Secret Police

Can personal privacy survive the digital revolution?

Civil libertarians hoped that the Obama era would see a renewed commitment to privacy protections. But their dreams are being dashed. Congress seems likely to recess without adjusting aspects of the Patriot Act set to expire at the end of the year, which means that the existing law will be temporarily extended. Elements up for reconsideration include roving wiretaps in foreign intelligence investigations that are not targeted to a specific communication mode or person and "section 215" ability to seize business or other records in a presumptive terror investigation.

Different bills to reform these and other powers have come out of the Judiciary Committees of the House and Senate. The House version is slightly better in terms of demands it makes on law enforcement and intelligence agencies to have defensible reasons for their searches and seizures. But the controversial provisions will survive, even if slightly circumscribed.

So will other post-9/11 surveillance practices. Candidate Obama swore that under his reign, Americans would see "no more National Security Letters to spy on citizens who are not suspected of a crime." But his administration has shown no desire to relieve itself of NSL powers. National Security Letters allow FBI agents to grab records and information about you from third parties without any judicial supervision. The recipients are legally prohibited from telling anyone other than their lawyers that they gave up the information.

The Patriot reauthorization debate unfolded as the telecommunications industry, already known for craven capitulation to the National Security Agency's warrantless wiretapping program, was revealed by researcher Chris Soghoian to be continuing to cooperate with law enforcement against customers' interests at a level that, in the words of a request from Yahoo! to keep its collaboration quiet, would "shock" customers and "shame" telcos.

Sprint Nextel, for example, provided the government with GPS locations of its subscribers via their cell-phone signals 8 million times between September 2008 and October 2009. As Soghoian writes, telecom and Internet providers "all have special departments, many open 24 hours per day, whose staff do nothing but respond to legal requests. Their entire purpose is to facilitate the disclosure of their customers' records to law enforcement and intelligence agencies." Verizon, objecting to a FOIA request by Soghoian, expressed concern that subscribers might start bothering it to provide information dumps that the company only provides for cops. Verizon also worried that customers would ask whether their info was being coughed up to law enforcement. Of course, Verizon would not tell them.

These two stories—Patriot reauthorization and telco cooperation—frame the battlefield on which American privacy is being slaughtered. On one end is a government that wants to suck up as much information as it can with as little oversight as possible. On the other end are private companies—to which we entrust more and more information about what we are saying, writing, buying, and thinking—that in effect act as government information agencies.

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