John Whitehead's Commentary
Bush's War on Privacy Is a War on American Freedoms
The Bush Administration appears to be fighting two wars. The first is the so-called war on terrorism. The second is a more ominous war against the privacy and freedom of the average American.
For years, our government has seemingly operated under the assumption that it has the freedom to spy on virtually everything we do. But this attitude became much more overt after the 9/11 terrorist attacks, when the USA Patriot Act came into being. Signed into law a mere month and a half after terrorists attacked the Twin Towers and the Pentagon, the 140-page monstrosity--a veritable wish list of expanded powers for the FBI and CIA--must have been sitting on a bureaucratic shelf somewhere just waiting to be enacted.
Thankfully, many Americans are starting to view this legislation for what it is--a menace to freedom. "The Patriot Act has been condemned by librarians and by city councils from Los Angeles to Philadelphia," write Jennifer Hahn and Wasim Salfiti in Mother Jones (May/June 2004).
Nevertheless, President Bush continues to voice his support for the Patriot Act. In a recent speech, he announced his desire to ensure that the Patriot Act, parts of which are due to sunset or cease at the end of 2005, not only becomes permanent law but expands the pervasive and sweeping power it gives to the government. In light of President Bush's ardent support for the Patriot Act, let us be reminded of some of its current provisions.
The Patriot Act expands the definition of terrorism by defining "domestic terrorism" as illegal acts "dangerous to human life" that "appear to be intended" to influence government policy by "intimidation or coercion." This vague wording has free speech activists, ranging from environmentalists to anti-abortionists, concerned that their right to protest could easily be classified as a terrorist activity. Furthermore, under this law the Justice Department is allowed, without a hearing, to seize the assets of any alleged domestic terrorists and their supporters.
The Patriot Act changes the standards for search warrants, previously protected by the Fourth Amendment, to allow "sneak and peak searches" in any investigation. Instead of serving the warrant in person, federal agents can now secretly snoop around in your home. You will probably never know they were there.
The Patriot Act also permits "roving wiretaps." This allows the government to tap all phones or computers a suspect might use--including, for instance, those of a neighborhood church or restaurant. Unconnected third parties can easily be swept into this wider net. Moreover, by claiming relevance to a terrorist investigation, government officials can now track your incoming and outgoing calls without a search warrant.
Without demonstrating probable cause as required by the Fourth Amendment, the FBI can obtain a subpoena to search your personal records held by a library, bookstore, church, bank, video store, etc. The subpoena cannot be challenged in court. It also includes a "gag order" to prevent you from ever knowing the subpoena was served. What is most alarming is that no judge or court order is required. Anyone from John Ashcroft down to an FBI field officer can demand the same kind of records simply by issuing what is called a "national security letter." The government agent, not a judge, has only to satisfy himself that the information might be "relevant" to an ongoing investigation.
Incredibly, the FBI seems to think we should make it easier for its government agents by expanding governmental surveillance powers to include information services such as the Internet and e-mail.
On March 10, 2004, the Department of Justice and the FBI filed a joint petition with the Federal Communications Commission, the government agency that regulates the communications industry. They asked the FCC to allow government agencies to tap into Internet and broadband services in the same way that they have been permitted to tap phone conversations through digital and analog phone systems. Look beyond the document's technical jargon and you will see a clear and insidious attempt by the FBI to once again bypass our right to privacy, among other constitutional rights.
Not only does the FBI want the right to tap into and monitor our Internet and e-mail communications, they also want to be assured that communications companies will structure their services in such a way as to make it easy for the government to spy on Americans in the future. The fact that Americans would ultimately end up paying the bill--whether through increased service charges or through tax increases--only adds insult to injury.
But there is no compelling reason that the FBI needs to have its spying over the Internet made easier. Law enforcement can already "wiretap the Internet" using existing commercially-driven technologies. In fact, each year law enforcement makes tens of thousands of requests for business records and other information regarding information services (online accounts and e-mail communications). Therefore, acceding to the FBI's request would be unwise, inappropriate and unnecessary.
Clearly, the FBI--an agency that in recent years has been under constant investigation for alleged corruptness--is not only spying on the bad guys. This is citizen surveillance, pure and simple.
Unfortunately, many Americans are becoming conditioned to relent and sacrifice their freedoms in return for the vaporous promise of greater security. We have repeatedly been asked by our president--whose own administration is under continuing investigations--to put blind faith in the government. And many have done so with patriotic fervor. Perhaps they are more inclined to do so because we are a nation that is constantly besieged by images of war and terror alerts.
But the vital question remains: When government leaders and agencies abuse that trust, invade our privacy and subvert the U.S. Constitution--the hallmark of freedom--should we believe them anymore?
For years, our government has seemingly operated under the assumption that it has the freedom to spy on virtually everything we do. But this attitude became much more overt after the 9/11 terrorist attacks, when the USA Patriot Act came into being. Signed into law a mere month and a half after terrorists attacked the Twin Towers and the Pentagon, the 140-page monstrosity--a veritable wish list of expanded powers for the FBI and CIA--must have been sitting on a bureaucratic shelf somewhere just waiting to be enacted.
Thankfully, many Americans are starting to view this legislation for what it is--a menace to freedom. "The Patriot Act has been condemned by librarians and by city councils from Los Angeles to Philadelphia," write Jennifer Hahn and Wasim Salfiti in Mother Jones (May/June 2004).
Nevertheless, President Bush continues to voice his support for the Patriot Act. In a recent speech, he announced his desire to ensure that the Patriot Act, parts of which are due to sunset or cease at the end of 2005, not only becomes permanent law but expands the pervasive and sweeping power it gives to the government. In light of President Bush's ardent support for the Patriot Act, let us be reminded of some of its current provisions.
The Patriot Act expands the definition of terrorism by defining "domestic terrorism" as illegal acts "dangerous to human life" that "appear to be intended" to influence government policy by "intimidation or coercion." This vague wording has free speech activists, ranging from environmentalists to anti-abortionists, concerned that their right to protest could easily be classified as a terrorist activity. Furthermore, under this law the Justice Department is allowed, without a hearing, to seize the assets of any alleged domestic terrorists and their supporters.
The Patriot Act changes the standards for search warrants, previously protected by the Fourth Amendment, to allow "sneak and peak searches" in any investigation. Instead of serving the warrant in person, federal agents can now secretly snoop around in your home. You will probably never know they were there.
The Patriot Act also permits "roving wiretaps." This allows the government to tap all phones or computers a suspect might use--including, for instance, those of a neighborhood church or restaurant. Unconnected third parties can easily be swept into this wider net. Moreover, by claiming relevance to a terrorist investigation, government officials can now track your incoming and outgoing calls without a search warrant.
Without demonstrating probable cause as required by the Fourth Amendment, the FBI can obtain a subpoena to search your personal records held by a library, bookstore, church, bank, video store, etc. The subpoena cannot be challenged in court. It also includes a "gag order" to prevent you from ever knowing the subpoena was served. What is most alarming is that no judge or court order is required. Anyone from John Ashcroft down to an FBI field officer can demand the same kind of records simply by issuing what is called a "national security letter." The government agent, not a judge, has only to satisfy himself that the information might be "relevant" to an ongoing investigation.
Incredibly, the FBI seems to think we should make it easier for its government agents by expanding governmental surveillance powers to include information services such as the Internet and e-mail.
On March 10, 2004, the Department of Justice and the FBI filed a joint petition with the Federal Communications Commission, the government agency that regulates the communications industry. They asked the FCC to allow government agencies to tap into Internet and broadband services in the same way that they have been permitted to tap phone conversations through digital and analog phone systems. Look beyond the document's technical jargon and you will see a clear and insidious attempt by the FBI to once again bypass our right to privacy, among other constitutional rights.
Not only does the FBI want the right to tap into and monitor our Internet and e-mail communications, they also want to be assured that communications companies will structure their services in such a way as to make it easy for the government to spy on Americans in the future. The fact that Americans would ultimately end up paying the bill--whether through increased service charges or through tax increases--only adds insult to injury.
But there is no compelling reason that the FBI needs to have its spying over the Internet made easier. Law enforcement can already "wiretap the Internet" using existing commercially-driven technologies. In fact, each year law enforcement makes tens of thousands of requests for business records and other information regarding information services (online accounts and e-mail communications). Therefore, acceding to the FBI's request would be unwise, inappropriate and unnecessary.
Clearly, the FBI--an agency that in recent years has been under constant investigation for alleged corruptness--is not only spying on the bad guys. This is citizen surveillance, pure and simple.
Unfortunately, many Americans are becoming conditioned to relent and sacrifice their freedoms in return for the vaporous promise of greater security. We have repeatedly been asked by our president--whose own administration is under continuing investigations--to put blind faith in the government. And many have done so with patriotic fervor. Perhaps they are more inclined to do so because we are a nation that is constantly besieged by images of war and terror alerts.
But the vital question remains: When government leaders and agencies abuse that trust, invade our privacy and subvert the U.S. Constitution--the hallmark of freedom--should we believe them anymore?
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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