No Comment — December 21, 2010, 11:05 am

Expanding the Surveillance State

Dana Priest and William Arkin continue their “Top-Secret America” series with a review of our government’s penchant for storing more and more information about its citizens. Some of the high points from their piece:

  • Technologies and techniques honed for use on the battlefields of Iraq and Afghanistan have migrated into the hands of law enforcement agencies in America.

  • The FBI is building a database with the names and certain personal information, such as employment history, of thousands of U.S. citizens and residents whom a local police officer or a fellow citizen believed to be acting suspiciously. It is accessible to an increasing number of local law enforcement and military criminal investigators, increasing concerns that it could somehow end up in the public domain.

  • Seeking to learn more about Islam and terrorism, some law enforcement agencies have hired as trainers self-described experts whose extremist views on Islam and terrorism are considered inaccurate and counterproductive by the FBI and U.S. intelligence agencies.

  • The Department of Homeland Security sends its state and local partners intelligence reports with little meaningful guidance, and state reports have sometimes inappropriately reported on lawful meetings.

Apart from the civil rights concerns that attend such a massive government effort to profile its citizenry, there is no doubt that the database the government is assembling could be used for a variety of legitimate criminal justice purposes, including counterterrorism. In fact such data could be used to lighten the burden on air travelers by pre-screening passenger lists to identify persons who merit more intense screening, while other passengers are allowed to pass with more cursory treatment. In theory this is happening; but in fact, the burdens on ordinary passengers who raise no legitimate suspicions become steadily more demeaning and intrusive.

There are three key questions that went through my mind reading this latest contribution to an already extremely impressive series.

First, the potential for abuse of a database of this sort is so obvious that it has been a staple of the science-fiction literature for more than half a century. It starts when police are able to investigate anyone who “looks suspicious,” rather than being limited to investigating persons believed to have committed a crime. The whole concept of “suspicious activity reports” crosses this threshold. The material collected then can be a powerful tool in the hands of wannabe authoritarian rulers, as we already see in nations around the world—China would be one powerful example.

Second, the raw database can be effectively used to make Americans safer, but only to the extent that it is intelligently analyzed and applied. The individual portraits that Priest and Arkin supply point to a critical weakness—instead of genuine counterterrorism experts, the system turns to individuals heavy on right-wing rhetoric and short on practical knowledge. They have flooded the system with bigoted ideas and illegitimate practices.

Third, it is an axiom of democratic society that the workings of government should be transparent and those who act in the name of the state should be accountable for misconduct and abuse, whereas the private affairs of individual citizens should be shielded from unreasonable intrusion from government view. In early twenty-first century America, powerful and perhaps unstoppable forces are pulling state and society in the opposite direction. A surveillance state is arising within the national security state created in the Cold War. In the name of state security, this state is slowly gaining access to its citizens’ most personal information. At the same time, the state is enshrouding itself with ever greater secrecy—as the masses of Wikileaked documents, the vast majority of which have no reasonable claim on confidentiality or secrecy, demonstrate. Those who mistreat foreigners, abuse citizens, and commit heinous crimes under the guise of national security are rarely held to account for their misdeeds through any process. This lack of accountability is likely to engender steadily more abuse as the power of the surveillance regime grows, but it is unlikely to produce a higher level of security.

Here’s one sample that in my mind helps drive home these points:

Suspicious Activity Report N03821 says a local law enforcement officer observed “a suspicious subject . . . taking photographs of the Orange County Sheriff Department Fire Boat and the Balboa Ferry with a cellular phone camera.” The confidential report, marked “For Official Use Only,” noted that the subject next made a phone call, walked to his car and returned five minutes later to take more pictures. He was then met by another person, both of whom stood and “observed the boat traffic in the harbor.” Next another adult with two small children joined them, and then they all boarded the ferry and crossed the channel.

As Reason magazine’s Radley Balko and others have documented, America now faces a rash of prosecutions of a hitherto-unknown crime: photographing or recording police personnel in the course of public performance of their work. Police insist that it is an “invasion of privacy” for a citizen to photograph them while they are working. In several cases, prosecutors have backed them up and brought charges. These claims are preposterous, but in the new surveillance state, even preposterous claims of police power will be sustained in the courts. In this case, an individual who is likely on a family trip and innocently collecting photographs of a harbor is being pretargeted because he snapped a picture of a police boat. This person will now be routinely monitored, and data concerning his employment, medical history, and travel habits will be collected and sorted as the police attempt to build a hostile profile of him—all based on the fact that he snapped a picture of a police vehicle.

America is not a police state. But the establishment of a systematic surveillance system used aggressively by law enforcement moves the country steadily in that direction, and creates opportunities for abuse against which no convincing guard is yet in place.

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