by John Q. Newman
The "war on terrorism" has already taken a tremendous toll on personal privacy and civil liberties. The USA Patriot Act allows people to be detained without formal charges, has greatly loosened the restrictions on wiretaps and other electronic monitoring, and has removed restrictions that were enacted in the 1970s to prevent the FBI and local law enforcement agencies from spying on groups engaged in lawful political dissent. If law enforcement agencies simply allege that an individual or group is suspected of terrorist involvement, the gloves can come off, and these new powers can be used with very little judicial oversight.
As bad as this might be, there is still judicial oversight on these information-gathering powers. Many federal district court judges have gotten their backs up when presented with unjustified demands for secrecy on the part of federal prosecutors. But what if there was a way to make an end run around even the relaxed restrictions of the USA Patriot Act? What if it were possible to have a record of the activities of almost everyone in the nation, and have this information in real time? This is just what has been proposed, and is now underway. It is still a few years away, but it is most assuredly coming. The most disconcerting aspect of it all is that this new system is being created not by a law enforcement agency, but instead by the Pentagon, an agency that will face none of the legal limitations that the FBI or Justice Department would.
The genesis of such an information system started, in fact, with the FBI. Back in the 1980s, the FBI proposed linking the National Crime Information Center, or NCIC, computer into many commercial computer databases. The FBI wanted airline companies, automobile rental outfits, and hotel chains, to link their centralized reservations systems into the NCIC computer. The FBI could then check its files of wanted persons against people making reservations shortly after they were made. The only reason this did not happen was that the Congressional oversight committee was concerned about the privacy implications, and that it would turn the FBI into Big Brother.
The Pentagon plan goes far beyond what the FBI proposed. The Pentagon plan relies upon the fact that in the 21st century, most transactions that people make to do their daily business are recorded on a computer database. The Pentagon plan also takes advantage of the fact that many more transactions are now done with debit and credit cards, and fewer with cash. Any non-cash transaction must have a record in a computer system, and if that record exists, it can be retrieved, and linked to a specific individual.
Financial records are only the beginning. The system would also allow the Pentagon access to a plethora of public record data. This would include such items as state motor vehicle databases for driver's license and vehicle registration records, property sale and tax records, travel records, store purchase records, Internet records, and even records the movies you rent. What will the Pentagon do with all of this information? The theory is that people who are terrorists will have a certain transaction “profile.” Once the transaction profiles of terrorists are known, the system can look for people whose transaction pattern is similar. If you happen to be one of these unlucky people, watch out. At this point you are now suspected of terrorism, and the relaxed standards of the USA Patriot Act can come into play.
The relaxed standards of the Patriot Act are nothing to sneeze at. Once an individual has been officially labeled as a terrorism suspect, all sorts of skullduggery can begin with little or no judicial oversight. A good example concerns the records individuals have with businesses of all stripes – from the local library to your Internet service provider. Under the Patriot Act, a business must provide your records, but this is not the most chilling part of the law. The business, under penalty of law, cannot inform you that the police have requested your records, or tell you what information they requested.
The Pentagon argues that the information they are collecting and analyzing is already out there. They will not be gathering any new data, but that is hardly the point. The Pentagon will be tying together in one place a vast repository of personal information that now exists on separate systems, information that law enforcement agencies must now get warrants from judges to obtain. The Pentagon system will also create a level of monitoring of all individuals that is unprecedented in the history of any nation. The worst despots of the 20th century did not have a fraction of the information rapidly available that the Pentagon will. No other nation now, even regimes we condemn for not allowing personal freedom, will have anything even close to this.
The government assures us that this new information gathering ability will not be abused, or used for any other purpose than legitimate antiterrorism investigations. History tells us otherwise. Consider a famous 20th century despot, Adolf Hitler. Most Americans are not aware that in Germany people must register their address with the local police when they move. This was true in the 1930s, when Hitler came to power, and it is also true now, in 2003. When Hitler began the mass roundups of the jews, his job was made much faster, because the names and addresses of every Jew in Germany were on file at the local police precincts in every city and town. Now, with computerization, it would be even faster. A nationwide list of the names and addresses of every Jew in Germany could be assembled in a few minutes from the police computer system.
Total informational awareness will allow the Pentagon to input a name and birthdate, and then generate a printout of all of the recent activities of that person: where they shopped, who they called, what Internet activity they had, where they sent packages, what the last charge was on their credit card, and what they purchased at the hardware store. Would a system like this really catch terrorists or would it simply destroy all the privacy of everyone in the nation?
The system is predicated upon knowing what the transaction pattern of terrorists and their sympathizers are. This pattern must be sufficiently unique that it doesn't overlap with the patterns of millions of other innocent people. One could create a terrorist profile of a person who travels a lot to Middle Eastern countries, purchases suspicious chemicals at hardware stores, and visits websites of radical Islamic groups on the Internet. Unfortunately, this pattern could just as easily apply to an innocent person who has family in the Middle East and does a lot of work around his home.
We like to think that such errors would not be made, but look at the paranoia that has followed the events of 911. People who looked Arab or Middle Eastern were arrested for “suspicious” activities, even when there was no basis for it. In one case, the chief of the health department of a medium-sized northeastern city was arrested along with some members of his family. Neighbors saw these Middle Eastern people bringing suspicious items into their home. The suspicious items turned out to be crock-pots filled with food for a banquet. In another example, a group of actors from India was detained upon arrival in New York City because other passengers overheard them admiring the Statue of Liberty in their native tongue as the plane was landing. The American passengers thought they were planning a terrorist act against the statue.
Another danger a system like this poses to everyone is that hundreds of thousands of people could find themselves linked to actual terrorism suspects due to a police procedure known as "creating a constellation." This procedure involves taking one person or organization, and then linking it to as many other people or groups as possible to develop more suspects. If the government is tracking a particular bona fide terrorism suspect, and you happen to have a seat next to him on an airplane, your name and identification can now become part of the constellation. If you received mail from a group that is under investigation, even if they purchased your name from a commercial mailing list, you are now part of the constellation, and subject to investigation.
This is not just theoretical. In the summer of 2002, the FBI had intelligence that scuba divers might plant explosives underwater at ports around the country. The FBI then contacted every scuba shop in the country, demanding the shops turn over the names and addresses of anyone who had taken scuba lessons in the last nine months. Only one dive shop in the whole country refused, telling the FBI to get a warrant. Hundreds of thousands of innocent Americans were subjected to FBI investigation for taking scuba lessons.
The other reason these profiles will not work is that the terrorists are not stupid. The folly of trying to prevent crime via profiles has already been well documented. Numerous laws are on the books to detect people who launder the financial proceeds of drug trafficking. If you purchase or cash $3,000 or more of bearer instruments, such as money orders or travelers checks, a report must be made to the Treasury Department. If you attempt to cash a wire transfer for $500 or more, a report will be made. If you attempt to transport $5,000 or more in cash into or out of the United States, it must be reported. Don't even think of purchasing a car for cash. If you withdraw too much cash out of your bank account, it will be reported.
How many major drug traffickers have been caught by these laws? Very few, if any. The drug traffickers know that they must structure their affairs to avoid detection. The end result is that most of the paperwork generated by these laws concerns ordinary citizens, who for whatever reason, have a transaction that is profiled.
The larger implication of the total information awareness system is that we move further and further away from the concept of individualized suspicion based on specific illegal acts committed by the individual. You become the subject of highly intrusive investigations simply because the pattern of some of your activities is similar to someone who "might" be a terrorist.
The Pentagon has offered assurances that access to the system will be limited, and that it would only be used on people outside of the nation. These assurances ring hollow. History has shown that when the government has information available to it, it uses it, frequently for purposes it was not originally intended for. Once a database such as this was in existence, law enforcement agencies would routinely access it, frequently in an “unofficial” capacity. This use of information outside of its intended purpose has already occurred with another relatively new database, the National Instant Background Check System, for the purchase of handguns.
The law that led to the creation of this background check system for handgun purchasers specifically stated that the information collected was only to be used for the purpose of determining if someone was ineligible to purchase a firearm, and nothing more. An audit trail of each transaction was only to be accessed by the FBI for statistical purposes, and in cases where a denial was contested. After that, the data would be discarded. Almost immediately the FBI wanted to retain the information and use it for other purposes, and the lower federal courts ruled that they could. The reason for the limitations on use and retention of the data? To prevent the system from becoming a national database of everyone who has purchased a gun.
The total informational awareness system also raises the issue of whether we are losing the very values we say we are protecting? What will differentiate America from other countries if all of us are under constant monitoring to protect us? What does it mean to be an American if we continue to shred the Constitution in the interest of national security? In fact, will the terrorists not have won the ultimate victory by turning America into a police state, where the activities of everyone, everyday are tracked and analyzed by the government in the name of security?
