Why the previous post matters

The New York Times reported on Monday that the FBI is giving itself additional powers to poke, prod, pry, and probe into our privacy.

The agency is re-writing portions of its field operations manual in what it falsely claims is a mere "fine-tuning of existing rules" but actually is a clear expansion of power.

Here's the background: In 2008, the FBI gave itself a new power to "proactively" investigate people and organizations even in the absence of any suspicion of wrongdoing. That is, even if there was no reason to think the person or group had done anything wrong or was planning to do anything wrong, the FBI could investigate them. In effect, the FBI could investigate you for the purpose of seeing if it should investigate you. This was called something along the lines of "improving national security in a time of international terrorism." Previously, it would have been called "a fishing expedition." Or perhaps "official paranoia."

(Sidebar: The changes were made in secret and emerged only a year later as the result of an FOIA suit.)

Anyway, the way the federales got that "proactive" power was by creating a wholly new category of investigation called an "assessment." An assessment, again, required no evidence, no suspicion, that there was anything illegal going on.

As an example how this worked,

[a]fter a Somali-American teenager from Minneapolis committed a suicide bombing in Africa in October 2008, the Federal Bureau of Investigation began investigating whether a Somali Islamist group had recruited him on United States soil.

Instead of collecting information only on people about whom they had a tip or links to the teenager, agents fanned out to scrutinize Somali communities, including in Seattle and Columbus, Ohio.

That is, simply being a Somali-American required that you be "assessed" just to see if you might be some sort of threat, even if there was no hint that you had any connection with that teenager. Or anything else illegal, for that matter.

You'd think that sort of thing, of being able to investigate without any evidence of wrongdoing, was bad enough, but of course it wasn't enough for the feds. So now comes the "fine-tuning." For one thing,

[u]nder current rules, agents must open an assessment before they may search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without opening an assessment.

That is, they can do such searches without there ever being a record of it having been done. It's entirely secret.

That's not the only "fine-tuning" going on. For example, under current rules individuals or groups under "assessment" can be physically surveilled only once for a certain period of time. Under the new rules, that period of time can be renewed repeatedly by a supervisor. Bear in mind here that an "assessment" can be kept open - and thus the surveillance can continue - indefinitely.

The use of lie-detector tests, now blocked until a "preliminary investigation," which requires a factual basis for suspected wrongdoing, is begun, will under the new rules be used in assessments and not just on someone being assessed, but on potential informants. More seriously to my mind, the trash of such potential informants would be subject to search by agents - because the feds want to be able to use information found that way to pressure the person to assist the government's investigation. That is, they want to be able to use surreptitiously-gathered information to force someone to spy on their behalf. This is called "protecting our freedom." In another context, one with only the slightest of differences, it would be called blackmail.

There are now rules governing agents' or informants' attendance at meetings of, and secret participation in, organizations on which the feds are gathering information. Those rules are not public. Under the new rules, those agents or informants can attend five meetings even before the secret rules apply.

Finally, some investigations, including those into public officials, members of the media, and scholars, are considered "sensitive" and call for additional oversight. Under the new rules, much of that oversight is being relaxed; for one example, the rules on academic protections will apply only to scholars who work for institutions based in the US. All you furriners, you is outta luck.

This is what FBI general counsel Valerie Caproni called mere "fine-tuning" but which Mike German, National Security Policy Counsel for the ACLU, called "an expansion of power that is completely unaccountable."

The bizarre thing here is that Caproni may indeed think of the changes the way she described them: Remember that one of the conclusions to be drawn from the work of psychologists Joris Lammers and Adam Galinsky is that "people with power ... feel at some intuitive level that they are entitled to take what they want" - in this case, taking more power, a freer hand to find out whatever they want to find out, to know about you whatever they want to know about you, and to do it behind a thicker wall of secrecy: remember the new power to conduct databases searches without any record of it.

That, too, that pattern of "we can know about you but you can't know about us," is regarded as "natural" by power. Several years ago, commenting on the use of tracking technologies by private companies and individuals, I wrote this:

Are the children going to be able to track the parents? Are the employees going to be able to track the boss? Will the public be tracking government agents or Starbucks executives?

Of course not. It seems silly even to ask. ... This is not about protection or accountability, it's about power. Establishing, using, extending, demonstrating power. Whether it's the direct intimidating power of "they know I'm watching" or the more subtle power of "I can catch them at something," both of which assume those being watched are untrustworthy (which is what the watchers always assume about the watched), it is something those with power put on those without it ... [including] ... the power of voyeurism, the power of "I can know your secrets."

Oh, but don't worry your pretty little heads about things like that, Ms. Caproni says. Agents, she assures us with the straightest of faces, could only retain the results of those secret database searches if there is a legitimate law enforcement purpose for doing so.

In other words, "Trust us."

Well, I first encountered the name Valerie Caproni in late 2005 in a post about the alarming increase in the use of so-called National Security Letters, legal documents by which the FBI can demand secret access to a variety of someone's personal and financial records from places such as banks, credit card companies, phone companies, ISPs, and so on without the need for any sort of warrant. At the time, she dismissed concerns about possible overreach and violations of privacy, arguing there really wasn't a point to the agency engaging in either. That is, "Trust us."

This came just 15 months before the DOJ's own Inspector General revealed that there were "many instances" of the FBI having "improperly, and sometimes illegally, used" NSLs to obtain information.

Moreover, record keeping was so slipshod, the report found, that the actual number of national security letters exercised was often understated when the bureau reported on them to Congress, as required.

I next came across her name last fall in considering PHC*'s intention to push for legislation that would force communications services including encrypted e-mail transmitters like BlackBerry, social networking Web sites like Facebook, and software that allows direct “peer to peer” messaging like Skype to provide convenient means for the feds to engage in electronic surveillance of their users - including decrypting data - that the telcoms are currently required to provide.

Of that move, Caproni said "We're talking about lawfully authorized intercepts ... We're not talking expanding authority." I responded at the time:

You're talking about being able to force companies to do what they didn't before, to have cop-friendly capabilities they didn't before, in order to enable you to wiretap where you couldn't before, spy where you couldn't before, to get data (including messages in decrypted form) that you couldn't before. Yes, you are talking about expanding authority, Ms. Caproni, and you are a liar.

And now, here again, comes Valerie Caproni, mouthpiece to power, to declare there is no reason for concern, to assure us that information gathered in secret database searches will not be kept unless there is a damn good reason. That is, yet again, "Trust us."

And just why should we do that, Valerie "Two-time loser" Caproni? Why, in light of your record, should we simply take your word for it that the agency for who you make excuses will not secretly retain secretly-obtained information? How can we even know if you did dispose of that information when there is no record that you ever obtained it in the first place?

In fact, we should not. We dare not. Not only because you are a two-time loser, but on the general, vitally-important, but too-often overlooked civic principle that in any free society, in any society that hopes to be free or to remain free, in any free society it is bad public policy, it is incredibly bad public policy, it is insanely bad public policy, to give anyone, particularly government, particularly police forces, additional powers under the totally lame-brained assumption that they will never abuse them.

All of history, all of human experience, screams as us that that is just an absolutely nutty, crazy, wacko, stupid, dangerous thing to do.

Why? For the same reason that back in the '60s we said "Question Authority."

Because power corrupts.

*PHC = President Hopey-Changey