American democracy urgently needs laws to protect our privacy from the national security state's new surveillance technologies
Kade Crockford, guestblogging for Glenn Greenwald
guardian.co.uk, Tuesday 5 March 2013 07.30 EST
Military surveillance technologies trickle down to domestic law enforcement faster than ever before. Drones are only one highly controversial example of this endemic problem. And while cutting-edge technologies bring new – and yes, different! – threats to our personalprivacy, the right response can be found in the spirit of a document written well before human beings ever conceived of an all-seeing eye in the sky: the Bill of Rights.
Organizations like the ACLU are doing their best to counter the threats posed by emerging technologies with a host of privacy protection bills at the state and federal levels. But we need to come to grips with the fact that the digital revolution necessitates something broader than scattershot law reform, though that will help. Ultimately, we need a mass movement for privacy. We also need to fundamentally rethink our relationship to the government in the post 9/11 era.
The medium is the message – and this one should serve as a warning
National Security Professionals, journalists who cover Yemen and Pakistan, and targeted killing apologists regularly remind civil libertarians like me that drones are not the only technology deployed in the Obama administration's ever-expanding "war on terror". "It's not about drones!" they cry, evidently tired of repeating that flying robots are but one delivery system among many for US-fired bombs.
And they have a point. As investigative journalist Jeremy Scahill reminds us, one of the most horrific known US attacks in Yemen was executed by cruise missile, fired from a US Navy ship. Forty-one civilians died in that bloody 2009 strike on al-Majala. Clearly, the US has a diverse arsenal capable of punishing Yemenis and Pakistanis with Hellfire. The drones are not alone in the dealing out of that death and destruction.
But the people who tell us not to single out drones are also wrong. Drones are different. They are cheaper than fighter jets (pdf) and ships. They crash more often than manned aircraft. They can hover in the sky for hours or even days, collecting surveillance information or waiting to strike. They can act autonomously. And obviously, the deployment of unmanned bombers poses zero physical risk to the people flying them. For the US, the human cost of fighting wars with robots is relegated to the psychological.
Those who caution civil libertarians not to focus on drones, ipso facto, are right in one respect: the Obama administration's obsession with targeted (and not-so-targeted) killings is the central problem with its policy in Yemen, Pakistan and now north-west Africa. As Ned Resnikoff put it:
"The 'war on terror' is the problem, not drones."
But while drones are not the only weapon used to execute the Kill List/Disposition Matrix, they are a different kind of weapon. And those differences are substantial not only to the people at the other end of the bombs and missiles, who live in terror in part because of the incessant buzzing in the skies above them, but also to those of us in the United States – and not just because drone strikes hurt our national security ormoral standing. The US government's infatuation with drones is quite literally coming home to roost.
From the Pentagon to militarized domestic law enforcement
The most powerful military in the world needs to have the latest and greatest gadgets, and even iPhone users know how quickly technologies grow stale these days. So, as any big brother would do in a large family, the Department of Defense passes down its old stuff to its little siblings. In the institutional family of US state security, this tradition has been formalized in the 1033 and 1122 Programs, which gift military equipment to domestic law enforcement agencies gratis. (When people like me warn about the "militarization of the police", it's meant not just metaphorically.)
An early benefactor of Pentagon largesse with respect to drones in particular was the much-criticized Department of Homeland Security. With the military's help, the DHS has been testing domestic drone deploymentsince as long ago as May 2003, in exercises the agency says have been mostly limited to surveillance of the south-west and northern US borders.
But documents released by the Electronic Privacy Information Center(and an unredacted version of the same unearthed by CNET) late last week show that the DHS has been doing a lot more with drones in the intervening ten years, including tricking them out with cellphone sniffing equipment, sensors that can distinguish between humans and animals, and technology that tells authorities whether someone on the ground is packing a gun.
Frighteningly, the records also show that the DHS' Predator drones are ready to be equipped with weapons, although a spokesman for DHS sub-agency Customs, Border Protection (CBP) told CNET's Declan McCullagh that the drones are currently unarmed. McCullagh reports that the DHS has been loaning its drones to domestic law enforcement agencies with criminal justice missions, "including the FBI, the Secret Service, the Texas Rangers, and local police." Requests from those agencies are becoming more and more common, he writes:
"[DHS drone] use domestically by other government agencies has become routine enough – and expensive enough – that Homeland Security's inspector general said (pdf) last year that CBP needs to sign agreements 'for reimbursement of expenses incurred fulfilling mission requests'."
The DHS told McCullagh that it isn't using "signals interception" on its drones – yet – and that "[a]ny potential deployment of such technology in the future would be implemented in full consideration of civil rights, civil liberties, and privacy interests and in a manner consistent with the law and long-standing law enforcement practices." But if "longstanding law enforcement practices" are any indication of where the DHS is headed, we are in trouble.
That's because often "long-standing law enforcement practice" has been to get away with whatever it can using the loosest interpretation of the fourth amendment possible, before legislators or courts act to correct the problem (if they ever do).
ACLU public records requests on a range of cutting-edge law enforcement technologies (from cellphone tracking to license plate readers) show that federal, state and local law enforcement know full well that the surveillance tools at their disposal have gotten out far ahead of state and federal statutes, and many agencies aren't afraid to use that power to their advantage. We are, after all, living in an era in which law enforcement has said it needs access to our emails without warrants – and while courts are in the process of setting related precedent, Congress has yet to answer the question for the nation, once and for all.
Don't necessarily trust, but verify – and legislate
Should we trust the Department of Homeland Security when it says that it doesn't use cellphone signals interception on its drones, even though it built them specifically to enable this kind of surveillance? Maybe the DHS doesn't use that particular feature during its south-west border flights, but since the technology is capable of sniffing cellphones, should we trust that the FBI wouldn't flip the switch when it borrows CBP's drones? Keep in mind that this FBI is governed by a Department of Justice that has told the public we have "no privacy interest" in the detailed location information our cellphones communicate 24/7.
The DHS has also loaned its spy drones to local police departments. Would you feel comfortable if you knew that the NYPD was using DHS surveillance drones equipped with cellphone sniffing gear, given that security researcher and private investigator Steven Rambam has saidthat "everybody that attended an Occupy Wall Street protest, and didn't turn their cellphone off … [had their] cellphone … logged"?
Ultimately, it doesn't matter whether we trust the authorities to impose limits upon themselves when it comes to deployment of surveillance technologies that legislators nor courts have specifically circumscribed. The fact is that the law is out of date. The Bill of Rights was written a long time ago, well before cellphones, the internet, spy drones or even video cameras were invented. Our Electronic Communications Privacy law iswoefully obsolete, itself predating widespread usage of three of those four technologies.
We need to bring the Bill of Rights into the 21st century for the same reason the ACLU and others want the Obama administration to tell us its legal rationale for its overseas killing operations: the public should know what rules the government is bound by, particularly when it comes to our rights to privacy and due process. Unfortunately, that's simply not the case. Today, we live in an era of secret law, from top-secret CIA and military killings abroad, all the way down to the DOJ's view of law enforcement location tracking powers here in the US. Where the law doesn't explicitly provide guidance, we are largely ignorant of how the government interprets its authorities with respect to new technologies, its powers, and our rights.
Meanwhile, engineers and coders are not slowing down to wait for our state legislators or federal representatives to catch up. Just this week, I read about "research to build drones that can stop moving boats and cars" – what the technologists call "crime-stopping drones". The week before that, it was a drone the size of a fist that can fly through your window and kill you.
Then, there is the privacy-lover's worst nightmare: the all-seeing Argus, which can simultaneously watch an entire city and multiple targets within it. We are so far behind on digital privacy that it's hard to imagine what the next phase of technological development has in store for our privacy interests. But we better shape up quickly before things like brain-computer interface technology and Darpa's slime robots become more than abstractions.
Drone apologists say that police helicopters can already monitor us from the skies, but it's clear as day that drone technology is different. The diversion tactic, on the other hand, is not: we hear similar refrains to counter public outcry about other technologies, too, like when police departments say license plate readers just enable police to do what they've always done more efficiently, and when they tell us that iris scans are nothing more than a modern fingerprint.
If it were true that "nothing changes" with the advent of these tools, law enforcement would support efforts to limit the privacy harms that the new technologies alone enable. Instead, the state security apparatus more often than not fights civil libertarian efforts to do so at every level.
But even as the technology changes, the framework for the rules that govern how police and federal agencies can interfere with or monitor our private lives doesn't have to change one bit. All we need is for lawmakers to bring the fourth amendment into the digital age – to deal with drones, license plate readers, biometrics and more.
With respect to drones, there is significant movement in the right direction; at least 29 US states are considering legislation to limit the use of domestic drones, to ensure continuity with constitutional principles – my home state of Massachusetts among them. Communities in the US are pushing back at the city level, too – for example, in Alameda County, California and Seattle, Washington.
We must support these efforts before our skies are full of spying robots. But perhaps more importantly, we need to seriously reckon with the fact that the military and "homeland security" investment of billions (if not trillions) of dollars into research and development for the next big thing in surveillance will bring another privacy disaster, and then another, if we don't fundamentally reshape our relationship to the government and legislate for personal privacy for every generation.
Academic and writer Michelle Alexander has said, of the prison-industrial complex and mass incarceration, that we need a mass movement to repeal the New Jim Crow. She warns that the scattershot strategy of advocating to close some prisons here and reform sentencing there won't cut it. The same is true with respect to the ongoing war on our privacy amidst rapidly developing technologies, and state power post 9/11 more broadly. We need comprehensive privacy law reform for the 21st century; in order to get there, we need a new mindset.
Today, it's drones. We can and must deal with the privacy harms they pose by passing state and federal legislation to ban weaponized drones domestically and require a warrant for surveillance targeting. But what comes next?
To properly realign our relationship with the US government, we the people must demand a Church committee for the 21st century as a first step towards the critically important task of dismantling the secretive national security state. Nothing less than the possibility of democracy is at stake.