The bipartisan assault on privacy

Nobody should be shocked to learn that the secretive National Security Agency is routinely collecting our phone records (known in the lingo as “telaphony metadata”), or that it’s routinely tracking our Internet behavior via Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, and Apple. Let’s face it, we’re all Orwellians. We revere “freedom” and “liberty,” but these days we accept routine surveillance as a fact of life.

In the post-9/11 balancing of privacy and security, we’ve agreed to favor the latter. And even though civil libertarians have long warned about the irrevocable erosion of privacy, very few voters in either party have ever cared a whit – which explains why most politicians yawned yesterday when news broke about the NSA. As one complicit Republican senator said, “This has been going on seven years.” As one complicit Democratic senator said, “(This) has been in place for the last seven years.” They know that they’ll suffer no backlash from voters who will continue to plunk iPads and iPhones with nary a thought about who might be mining the data.

The seeds of the surveillance state were sown in October 2001, when the House and Senate, in the throes of bipartisan panic, passed the USA Patriot Act by a combined vote of 453-67. Few politicians actually read the 300-page bill – which was a shame, because Section 215, in the name of fighting terrorism, basically declared open season on all Americans.

Section 215, which was barely debated in the rushed congressional proceedings, allowed the FBI to order any person or entity to turn over “any tangible things,” as long as the FBI could show that it was conducting “an authorized investigation.” The FBI could demand those “tangible things” even when it had no reasonable grounds to believe that the thing-giving person was engaged in any criminal activity.

“It makes me sick”

Complicit congressmen said they had no problem giving the government a blank check; during the House debate (such as it was), one lawmaker said the Patriot Act “strikes the balance between expanding power and protecting civil liberty.” Another insisted that the Act was “a balanced approach” that protected our “fundamental rights of privacy.” Those remarks, on Oct. 12, 2001, were typical. But there was one stinging exception, courtesy of a congesswoman named Donna Christensen:

“(The Act) threatens the civil liberties that we have worked so hard to extend to all…It threatens not just the terrorists, but all Americans….It makes me sick to think that today we might pass this travesty of justice, and in doing so, undermine the government of checks and balances.”

Donna Christensen represented the people of the U.S. Virgin Islands – which means she couldn’t vote anyway. That pretty much sums it up.

Over on the Senate side, the sole No vote was cast by Democrat Russ Feingold. That same month, he warned in a speech that even though we’re fighting terrorism to preserve our freedom, “we will lose that war without firing a shot if we sacrifice the liberties of the American people.” Nobody paid any attention to Feingold.

Sure enough, six years later, the Inspector General of the Justice Department said in a report that the FBI was engaging in “widespread and serious abuse” of the Patriot Act, especially the provision which gave the FBI great leeway to delve into the lives of people who lacked any suspected connection to terrorism. And this was after we had already learned about President Bush’s warrantless surveillance program, which authorized the NSA to monitor the phone calls and Internet activity of Americans who communicated with people abroad.

Bush’s program was canceled after it was publicly exposed; new rules mandated that government surveillance had to be approved by federal judges who served on a secret court. That’s how the process works today; it’s all legal and routine. The Internet-mining program (known as PRISM) was launched in 2007, under Bush; so was the telephony metadata program. A few Democratic senators have since tried to tighten the rules – insisting that private communications shouldn’t be seized unless the feds could prove that the Americans in question had some suspected link to terrorism – but their efforts have gone nowhere.

Obama, then and now

And they’ve received no help from President Obama – who, on this issue, is basically Bush 2.0.

Back when he was a candidate, Obama claimed to be concerned about privacy. In June 2008, he promised that, as president, he would launch “a comprehensive review of all our surveillance programs, and to make further recommendations of any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.” His campaign website said that “we need real oversight to avoid jeopardizing the rights and ideals of all Americans,” and promised that “as president, Barack Obama would revisit the Patriot Act to ensure that there is real and robust oversight.”

That was then; today, he runs the surveillance state. As president, he signed the reauthorization of the Patriot Act. His aides are currently defending the NSA surveillance programs, and it’s a far bet that his Justice Department will launch a new probe to determine who leaked the story about the Verizon megadata. If I were Glenn Greenwald, the civil liberties lawyer/writer who broke the Verizon story, I would stay away from the phone, Internet, ATMs, and EZ Pass, and I would burn my grocery list in an ashtray.

But Obama won’t suffer much politically for defending the surveillance; as I’ve said, there are too many bipartisan fingerprints. Most Republicans have stayed mute these past 24 hours because they’ve been complicit since the Patriot Act was rushed to passage; most Democrats (who reviled Bush for his abuses) are giving Obama a pass because he’s a Democrat. And as for the electorate, ex-military intelligence analyst Joshua Foust said it best yesterday on his blog: “Despite the temporary outcry, Americans don’t care about this very much.”

Of course, we should care about the privacy issue. But we’re too busy thumbing our phones.

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