Cybersecurity: We Still Have A Constitution? Right?

18 Dec

Here’s today’s COMMENT FROM AN OLD FART: This change in law may have slipped your notice because the change was not carried out with public discussion or even notice. By the stroke of a pen, the government was given sweeping powers to collect information about Americans.

Kim Zetter reports in the Wired article, Attorney General Secretly Granted Gov. Ability to Develop and Store Dossiers on Innocent Americans:

In a secret government agreement granted without approval or debate from lawmakers, the U.S. attorney general recently gave the National Counterterrorism Center sweeping new powers to store dossiers on U.S. citizens, even if they are not suspected of a crime, according to a news report.

Earlier this year, Attorney General Eric Holder granted the center the ability to copy entire government databases holding information on flight records, casino-employee lists, the names of Americans hosting foreign-exchange students and other data, and to store it for up to five years, even without suspicion that someone in the database has committed a crime, according to the Wall Street Journal, which broke the story.

Whereas previously the law prohibited the center from storing data compilations on U.S. citizens unless they were suspected of terrorist activity or were relevant to an ongoing terrorism investigation, the new powers give the center the ability to not only collect and store vast databases of information but also to trawl through and analyze it for suspicious patterns of behavior in order to uncover activity that could launch an investigation.

The changes granted by Holder would also allow databases containing information about U.S. citizens to be shared with foreign governments for their own analysis….

The NCTC currently maintains the Terrorist Identities Datamart Environment database, or TIDE, which holds data on more than 500,000 identities suspected of terror activity or terrorism links, including friends and families of suspects, and is the basis for the FBI’s terrorist watchlist.

Under the new rules issued in March, the NCTC can now obtain almost any other government database that it claims is “reasonably believed” to contain “terrorism information.” This could conceivably include collections of financial forms submitted by people seeking federally backed mortgages or even the health records of anyone who sought mental or physical treatment at government-run hospitals, such as Veterans Administration facilities, the paper notes.

The Obama administration’s new rules come after previous surveillance proposals were struck down during the Bush administration, following widespread condemnation.

In 2002, the Pentagon’s Total Information Awareness program proposed to scrutinize both government and private databases, but public outrage killed the program in essence, though not in spirit. Although Congress de-funded the program in 2003, the NSA continued to collect and sift through immense amounts of data about who Americans spoke with, where they traveled and how they spent their money.

The Federal Privacy Act prohibits government agencies from sharing data for any purpose other than the reason for which the data was initially collected, in order to prevent the creation of dossiers, but agencies can do an end-run around this restriction by posting a notice in the Federal Register, providing justification for the data request. Such notices are rarely seen or contested, however….

But the request to expand the center’s powers led to a heated debate at the White House and the Department of Homeland Security, with Mary Ellen Callahan, then-chief privacy officer for the Department of Homeland Security, leading the charge to defend civil liberties. Callahan argued that the new rules represented a “sea change” and that every interaction a citizen would have with the government in the future would be ruled by the underlying question, is that person a terrorist?

Callahan lost her battle, however, and subsequently left her job, though it’s not known if her struggle over the NCTC debate played a role in her decision to leave.

The Wall Street Journal (WSJ) weighed in with the article, U.S. Terrorism Agency to Tap a Vast Database of Citizens, written by Julia Angwin:

The Fourth Amendment of the Constitution says that searches of “persons, houses, papers and effects” shouldn’t be conducted without “probable cause” that a crime has been committed. But that doesn’t cover records the government creates in the normal course of business with citizens.

Congress specifically sought to prevent government agents from rifling through government files indiscriminately when it passed the Federal Privacy Act in 1974. The act prohibits government agencies from sharing data with each other for purposes that aren’t “compatible” with the reason the data were originally collected.

But the Federal Privacy Act allows agencies to exempt themselves from many requirements by placing notices in the Federal Register, the government’s daily publication of proposed rules. In practice, these privacy-act notices are rarely contested by government watchdogs or members of the public. “All you have to do is publish a notice in the Federal Register and you can do whatever you want,” says Robert Gellman, a privacy consultant who advises agencies on how to comply with the Privacy Act.

As a result, the National Counterterrorism Center program’s opponents within the administration—led by Ms. Callahan of Homeland Security—couldn’t argue that the program would violate the law. Instead, they were left to question whether the rules were good policy.

Under the new rules issued in March, the National Counterterrorism Center, known as NCTC, can obtain almost any database the government collects that it says is “reasonably believed” to contain “terrorism information.” The list could potentially include almost any government database, from financial forms submitted by people seeking federally backed mortgages to the health records of people who sought treatment at Veterans Administration hospitals.

Previous government proposals to scrutinize massive amounts of data about innocent people have caused an uproar. In 2002, the Pentagon’s research arm proposed a program called Total Information Awareness that sought to analyze both public and private databases for terror clues. It would have been far broader than the NCTC’s current program, examining many nongovernmental pools of data as well.

“If terrorist organizations are going to plan and execute attacks against the United States, their people must engage in transactions and they will leave signatures,” the program’s promoter, Admiral John Poindexter, said at the time. “We must be able to pick this signal out of the noise.”

Adm. Poindexter’s plans drew fire from across the political spectrum over the privacy implications of sorting through every single document available about U.S. citizens. Conservative columnist William Safire called the plan a “supersnoop’s dream.” Liberal columnist Molly Ivins suggested it could be akin to fascism. Congress eventually defunded the program.

The National Counterterrorism Center’s ideas faced no similar public resistance. For one thing, the debate happened behind closed doors. In addition, unlike the Pentagon, the NCTC was created in 2004 specifically to use data to connect the dots in the fight against terrorism.

Even after eight years in existence, the agency isn’t well known. “We’re still a bit of a startup and still having to prove ourselves,” said director Matthew Olsen in a rare public appearance this summer at the Aspen Institute, a leadership think tank…

The agency’s best-known product is a database called TIDE, which stands for the Terrorist Identities Datamart Environment. TIDE contains more than 500,000 identities suspected of terror links. Some names are known or suspected terrorists; others are terrorists’ friends and families; still more are people with some loose affiliation to a terrorist….

Mr. Brennan considered the arguments. And within a few days, the attorney general, Eric Holder, had signed the new guidelines. The Justice Department declined to comment about the debate over the guidelines.

Under the new rules, every federal agency must negotiate terms under which it would hand over databases to NCTC. This year, Ms. Callahan left Homeland Security for private practice, and Ms. Libin left the Justice Department to join a private firm.

Homeland Security is currently working out the details to give the NCTC three data sets—the airline-passenger database known as APIS; another airline-passenger database containing information about non-U.S. citizen visitors to the U.S.; and a database about people seeking refugee asylum. It previously agreed to share databases containing information about foreign-exchange students and visa applications.

Once the terms are set, Homeland Security is likely to post a notice in the Federal Register. The public can submit comments to the Federal Register about proposed changes, although Homeland Security isn’t required to make changes based on the comments.

Three Years of WSJ Privacy Insights

The Wall Street Journal is conducting a long-running investigation into the profound transformation of personal privacy in America.

Selected findings:

http://online.wsj.com/article/SB10001424127887324478304578171623040640006.html

US Legal has a concise definition of the “right to privacy.”

According to US Legal in Right to Privacy Law & Legal Definition:

The right to privacy is the right to be let alone, in the absence of some “reasonable” public interest in a person’s activities, like those of celebrities or participants in newsworthy events. Invasion of the right to privacy can be the basis for a lawsuit for damages against the person or entity violating the right.

The right to privacy is not mentioned in the Constitution, but the Supreme Court has interpreted several of the amendments as creating this right. One of the amendments is the Fourth Amendment, which stops the police and other government agents from searching us or our property without “probable cause” to believe that we have committed a crime. Other amendments protect our freedom to make certain decisions about our bodies and our private lives without interference from the government. The due process clause of the 14th amendment generally only protects privacy of family, marriage, motherhood, procreation, and child rearing. http://definitions.uslegal.com/r/right-to-privacy/

We Still Have A Constitution? Right?

Resources:

What type of cybersecurity information does the government want?                                                                     http://killerapps.foreignpolicy.com/posts/2012/10/02/what_type_of_cybersecurity_information_does_the_government_want

Where information leads to Hope. ©                 Dr. Wilda.com

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