-violent crimes. In that state, African Americans are serving life without parole sentences for nonviolent crimes at approximately 23 times the rate of whites. Nationwide, an estimated 65.4 percent of the prisoners serving such sentences are African American.
These are but two examples of the widespread racial disparities that continue to exist in the United States, and which result in serious and pervasive human rights violations in a wide range of areas, from racial profiling to voting rights.
Next month, the U.S. record on eliminating racial discrimination will fall under international scrutiny. On August 13 and 15 in Geneva, the United States will undergo a review of its compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the most important anti-discrimination legal instrument in the world, which the United States ratified in 1994.
At the review, a high level U.S. government delegation will officially present a report submitted by the United States in June 2013 on its ICERD compliance, and answer questions on progress made and challenges remaining towards implementation of the treaty. Following this examination, the United Nations Committee on the Elimination of Racial Discrimination will issue a report on its findings, identifying major areas of concern and incorporating recommendations on how the U.S. government might better implement the treaty.
To help inform the review, the ACLU submitted a report today to the U.N. committee, highlighting several examples of pervasive and institutionalized discrimination in the United States. It addresses the following issues:
- Racial Profiling
- Racial Disparities in Sentencing
- Racial Discrimination in the United States Capital Punishment System
- The Right to Vote
- Discriminatory Treatment of Guestworkers and Undocumented Migrant Workers
- Predatory Lending and the Foreclosure Crisis
- Lack of Due Process in American Indian Child Custody Proceedings in South Dakota
While the U.S. report acknowledges that racial discrimination persists, it fails to provide a full picture of the state of discrimination and inequality. Nor does it address the pressing need for a national plan of action to end all forms of racial discrimination, the likes of which many other countries have already created.
It’s been 50 years since the passage of the Civil Rights Act, and 20 since the ratification of the ICERD. In many respects, we’ve come a long way. But we’re not finished. Let’s hope the Obama administration views the upcoming review as an opportunity to move us forward.
By Sandra Hernandez, ACLU of Southern California
Eleven-year-old Luisa was too young to apply on her own for a visa to come from Guatemala to the United States where she hoped to be reunited with her mother. But since federal immigration authorities detained her last year in Texas, Luisa has learned that she is apparently not too young to act as her own lawyer as federal immigration officials move to deport her back to her native Guatemala.
During a recent hearing in a downtown Los Angeles courtroom, Luisa and more than two dozen other children crowded into a small room where the U.S. government has begun deportation hearings against them. Some sat quietly, feet dangling from benches. Others, who spoke indigenous languages and understood little Spanish, looked nervously around struggling to understand the proceedings.
Judge Frank M. Travieso urged the children to find pro bono attorneys to help them. Without legal help, he cautioned, they faced an uphill battle. He pulled out a thick black book from behind the bench and informed the children that the book is one of many volumes of immigration case law that a government attorney will rely on to seek their deportation.
Unfortunately for those children, many will not find an immigration attorney, no matter how hard they try. Unlike in criminal cases, where defendants are provided a lawyer to ensure they receive a fair trial, children are not given a lawyer during their deportation cases, even though in some cases the outcome can be tantamount to a death sentence thousands of children face deportation proceedings without any legal representation. Many have made the treacherous journey alone to the United States – from El Salvador, Guatemala, and Honduras – and are then pushed to undertake another dangerous odyssey through America’s immigration courts. Others have lived here since they were babies, but they also lack the money needed to obtain an immigration attorney.
The kids are expected to mount their own defense, by presenting supporting evidence and arguments to make their case, even though many are too young to read or write, and others are still struggling to overcome the trauma they suffered in their home countries or the journey north. And it doesn’t end there. Prosecutors trained in the complexities of U.S. immigration law and armed with all the resources of the federal government will try to persuade a judge to deport the children.
These children facing life or death consequences in immigration court shouldn’t suffer because there are not enough volunteer attorneys to ensure they receive a fair hearing in court. That’s why the ACLU, along with a coalition of organizations, today filed a federal lawsuit in Washington State to ensure that these children, the most vulnerable immigrants, receive legal representation in court.
A 2011 report from a panel headed by a federal judge found that immigrants with lawyers are five times more likely to win their cases than those who represent themselves. And a recent report by the Office of the U.N. High Commissioner for Refugees concluded that nearly 60 percent of children arriving from Mexico and Central America qualify for some sort of humanitarian protection under international law. The Obama administration has sought to address the crisis at the border and in the courtroom by unveiling a new program that will provide some additional attorneys, while also pushing to fast-track deportations of children.
While not all of these children likely have a legal right to remain here, they all deserve due process and legal representation in court.
By Layla Razavi, Regional Advocacy and Policy Counsel, ACLU
This past weekend's Fourth of July holiday made me nostalgic for the Independence Day celebrations of my childhood.
My parents are immigrants from Iran, and the Fourth was a big deal. We would barbeque kabob and rice at the beach in San Diego and watch the fireworks, lying side-by-side on the grass. It was celebration of freedom in the county that had welcomed my parents when they needed refuge. They were graduate students here in 1978 when violence broke out in their homeland, and my grandparents begged them not to return. Many of their friends were killed or disappeared; others sought asylum in Europe.
The phenomenon of people fleeing violence and parents making hard choices to protect their kids is nothing new. That is the exact dynamic that is playing out at our Southwest border today. The arrival of tens of thousands of young migrant children, many of them travelling alone, mirrors the escalating violence in their Central American homelands. El Salvador, Honduras, and Guatemala are among the countries with the five highest murder rates in the world. So it's no accident that since last October alone some 52,000 unaccompanied children have arrived in the United States, mostly from Central America, according to the government.
How we as a country choose to deal with this humanitarian crisis says a lot about our values and who we are as a people. There are no simple solutions, but the hostile response by some in the small community of Murrieta last week isn't one that should be repeated. Federal officials flew 136 of the detained migrants who had been apprehended at the Texas border to San Diego, where they were put on a bus to a border patrol facility in Murrieta for processing. A throng of angry local residents waited outside the facility, holding disparaging signs, telling the migrants to go home. But by the week's end, protesters spewing hate were outnumbered by others who had come to show support for the migrants.
The actions of extremists should not overshadow the humane response of most Americans, who have offered the kind of welcome my parents received. Faith groups and community organizations in San Diego and around the country have jumped at the opportunity to help the unaccompanied child migrants by donating time, services, and basics necessities like clothes, diapers, and food.
Children of immigrants often speak of winning the birth lottery because we know how randomly lucky we are to live here. But for the children fleeing Central America right now, this crisis is not like playing the lottery; it's more like Russian roulette.
There are the kids who will end up dying in the desert from heat and exhaustion. There are those who are stranded alone in a Mexican shelter because they were turned away at the U.S. border. Others are housed for weeks in Border Patrol holding facilities, sleeping on crowded floors, shoulder to shoulder. Many will be put on a plane and deported right back to the country they fled in fear of violence and persecution.
Let's remember that the United States has a system in place to ensure that every child arriving on our shores can ask for asylum or otherwise seek protection. The government should not pervert that system for the sake of expediency, nor should it shrink the protections available to these young migrants, as it seems to want to do. Massive deportation of children is not in the American tradition.
In honor of the Fourth of July we just celebrated, the holiday of freedom, kabobs, and fireworks, let us not push away children who didn't win the "birth lottery" without at least giving them a chance to make their case.
What the Bears’ Brandon Marshall’s Struggles With Mental Illness Teach Us About the Criminal Justice System
In a recent article in ESPN the Magazine, Chicago Bears All-Pro Wide Receiver Brandon Marshall admitted that in 2011 he was diagnosed with Borderline Personality Disorder.
Marshall was diagnosed after being hospitalized following a domestic incident. This was not the first time Mr. Marshall had trouble with the law. Since 2009, Mr. Marshall had been involved in seven other alleged cases of domestic violence. According to the National Institute of Mental Health, Borderline Personality Disorder is a serious mental illness marked by unstable moods, behavior, and relationships.
Up to this point, Marshall’s story is not unique. Many people struggling with mental illness come into contact with the criminal justice system. For some with support and strong mental health insurance coverage, treatment and recovery are real possibilities. Marshall admits that were it not for an intervention by his agent and assistant, he would have walked away from therapy in 2011 before he was diagnosed.
But for those less fortunate, the story too often ends with prolonged and largely unnecessary correctional control. Here’s why: Our public mental health system is in “disarray,” according to the book “The Shame of Our Prisons: New Evidence.”
Approximately 2.2 million people with serious mental illnesses do not receive treatment. As a result of public hospital closures during the 1980s, our country has fewer than 150,000 beds for patients with serious mental illness. Left with no other place to go and no viable option for treatment, the reality for many of these individuals is that when they commit crimes influenced by mental illness, they are arrested and incarcerated.
This lack of a public mental health system means that prisons and jails often function as de facto treatment centers. Just one example: Chicago’s Cook County jail is the largest provider of mental health services in the country.
It makes sense, then, that a large percentage of people behind bars are struggling with mental illness. Approximately 36.6 percent of prisoners and 43.7 percent of persons in jail report having been diagnosed by a mental health professional with “a depressive disorder, schizophrenia or another psychotic disorder, post-traumatic stress disorder, or anxiety or another personality disorder,” according to the most recent version of the National Inmate Survey. Compounding the problem is that mental health care in many prisons and jails is, at best, substandard, and, at worst, non-existent.
“The Shame of Our Prisons” argues that “far from serving as therapeutic environments, [prisons and jails] are too often places of trauma and abuse where the strong prey on the vulnerable.” According to a recent article in the New York Times regarding the East Mississippi Correctional Facility, which is currently the subject of a lawsuit filed by the ACLU and the Southern Poverty Law Center, mental health exams of prisoners are sometimes conducted while prisoners are asleep, and “self-injurious behaviors like cutting are a daily occurrence.”
Since his diagnosis, Mr. Marshall has taken some positive steps. In 2012, he taped a public service announcement for the National Education Alliance for Borderline Personality Disorder, spoke at the organization’s national conference, founded an organization to educate the public about BPD, and lobbied Congress in favor of legislation that would provide mental health services to children.
The progress Mr. Marshall has made in his life, as well as his efforts to educate the broader public about serious mental illness, are commendable. His story should serve as a reminder, however, that those with means are often better able to avoid the unfortunate reality of receiving mental health “treatment” from a correctional system that is ill equipped to provide it.
To truly treat mental illness, we need to invest the resources necessary to prevent those less fortunate from ensnarement in the criminal justice system in the first place.
By Sarah Harrison, Washington Legislative Office
Earlier this year, the chairman of the Federal Communications Commission, Tom Wheeler, abruptly abandoned a survey of Americans’ media information needs, which, despite its modest scope, would have provided crucial data for the FCC in its efforts to maintain viewpoint diversity in our increasingly concentrated media markets.
Ironically, Wheeler did so in the face of accusations the FCC was assaulting the First Amendment and press freedoms when, in fact, the study would have helped enhance free expression. Critics argued that, as Republican FCC Commissioner Ajit Pai wrote in a Wall Street Journal op-ed, the study was “an initiative to thrust the federal government into newsrooms across the country.”
Unfortunately, despite Chairman Wheeler’s (premature) withdrawal of the initiative, the brickbats continue.
The House Committee on Oversight and Government Reform now plans to take time, tax dollars, and focus away from the real problems facing our country and government by launching a formal inquiry into the Wheeler study.
Chairman Darrell Issa’s (R-CA) letter to the chairman announcing the inquiry previews the tenor of this “investigation.” The Wheeler study, Rep. Issa said, is emblematic of an “ongoing assault on the Constitution by the Obama Administration.” The study “was not an innocent inquiry” and is “disconcerting in light of the current Administration’s continuing efforts to silence the constitutionally protected speech of its opposition.”
Such language suggests that perhaps the Chairman’s views have been colored by his view of other administration actions and may not be entering into the “investigation” with a completely open mind.
It’s crucial to understand what we’re talking about here. The survey, known as the Critical Information Needs study (“CIN”), would have assisted the FCC in identifying barriers to entry in the communications marketplace, especially for minority and female owners, which the FCC is obliged by law to do.
It also would have included a section surveying minority and female media consumers to evaluate whether their information needs are being met, including things like access to emergency information in a hurricane.
Some, however, pounced on the study as a direct assault on the First Amendment. In addition to Commissioner Pai’s op-ed in the Wall Street Journal, some Congressional Republicans called the study the first step on the road to a “news police.” Rep. Greg Walden (R-OR), chairman of the powerful House Energy and Commerce Committee, vowed to block the CIN study.
Were there a legitimate First Amendment concern with the CIN study, the ACLU would be the first to object (it’s not like we love FCC content regulation). We caution the Congressional committee charged with eliminating government waste, however, not to waste scarce taxpayer resources on an “investigation” into a harmless, and actually helpful, government fact-finding exercise.
There are seven billion people in the world, and 95 percent of them live outside the United States. We know from dozens of revelations from the last year that few, if any, are immune from the watchful eyes of the National Security Agency.
Yet in its latest report on surveillance, the government’s independent Privacy and Civil Liberties Oversight Board focused almost exclusively on the rights of people inside the United States. Here are five reasons why the PCLOB should have defended the rights to privacy and free expression for everyone – including the 95 percent:
- Privacy is a human right. As President Obama has recognized, privacy is not just guaranteed by the U.S. Constitution, it is a basic human right of everyone around the world. In ratifying the International Covenant on Civil and Political Rights, the U.S. government assumed legally binding obligations to protect this right. In failing to defend it and articulate legally defined limitations on global spying, the PCLOB abdicated a core responsibility.
- Our government claims authority for surveillance “concerning” nearly every country on Earth. This week the Washington Post reported that the National Security Agency sought authority to intercept information “concerning” 193 countries — every country in the world but the “Five Eyes” of Britain, Canada, Australia and New Zealand. The Foreign Intelligence Surveillance Court, which operates with excessive secrecy, signed off. Ignoring U.S. international obligations to protect privacy rights, the Privacy Board has given a green light to the NSA to continue conducting surveillance that implicates nearly the entire world.
- Almost any person outside the U.S. could potentially be targeted based on “foreign intelligence” value. Section 702 of the FISA Amendments Act, which the Privacy Board reviewed in its new report, authorizes the “targeting” of non-U.S. citizens or residents reasonably believed to be located outside the U.S .for “foreign intelligence” purposes. But the government’s definition of “foreign intelligence” sweeps so broadly that it potentially encompasses the communications of vast numbers of non-citizens. That could include communications of many, not just persons it considers foreign agents, engaging in criminal activity, or connected, even remotely, with terrorist activities.
- The internet should be free – for everyone. The government’s powerful surveillance apparatus, coupled with its expansive claims of authority for global surveillance, threatens the way all of us use and view the internet. When people know that they may be under watch, they act differently. Online freedom of expression – ironically a “foreign policy priority” for the United States – becomes stifled. Worse still, the U.S. government could share the millions of emails, Gchats and Skype calls it collects with foreign governments, putting at risk journalists, human rights activists and dissenters worldwide who face persecution from their home governments based on their beliefs and the views they express online.
- The world is watching. In its report, the PCLOB described “spirited debate” at the international level over the right to privacy. Indeed, lawyers and activists around the world are seeking to hold their governments accountable for surveillance activities that we knew little about until Edward Snowden’s revelations. (This “spirited debate,” for example, is what led the German government to say it would end its contract with Verizon.) The PCLOB should be a leading voice in this international debate, not a member of the audience. Though PCLOB suggested it would address the issue more in its future report on Presidential Policy Directive-28 — including the President’s direction to sync up some protections for citizens and non-citizens, to the extent feasible – human rights protections are not a matter of policy. They are binding law. In the meantime, PCLOB has squandered a valuable opportunity to encourage a U.S. government approach to surveillance that respects the human right to privacy. That, in turn, would have positively influenced global trends on these issues at a critical juncture.
The United States has been a world leader in promoting and developing the internet. Now it’s time to lead the world and ensure the internet remains safe and free.