Shhh! Part 3

Updated Privacy. How long before it's an alien concept, a quaint reminder of "simpler" times? I'm sure a lot of us recall the descriptions in 1984 of the cameras in every room, watching people all the time - or at least reminding them that they might be being watched, they never knew. Now such cameras, while not (yet) in our homes, surround us. We are recorded at the bank, tracked in the supermarket, scanned as we pass by corporate offices, scrutinized at government facilities. We are observed, measured, tabulated, indexed, and filed.

All the while being told the audacious lie that it's for our own benefit. No, it's not for our benefit at all. So over these few days, several items about some aspect of privacy. Who has it and who doesn't.

On Tuesday, I noted some evidence that corporate America holds that its interest in profit outweighs our interest in privacy. Today, just a few reminders that even less are we supposed to have privacy in the face of the desires of government America.

Of course, the wholesale, court-approved violations of the 4th Amendment during the DNC should be enough evidence of the government's point of view, but if that's excused on the grounds of "special circumstances," the declared intention of the Boston police to continue "random" suspicionless searches just on general principles should serve in its stead.

And then there is always the TRAITOR Act, which allows unprecedented secret government intrusions into our lives. There are those who are trying to limit the worst of its excesses, but in this area even having the votes is not enough.

Washington (AP, July 8) - The Republican-led House bowed to a White House veto threat Thursday and stood by the USA Patriot Act, defeating an effort to block the part of the anti-terrorism law that helps the government investigate people's reading habits.

The effort to defy Bush and bridle the law's powers lost by 210-210, with a majority needed to prevail. The amendment appeared on its way to victory as the roll call's normal 15-minute time limit expired, but GOP leaders kept the vote open for 23 more minutes as they persuaded about 10 Republicans who initially supported the provision to change their votes.

"Shame, shame, shame," Democrats chanted as the minutes passed and votes were switched. The tactic was reminiscent of last year's House passage of the Medicare overhaul measure, when GOP leaders held the vote open for an extra three hours until they got the votes they needed.

"You win some, and some get stolen," Rep. C.L. Butch Otter, R-Idaho, a sponsor of the defeated provision and one of Congress' more conservative members, told a reporter.

The provision would have undone a section of the law that lets authorities get special court orders requiring book dealers, libraries and others to surrender records such as purchases and Internet sites visited on a library computer while at the same time barring those institutions and stores from letting customers know their records have been accessed. The warrants are issued under intelligence rules, which do not require evidence of illegal activity and thus are much easier to obtain than traditional search warrants, which is of course why the White House wants it this way.

Last July, Otter succeeded in getting the House to block so-called "sneak and peek" searches but the provision was dumped in conference. He tried again this year but got ruled out of order.

The real reason for this devotion to the Act surely can't be any demonstrable successes in fighting terrorism.

"Regarding civil liberties, the 9/11 Commission report essentially says that the Justice Department and White House have not made a compelling case for either the administration’s obsession with secrecy or its Patriot Act," said Anthony D. Romero, ACLU Executive Director [in a press release on July 22]. "This bipartisan report should serve as a wake-up call for Congress that it must maintain the sunsets in the Patriot Act."

As the report states on page 394, "The burden of proof for retaining a particular governmental power should be on the executive, to explain (a) that the power actually materially enhances security and (b) that there is adequate supervision of the executive’s use of the powers to ensure protection of civil liberties. If the power is granted, there must be adequate guidelines and oversight to properly confine its use." ...

Notably, the commission does not recommend that any sunseted provisions should be made permanent.

Some of us knew that all along. I wrote the following to my Senators on October 14, 2001:

"I believe there are more instances of abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation." - James Madison, 1778

As I'm sure you're aware, in addition to some completely noncontroversial commonsense actions the version of the so-called "Anti-terrorism" act recently passed by the Senate contains several provisions that raise concerns about civil liberties. Sifting through all the pronouncements leading up to the final vote (I do not use the term "debate" because it was much too one-sided and much too rushed to deserve the description) I find nothing in those provisions that leads me to believe that had the bill been in force earlier that the events of September 11 would not have happened. That is, not one such provision has been able to withstand the simple question "Would this have made any difference?"

The fact is, in the weeks since September 11, it's become clear that as a security matter, the attacks didn't happen because of a lack of police powers or security provisions but because of a failure to use those that already existed. Adding more such powers, more authority to invade our privacy, restrict our freedoms, track our movements, more ability to substitute suspicion for proof - all while reducing judicial oversight - only creates more opportunities for official abuse. Despite the hypnotic mantra about "improving our security while protecting our liberties" this bill is nothing more than one of Madison's "gradual encroachments."

(I've quoted a passage from this letter I think twice before, the more recent occasion being July 23.)

If not effective protection or prevention, then what's the point? Fishing expeditions. Probing. Watching. The drive to control dissent by being able to "watch" enough to at least make people think they're being watched all the time by reminding some that they have been. From the Rocky Mountain News (Denver, CO) for July 24:

Law enforcement officers visited several Denver young people Thursday to warn them against committing violence at the Democratic and Republican national conventions.

"This is part of an ongoing FBI investigation with the Joint Terrorism Task Force," Colorado FBI spokeswoman Monique Kelson said Friday. "That's all that we can comment right now." ...

Mark Silverstein, legal director of the American Civil Liberties Union in Colorado, said young people living at two locations in Denver reported the visits to the ACLU and that similar visits have occurred elsewhere in the United States in recent days.

He said officers told the Denver young people that they were visiting "protesters and anarchists."

"It's an abuse of power, designed to intimidate these kids from exercising their constitutional right to protest government policies and associate with others who want to protest government policies," Silverstein said.

It's almost become a cliche that it's unlikely that there is anyone who does not harbor some secret that they would not wish to be broadcast to the world. It may not be criminal, just embarrassing, but it's still something we desire to keep to ourselves. As Billy Joel put it in "The Stranger,"

Well, we all have a face that we hide away forever
And we take them out and show ourselves when everyone has gone.

It's also a truism that the more someone knows about you, the more they can find out. The greater the ability of the government to examine who we are, where we work, who we associate with, what we read, what we buy, our credit and medical histories (we're back to the issue of social security numbers again), the list grows continuously, it seems, the more we may feel - or actively be - intimidated into keeping our unpopular or dissenting opinions to ourselves for fear of the consequences of doing otherwise.

Naturally, such watching is not limited to, and may not even be primarily on, individuals. Tracking ethnic groups is pretty much a snap. Dateline, July 30, the Electronic Privacy Information Center:

EPIC has obtained documents revealing that the Census Bureau provided the Department of Homeland Security statistical data on people who identified themselves on the 2000 census as being of Arab ancestry. The special tabulations were prepared specifically for the law enforcement agency. There is no indication that the Department of Homeland Security requested similar information about any other ethnic groups. The tabulations apparently include information about United States citizens, as well as individuals of Arab descent whose families have lived in the United States for generations.

When questioned, the Department of the Security of the Fatherland gave the Census Bureau the lame excuse that it was trying to decide what languages should be included on signs at international airports. The tiny facts that 1)this ethnic data is useless to that end since it's reasonable to assume that most of these people speak American English and 2)if determining in what languages signs at airports should be really is their intent what they should be curious about is how many non-English-speaking Arabs fly into the US seem to have escaped their pointed little heads.

Even outside of events with such obvious political overtones, Madison's gradual encroachments show themselves, pecking away at privacy.

Washington, Aug 3 (Reuters) - U.S. regulators should make auto manufacturers equip all new vehicles with data recorders to give authorities better information when they probe accidents, safety investigators recommended on Tuesday.

Yes, of course. It's always in the service of "better government" and "public benefit." It's for our own good that our cars should be fitted with devices that keep track of what we do as we drive. Devices that can be used to prosecute us in the event of an accident. Devices that many of us already have in our cars and don't even know it.

Privacy advocate David Sobel said millions of drivers on the road now have no idea that their vehicles are collecting data[, CNN reported on Wednesday].

"They certainly don't know what's being collected, how long it's being retained and who can get access to it under what circumstances," said Sobel, general counsel for the Electronic Privacy Information Center. ...

The highway safety agency says between 65 percent and 90 percent of 2004 vehicles have some sort of recording ability. About 15 percent of vehicles have data recorders.

(I had an earlier post about these devices on March 11.)

The National Transportation Safety Board made the recommendation but can't issue regulations; that would be up to the National Highway Traffic Safety Administration. The NHTSA says it sees no need for such a requirement because car manufacturers are doing it voluntarily - usually without telling buyers.

Different models collect different amounts of data. Some record nothing more than how fast a vehicle sped up or slowed down, while others collect a range of information about the driver's actions and the condition of a vehicle's mechanical systems.

While that's apparently good enough for the moment, it won't be for long: NHTSA has

proposed that by 2008 the auto industry should outfit their vehicles voluntarily with recorders that would collect 42 pieces of accident data, including speed, braking, seat belt use and the time required for air bags to deploy.

Now, many of these devices at present typically only record for about five seconds and then start over, which means that any data collected would only describe those seconds immediately before an accident. But that's only a matter of memory capacity. It would be simplicity itself to allow the devices to be expanded to record minutes, hours, days of driving data. It's only a matter of cost, not technology. Something else that would be only a matter of cost would be the inclusion of a GPS system that would allow the car to be tracked. (As increasing numbers of us now can be via our cellphones.) As costs come down, why shouldn't that be required as well? After all, it's for public safety. For your own good. How can you possibly object?

And how can you possibly object to protecting our future safety as a nation by having the ability to securely identify almost everyone with what the ACLU called "the backdoor creation of national ID cards in the form of a standardized drivers licenses," as proposed by the 9/11 Commission? Whose side are you on, anyway?

In fact, the next step beyond is already being given serious consideration, as this item from the St. Catharines (Ontario) Standard from last month notes (link via Information Clearinghouse):

An influential organization representing U.S. and Canadian drivers' licence bureaus is developing a proposal for a de facto North American identity card: a biometric licence for 300 million people that could be fed through law enforcement databases to nab holders of multiple forged licences.

Such a card would require the creation of the largest database of biometric data in the world — potentially to include digital images of a person’s face or eye, or electronic fingerprints.

So just think: You could be completely safe and secure, knowing you can be tracked, monitored, and recorded at any moment in Canada as well!

So at what point do Orwell's cameras in the walls become, in the favorite phrase of privacy-shredding courts, a "minimal intrusion?"

Footnote, We All Screw Up Sometimes Dept.: On July 31, the New York Times reported that

[t]he American Civil Liberties Union is in turmoil over a promise it made to the government that it would not knowingly hire people whose names appear on watch lists of suspected supporters of terrorism. Those lists are the very type it has strongly opposed in other contexts. ...

The group made the promise not to employ people it knew to be on similar terrorism lists so that it could continue participating in a program that allows federal employees to make charitable contributions through payroll deductions.

ACLU Executive Director Anthony Romero said he had printed out the lists but "I've never consulted them." In fact, he said, he'd taken care not to know the names so the group could honestly say it never "knowingly" hired anyone on the hit - er, watch - lists.

That wasn't good enough for a number of people on the ACLU board and it lead to a contentious meeting in which the decision was ultimately made to support Romero's action.

I find agreeing to such a requirement distasteful in the extreme and ethically unacceptable. I also believe the requirement to be an unconstitutional infringement of political free speech and association because it encourages employment discrimination based on suspicion - not even proof, but mere suspicion - of support for what the government defines as terrorism.

Yes, yes, I know that the answer will come back "well, you don't have to participate, you're doing it of your own free will." Except that 1)the party being affected (the person looking for a job) is not the one making the decision to participate in the program and 2)free will or not, it still is in effect offering groups money - access to donations - in exchange for their agreement to practice discrimination in employment.

At the same time, I have to admit that I'm not completely sure how I would have voted had I been on the ACLU board: Romero was in effect going "nyah, nyah" to the feds and that might have been too sweet to pass up.

In any event, if it wasn't good enough for some ACLU'ers, neither was it good enough for the feds.

Mara T. Patermaster, the director of the charity program, ... said that ignoring the information on the lists was unacceptable and no defense.

"We expect that the charities will take affirmative action to make sure they are not supporting terrorist activities," she said. "That would specifically include inspecting the lists. To just sign a certification without corroboration would be a false certification."

In response, Romero issued a statement the next day declaring

Let me be clear. The ACLU will not be intimidated. We will not compromise. We will never check any of our employees against a government list. And we absolutely will not accept any funding that undermines or threatens our principles or our mission. ...

The ACLU will resign from the CFC rather than accept its terms that violate our fundamental principles.

Romero added that the organization is considering the best course to challenge the restrictions in court. Better a delayed reaction than none.

And the whole thing was perhaps worth it just for the experience of having a Shrub official demand "affirmative action."

Updated to include the Footnote.