Published on Saturday, June 24, 2006 by the Los Angeles Times
"Big Brother" Bush and Connecting the Data Dots
The Total Information Awareness program was killed in 2003, but its
spawn present bigger threats to privacy.
by Jonathan Turley
The Disclosure this week of a secret databank operation tracking
international financial transactions has caused renewed concerns
about civil liberties in the United States. But this program is just
the latest in a series of secret surveillance programs, databanks and
domestic operations justified as part of the war on terror.
Disclosed individually over the course of the last year, they have
become almost routine. Yet, when considered collectively, they
present a far more troubling picture, and one that should be vaguely
familiar.
Civil liberty-minded citizens may recall the president's plan to
create the Total Information Awareness program, a massive databank
with the ability to follow citizens in real time by their check-card
purchases, bank transactions, medical bills and other electronic
means. The Defense Advanced Research Projects Agency, or DARPA, was
assigned this task, but after its work was made public, Congress put
a stop to it in September 2003 as a danger to privacy and civil
liberties.
However, when Congress disbanded the Total Information Awareness
program, it did not prohibit further research on such databanks, or
even the use of individual databanks.
And, according to a recent study by the National Journal, the Bush
administration used that loophole to break the program into smaller
parts, transferring some parts to the National Security Agency,
classifying the work and renaming parts of it as the Research
Development and Experimental Collaboration program.
It was long suspected that Total Information Awareness survived, and
the disclosure this week of another massive databank operation has
only reinforced that fear. The spawn of DARPA seem to be turning up
in secret programs spread throughout agencies.
The administration learned that it could not create a network of
databanks in one comprehensive system, but it could achieve the same
results by creating smaller systems that could be easily daisy-
chained at a later date into the same kind of massive computer bank
that Congress thought it had shut down. It is DARPA, albeit with
assembly required for the ultimate user.
Consider some of the recent disclosures:
o A domestic surveillance program operated without warrants involving
thousands of calls that are isolated by computers at the NSA.
o A massive databank that contains information on hundreds of
millions of telephone calls of Americans that is described as the
world's largest database.
o Access to information in a massive databank that carries 12.7
million messages each day on international financial transactions.
o Use of massive private databanks with access to an array of
information on citizens, including at least 199 data-mining projects.
o Quiet support for a national registered-traveler program in which
citizens voluntarily submit private information and subject
themselves to background checks for faster passage through airport
security. (The information would then be housed in a computer system
accessible to the government.)
These computer databanks and programs are technically separate but
collectively could exceed the dimensions of the DARPA program killed
in 2003. Most of these systems have certain common characteristics,
including the absence of congressional approval. Indeed, the recently
disclosed financial transaction program was created by the Bush
administration as an emergency program, but it has continued for
years.
Although the administration has refused to involve the courts in such
programs, it actually contracted out the role of oversight -
according to the New York Times, it hired a private auditing firm to
make sure that the monitoring of financial transactions was not being
misused. Such outsourcing of civil liberty protections is hardly what
the framers foresaw when they created a system of checks and
balances.
Most of these programs are designed to look for suspicious conduct
from everyday transactions. By combining information, the government
uses "link analysis" to find something suspicious among otherwise
innocent-looking transactions. It also is a technique that
necessarily exposes innocent citizens to constant forms of
surveillance or monitoring - the very danger of DARPA's Total
Information Awareness program that Congress wanted to avoid.
It now appears that the administration has achieved by stealth what
it could not achieve by persuasion in Congress: the creation of a
computer network that could follow millions of citizens to reveal
their movements and transactions.
It is all part of this administration's insatiable desire for
information. With regard to its own conduct and information, the
administration has fought against the notion of transparency - from
refusing to disclose meetings with lobbyists, to denying Congress
information needed for oversight, to threatening journalists with
prosecution for revealing secret programs such as the NSA domestic
surveillance program.
Yet, when it comes to citizens, the administration demands total
transparency to allow it to monitor everyday transactions and
conduct.
It is perhaps the greatest danger that can face a free society: a
government cloaked in secrecy with total information on its citizens.
For most of our history, one of the greatest protections for civil
liberties has been the practical inability of the government to
surveil a large number of citizens at one time. In the last couple of
decades, those technological barriers have fallen away.
In the meantime, the Supreme Court has removed legal barriers to the
government's acquisition of personal information by allowing it to
obtain the records of banks, telephone companies and other businesses
without a warrant. This combination of legal and technological
changes has laid the foundation for a fishbowl society in which
citizens can be objects of continual surveillance.
Americans have long been defined by our privacy values. We have
fiercely defended what Justice Louis Brandeis called "our right to be
left alone." It is only in the assurance of privacy that free
thoughts and free exercise of rights can be truly exercised. Such
privacy evaporates with doubt; it is why the Constitution seeks to
avoid the chilling effect of uncertainty in government searches and
seizures.
Yet, the problem has been that these programs have been revealed and
analyzed in isolation. Each insular program has been defended in
insular terms. It is just domestic telephone numbers or just
international transactions. Citizens have become accustomed to a
steady stream of secret programs and new forms of government
monitoring. It is something that our fiercely independent ancestors
would have never imagined.
Privacy is dying in America - not with a fight but a yawn.
Jonathan Turley is a law professor at George Washington University.
