The Surveillance State 2015- Part 2, by Kass Andrada

Police and government have also been using cell phone jammers in a number of places. The Federal government has discussed implementing in-car jammers in order to enforce anti-texting and hands-free laws,[1] in part, at the urging of articles in the Journal of the American Medical Association.[2] While the FCC insists that use of cell phone jammers is illegal[3] at least one commercial site offers cell phone jammers for use in prisons[4] and at least one corporation has been caught using cell jammers to prevent it’s employees from communicating while on the clock.[5]

License plate readers have been deployed in fixed locations and mobile vehicles to read and track all license plates traveling through certain locations.[6] Public interest groups,such as the Electronic Privacy Information Center[7] and Electronic Frontier Foundation[8], continue to oppose such activity and have recently obtained judicial review of the practice. Until such time as a court orders its halt or a legislature intervenes, however, it is very likely to continue or expand.

Legislation was passed to reform NSA data collection, however, it was limited in application, rife with loopholes, and had no particular disclosure or enforcement mechanism.[9] When Congress allowed certain Patriot Act provisions to lapse, the NSA was permitted to revert back to old mechanisms and did so within two days.[10] Perhaps, to nobody’s surprise, the Foreign Intelligence Surveillance Court ruled in June, 2015 that bulk collection of domestic phone calls could be resumed.[11] After all, politicians themselves are targets of the spying and have been for years. “The way ECHELON had been designed,” she said, “the targeting of U.S. political figures was not an accident.”[12] U.S. Senator Diane Feinstein openly accused the CIA of spying on her and the Senate Intelligence Committee in 2014.[13] It was a charge that they never refuted and appears to have been true.[14] Senator Feinstein, despite her professed outrage at the actions against her and her office and Congress in general,returned to championing domestic spying within a year, claiming that the programs do not constitute “mass surveillance” and that they are necessary to combat “evil”, even though warrants were only sought in 12 of 288 queries about possible suspects.[15]

President Obama issued a memorandum in February, 2015 directing federal agencies to develop policies and protect privacy and civil rights,[16] however there are a number of loopholes hat allow the requirements to be evaded, such as “unless retention of the information is determined to be necessary to an authorized mission of the retaining agency, is maintained in a system of records covered by the Privacy Act, or is required to be retained for a longer period by any other applicable law or regulation.”[17] Essentially,if the agency can articulate a reason to keep the data, or promise that it is stored safely, it will be kept.[18]

None of the foregoing has any effect whatsoever on the myriad independent contractors and agencies of the federal government. Although they have been officially encouraged to comply,[19]there is no enforcement mechanism. The general public is specifically barred from claiming any rights under the memorandum:

(e) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

If electronic privacy violations aren’t bad enough, the various government entities are also engaged in real-world warrantless surveillance through drones. Drone surveillance is largely unaddressed by existing law despite the fact that a large number of government agencies have them and use them regularly.[20] One attempt to gather data on how many agencies used drones suggested more than three hundred and fifty (350) state and federal agencies were using drones as of 2012.[21] The FBI alone “operates dozens of small spy planes across the country. …over 100 flights in 11 states over cities and rural areas during a 30-day period.”[22] There is neither a uniform policy for their use,[23] nor a mechanism for protecting the general public from any drone activity.

The states have not been particularly aggressive regarding drone and surveillance limitations either. As of February, 2015, only fourteen (14)states had any requirement to obtain a warrant for drone surveillance.[24] Wiretap, voyeurism, paparazzi, and other problems associated with drones are only haphazardly addressed[25] and are caught in the interplay of state and federal regulations.[26] The National Conference of State Legislatures maintains compilation of state laws but restricts access to its members; however, some of the data was extracted to private web sites.[27] A brief review of that information suggests that little has been done to protect the citizenry from the vastly expanded power of the state.

Overall, there is a very severe concern that U.S. citizens are being constantly surveilled and all communications and data obtained from that surveillance has been retained by multiple government entities or affiliates as well as a huge number of private companies under lax to nonexistent standards on an indefinite basis. If a citizen has a cell phone while they are driving,or perhaps even inside their home, every element of their activity, identity,licensing, whereabouts, and communication is immediately known by one or more government agencies as well as a much broader range of private companies and could be shut down at any time.

Privacy is, as far as the government is concerned, a relic of the past. It’s not one that will be buried or forgotten over time either. In the absence of any direct and enforceable requirement to delete data files, there is no reason to think that they would ever be removed. They know who you are, what you’re doing and saying, and where you are all the time; and if they don’t know right this minute, it is only a matter of looking back into the archives to find out.These facts can no longer be denied. It is a question of what should be done.Will the American people demand a right to privacy, a right to be secure in their homes, papers, and effects unless the government obtains a search warrant based on probable cause[28], or will they meekly submit to the surveillance state?

“Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”- Learned Hand 1944.

References

[1] “”The federal government should enact stringent new safety standards that require all handheld devices to be rendered inoperable when the motor vehicle is in motion,” the authors write.”http://www.theverge.com/2013/3/12/4093064/researchers-call-for-crackdown-on-texting-while-driving

[2] http://jama.jamanetwork.com/article.aspx?articleid=1660390

[3] https://www.fcc.gov/encyclopedia/jammer-enforcement

[4] “CPC The product that SOLVES cellphone problems in prisons NOW!” http://cjam.com/

[5] http://www.digitaltrends.com/mobile/fcc-seeks-48k-fine-for-driver-using-cell-phone-jammer/

[6] https://www.eff.org/deeplinks/2015/07/eff-and-aclu-win-review-automated-license-plate-reader-case

[7] https://www.epic.org/

[8] https://www.eff.org/

[9] http://www.huffingtonpost.com/michael-brenner/the-nsas-second-coming_b_7535058.html

[10]http://www.cnn.com/2015/06/02/politics/bulk-data-collection-coming-back-usa-freedom-act/

[11]http://www.nytimes.com/2015/07/01/us/politics/fisa-surveillance-court-rules-nsa-can-resume-bulk-data-collection.html

[12]http://www.theregister.co.uk/2015/08/03/gchq_duncan_campbell/?page=5

[13]http://www.cnn.com/2014/03/11/politics/senate-cia/

[14] “An internal investigation by the C.I.A. has found that its officers penetrated a computer network used by the Senate Intelligence Committee in preparing its damning report on theC.I.A.’s detention and interrogation program.” http://www.nytimes.com/2014/08/01/world/senate-intelligence-commitee-cia-interrogation-report.html?_r=0

[15] Feinstein at Stanford: U.S.needs to track possible terrorists 5/29/15 http://news.stanford.edu/news/2015/may/feinstein-security-talk-052915.html

[16] “… the Federal Government shall take steps to ensure that privacy protections and policies relative to UAS continue to keep pace with these developments. Accordingly, agencies shall,prior to deployment of new UAS technology and at least every 3 years, examine their existing UAS policies and procedures relating to the collection, use,retention, and dissemination of information obtained by UAS, to ensure that privacy, civil rights, and civil liberties are protected. Agencies shall update their policies and procedures, or issue new policies and procedures, as necessary.” Presidential Memorandum 2/15/15 https://www.whitehouse.gov/the-press-office/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-while-safegua

[17] Ibid.

[18] The question of whether any federal data can be stored safely is very much in play given the data breach of twenty one and a half million people in one of its’ major departments, see Massive Federal Data Breach Affects 7% of Americans http://time.com/3952071/opm-data-breach-federal-employees/retrieved July 31, 2015. 47

[19] “(d) Independent agencies are strongly encouraged to comply with this memorandum.” Ibid.

[20] “The Federal Government currently operates UAS in the United States for several purposes, including to manage Federal lands, monitor wildfires, conduct scientific research, monitor our borders, support law enforcement, and effectively train our military.”Presidential Memorandum 2/15/15. https://www.whitehouse.gov/the-press-office/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-while-safegua.See also https://www.govloop.com/community/blog/bird-plane-cool-government-drones/for a list of agencies using drones as of May 2015 including: the US Geological Survey (USGS); National Oceanic and Atmospheric Administration (NOAA); National Science Foundation (NSF); US Department of Transportation (USDOT); National Aeronautics and Space Administration (NASA); US Department of Agriculture(USDA).

[21] https://www.muckrock.com/drone-census/ .

[22] http://dailycaller.com/2015/06/02/congress-demands-answers-from-fbi-on-domestic-spy-planes/

[23] “Right now, the federal government doesn’t have a clear picture of how it’s using drone technology across agencies and departments, nor does it have clear, consistent standards in place to protect Americans’ privacy.” https://www.aclu.org/blog/unchecked-government-drones-not-over-my-backyardRetrieved July 31, 2015.

[24] http://www.nationaljournal.com/tech/few-privacy-limitations-exist-on-how-police-use-drones-20150205

[25] https://www.aclu.org/blog/status-2014-domestic-drone-legislation-states?redirect=blog/technology-and-liberty/status-2014-domestic-drone-legislation-states

[26] http://www.brookings.edu/research/reports2/2014/09/civilian-drones-and-privacy

[27] http://dronelife.com/2014/07/19/state-drone-laws/

[28] See U.S. Constitution,Amendment IV: “The right of the people to be secure in their persons, houses,papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

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