Privacy Protection and the Secret State's Surveillance Powers
By Tom Burghardt
URL of this article: www.globalresearch.ca/index.php?context=va&aid=24371
Global Research, April 17, 2011
Call it another virtual "defense" of privacy rights by U.S. lawmakers.
In the week of April 11, senators John Kerry (D-MA) and John McCain (R-AZ) introduced legislation
in the U.S. Senate, the "Commercial Privacy Bill of Rights Act of
2011," they claimed would "establish a framework to protect the personal
information of all Americans."
During a D.C. press conference, McCain
told reporters that the proposed law would protect a "fundamental right
of American citizens, that is the right to privacy."
While Kerry and McCain correctly state
that "The ease of gathering and compiling personal information on the
Internet and off, both overtly and surreptitiously, is becoming
increasingly efficient and effortless due to advances in technology
which have provided information gatherers the ability to compile
seamlessly highly detailed personal histories of individuals" (p. 4),
there's one small catch.
CNET's
Declan McCullagh reported that the bill "doesn't apply to data mining,
surveillance, or any other forms of activities that governments use to
collect and collate Americans' personal information."
While the measure would apply to
"companies and some nonprofit groups," CNET disclosed that "federal,
state, and local police agencies that have adopted high-tech
surveillance technologies including cell phone tracking, GPS bugs, and
requests to Internet companies for users' personal information--in many
cases without obtaining a search warrant from a judge" would be exempt.
As we know, a gaggle of privacy-killing
agencies inside the secret state, the National Security Agency, the
Federal Bureau of Investigation, the U.S. Department of Homeland
Security as well as offices and subunits sprinkled throughout the
Pentagon's sprawling bureaucracy, including U.S. Cyber Command, all
claim authority to extract personal information on individuals from
still-secret Office of Legal Counsel memoranda and National Security
Presidential Directives.
As the American Civil Liberties Union reported
in March, what little has been extracted from the Executive Branch
through Freedom of Information Act litigation is heavily-redacted,
rendering such disclosures meaningless exercises.
For example, the bulk of the November 2, 2001 21-page Memorandum for the Attorney General,
penned by former Deputy Assistant Attorney General John C. Yoo, which
provided the Bush administration with a legal fig-leaf for their
warrantless wiretapping programs, is blank. That is, if one ignores
exemptions to FOIA now claimed by the Obama administration. (B1,
b3, b5, exemptions relate to "national security," "inter-departmental
communications" and/or programs labelled "TS/SCI"--Top Secret/Sensitive
Compartmented Information, the highest classification).
And, as of this writing, the American
people still do not have have access to nor even knowledge of the
snooping privileges granted securocrats by the Bush and Obama
administrations under cover of the Comprehensive National Cybersecurity
Initiative (CNCI).
As Antifascist Calling
previously reported, CNCI derives authority from classified annexes of
National Security Presidential Directive 54, Homeland Security
Presidential Directive 23 (NSPD 54/HSPD 23) first issued by our former
"decider."
Those 2008 presidential orders are so
contentious that both the Bush and Obama administrations have even
refused to release details to Congress, prompting a 2010 Freedom of
Information Act lawsuit by the Electronic Privacy Information Center (EPIC) demanding that the full text, and underlying legal authority governing federal cybersecurity programs be made public.
McCullagh points out that the bill "also
doesn't apply to government agencies including the Department of Health
and Human Services, the Department of Veterans Affairs, the Social
Security Administration, the Census Bureau, and the IRS, which collect
vast amounts of data on American citizens."
Nor are there provisions in the bill that
would force federal or state agencies to notify American citizens in the
event of a data breach. No small matter considering the flawed data
security practices within such agencies.
Just last week, InformationWeek
revealed that the "Texas comptroller's office began notifying millions
of people Monday that their personal data had been involved in a data
breach. The private data was posted to a public server, where it was
available--in some cases--for over a year."
"The posted records," we're told,
"included people's names, mailing addresses, social security numbers,
and in some cases also dates of birth and driver's license numbers."
None of the data was encrypted and was there for the taking by identity thieves or other shady actors. InformationWeek
pointed out although "most organizations that experience a serious data
breach" offer free credit monitoring services to victims, "to date,
Texas has not said it will offer such services to people affected by the
comptroller's breach."
CNET reminds us that the "Department of
Veterans Affairs suffered a massive security breach in 2006 when an
unencrypted laptop with data on millions of veterans was stolen."
McCullagh avers that "a government report
last year listed IRS security and privacy vulnerabilities" and that
"even the Census Bureau has, in the past, shared information with law
enforcement from its supposedly confidential files."
The limited scope of the Kerry and McCain proposal is underscored by moves by the Obama Justice Department to actually increase the secret state's already formidable surveillance powers and short-circuit anemic privacy reforms that have been proposed.
In fact, as Antifascist Calling reported last week, during hearings before the Senate Judiciary Committee, Associate Attorney General James A. Baker warned
the panel that granting "cloud computing users more privacy protections
and to require court approval before tracking Americans' cell phones
would hinder police investigations."
But even when it comes to reining-in
out-of-control online tracking by internet advertising firms, the
Kerry-McCain bill comes up short.
As the Electronic Frontier Foundation points out, the Kerry-McCain bill won't stop online tracking by advert pimps who hustle consumers' private details to the highest bidder.
The civil liberties' watchdogs aver, "the
privacy risk is not in consumers seeing targeted advertisements, but in
the unchecked accumulation and storage of data about consumers' online
activities."
"Collecting and retaining data on consumers can create a rich repository of information," EFF's legislative analyst Rainey Reitman writes, one that "leaves consumer data vulnerable to a data breach as well as creating an unnecessary enticement for government investigators, civil litigants and even malicious hackers."
Additionally, the proposal is silent on Do
Not Track, "meaning there is no specific proposal for a meaningful,
universal browser-based opt-out mechanism that could be respected by all
large third-party tracking companies," and consumers "would still need
to opt-out of each third party individually," a daunting process.
Worst of all, consumers "won't have a
private right of action in the new Commercial Privacy Bill of Rights.
That means consumers won't be granted the right to sue companies for
damages if the provisions of the Commercial Privacy Bill of Rights are
violated." In other words, even when advertising firms and ISPs violate
their users' privacy rights, the bill would specifically prohibit
individuals from seeking relief in the courts.
Moving in for the Cybersecurity Kill
While the Kerry-McCain bill would exempt
government agencies from privacy protections, the Defense Department is
aggressively seeking more power to monitor civilian computer networks.
NextGov
reported that General Keith Alexander, the dual-hatted commander of
U.S. Cyber Command and the National Security Agency said that his agency
"cannot monitor civilian networks" and that congressional authorization
will be required so that CYBERCOM can "look at what's going on in other
government sectors" and other "critical infrastructures," i.e.,
civilian networks.
Mendacity aside, considering that NSA
already vacuums-up terabytes of America's electronic communications data
on a daily basis, reporter Aliya Sternstein notes that Alexander
"offered hints about what the Pentagon might be pushing the Obama
administration to consider."
"Civil liberties and privacy are not
[upheld] at the expense of cybersecurity," he said. "They will benefit
from cybersecurity," available only, or so we've been led to believe,
from the military, well-known for their commitment to civil liberties
and the rule of law as the case of Pfc. Bradley Manning amply demonstrates.
Cyberspace, according to Alexander, is a
domain that must be protected like the air, sea and land, "but it's also
unique in that it's inside and outside military, civilian and
government" domains.
Military forces "have to have the ability
to move seamlessly when our nation is under attack to defend it ... the
mechanisms for doing that have to be laid out and agreed to. The laws
don't exist in this area."
While Cyber Command currently shares network security duties with the U.S. Department of Homeland Security, as I reported last year, a Memorandum of Agreement
between DHS and NSA, claims that increased "interdepartmental
collaboration in strategic planning for the Nation's cybersecurity,
mutual support for cybersecurity capabilities development, and
synchronization of current operational cybersecurity mission
activities," will be beneficial.
We were informed that the Agreement "will
focus national cybersecurity efforts, increasing the overall capacity
and capability of both DHS's homeland security and DoD's national
security missions, while providing integral protection for privacy,
civil rights, and civil liberties."
But as Rod Beckström, the former director
of Homeland Security's National Cybersecurity Center (NCSC), pointed out
in 2009 when he resigned his post, he viewed increased control by NSA
over national cybersecurity programs a "power grab."
In a highly-critical letter
to DHS Secretary Janet Napolitano, Beckström said that NSA "effectively
controls DHS cyber efforts through detailees [and] technology
insertions."
Citing the agency's role as the secret
state's eyes and ears that peer into America's electronic and
telecommunications' networks, Beckström warned that handing more power
to NSA could significantly threaten "our democratic processes...if all
top level government network security and monitoring are handled by any
one organization."
Those warnings have gone unheeded.
National Defense Magazine
reported that retired Marine Corps General Peter Pace, the former
chairman of the Joint Chiefs of Staff, "would hand over the Department
of Homeland Security's cybersecurity responsibilities to the head of the
newly created U.S. Cyber Command."
Seconding Pace's call for cybersecurity
consolidation, under Pentagon control, Roger Cressey, a senior vice
president with the ultra-spooky Booz Allen Hamilton firm, a company that
does billions of dollars of work for the Defense Department, "agreed
that putting all the responsibility for the federal government's
Internet security needs would help the talent shortage by consolidating
the responsibilities under one roof."
"The real expertise in the government," Cressey told National Defense, "capable of protecting networks currently lies in the NSA."
Cressey's is hardly an objective opinion.
The former member of the National Security Council and the elitist
Council on Foreign Relations, joined Booz Allen after an extensive
career inside the secret state.
A military-industrial complex powerhouse, Booz Allen clocks-in at No. 9 on Washington Technology's list of 2010 Top 100 Contractors with some $3.3 billion in revenue.
As Spies For Hire author Tim Shorrock pointed out for CorpWatch,
"Among the many services Booz Allen provides to intelligence agencies
... are data-mining and data analysis, signals intelligence systems
engineering (an NSA specialty), intelligence analysis and operations
support, the design and analysis of cryptographic or code-breaking
systems (another NSA specialty), and 'outsourcing/privatization strategy
and planning'."
With "data mining, surveillance, or any
other forms of activities that governments use to collect and collate
Americans' personal information" off the Kerry-McCain "privacy" bill
table, as CNET reported, enterprising security firms are undoubtedly
salivating over potential income--and lack of accountability--which a
cybersecurity consolidation, Pentagon-style, would all but guarantee.
Tom Burghardt is a researcher and activist based in the San Francisco Bay Area. In addition to publishing in Covert Action Quarterly and Global Research, he is a Contributing Editor with Cyrano's Journal Today. His articles can be read on Dissident Voice, The Intelligence Daily, Pacific Free Press, Uncommon Thought Journal, and the whistleblowing website WikiLeaks. He is the editor of Police State America: U.S. Military "Civil Disturbance" Planning, distributed by AK Press and has contributed to the new book from Global Research, The Global Economic Crisis: The Great Depression of the XXI Century.
