Agents followed people around (often clumsily), penetrated campuses and workplaces with informers, tapped phones, opened mail, and drew conclusions about citizens from fragmented reports by party loyalists. In this low-tech police state, the information was “stored on millions of yellowing pieces of paper, typed or handwritten,” The Economist observed in 2007. “These days, data about people’s whereabouts, purchases, behavior, and personal lives are gathered, stored, and shared on a scale that no dictator of the old school ever thought possible.” The magazine published a photograph that seemed positively nostalgic: an East German clerk standing in a narrow aisle between towering shelves, filing stacks of folders bulging with dossiers—on paper.32
There is no telling whether the paper files were more or less accurate than their electronic descendants, but today’s caricatures are more easily disseminated, and some are plainly erroneous, fingering the wrong people and missing the right ones. That happens when digital data are collected on a whim without showing grounds for suspicion, and when government abandons the rigorous discipline imposed by the strictures of probable cause, adversary proceedings, and the dispersal of authority, all of which are designed to enhance the truth-finding process. The immense force of the state to prosecute and imprison individuals, confiscate their property, or merely keep them off airplanes is easily misused unless it is checked and balanced.
What has been colloquially called the no-fly list, for example, is designed to flag dangerous passengers for either close searches and questioning or outright denial of permission to board. But the errors that have occurred, the infliction of penalty without due process or appeal, and the dangerous characters it misses, have made the list a laughingstock. Trying to fix it, the government has been floundering around for years.
CAPPS, the Computer-Assisted Passenger Profiling System (later changed to “… Prescreening System”), relied on private commercial-data providers. A ticket purchaser’s name, address, phone number, and date of birth would be transmitted to the company to confirm her identity, and the company would send back a score on her risk level: green would get normal security checks, yellow would get closer screening, red would be denied boarding and referred to law enforcement. How these scores were determined was an obscure secret, and CAPPS was so flawed that it was later replaced by a supposedly improved system, CAPPS II.
When CAPPS II failed to meet congressionally imposed standards, though, it was supplanted in 2004 by a system called Secure Flight, whose similar flaws led to its suspension in 2006. By 2010 it was being revised and revived. Government operatives seemed less skilled at administering than at naming; they masterfully composed titles that invoked fear or patriotism. Whenever a program provoked protests, you could be sure it would get a new name containing “terrorism,” “prescreening,” “secure,” or another trigger word to soothe or scare you into giving up freedoms to the state as noble guardian of safety.
Luckily, enough Americans still bridled at the privacy invasions that class-action lawsuits were directed against airlines, which—like communications companies—became enablers of government surveillance. JetBlue, it was disclosed, provided personal information on 1.5 million passengers to a defense contractor, Torch Concepts, which was researching data-mining techniques for the army. American Airlines sent private data on 1.2 million customers to four firms competing for a contract with the Transportation Security Administration.
The most potent argument against CAPPS was that it was so often wrong. On five occasions, Senator Edward “Ted” Kennedy was initially rejected for flights because “T. Kennedy” turned up on the list as a pseudonym used by a suspected would-be terrorist. The real Kennedy described this encounter with a ticket agent: “He said, ‘We can’t give it to you. You can’t buy a ticket to go on the airline to Boston.’ I said, ‘Well, why not?’ He said, ‘We can’t tell you.’ ” A supervisor finally intervened and let him board, the senator told a Judiciary Committee hearing.
“Tried to get on a plane back to Washington,” he continued. “ ‘You can’t get on the plane.’ I went up to the desk and said, ‘I’ve been getting on this plane, you know, for forty-two years. Why can’t I get on the plane?’ ”33
Again, a supervisor recognized the veteran legislator and overruled the computerized list, which had been alerting authorities to many other sinister figures. They included Representative Jim Davis, a Florida Democrat; two San Francisco peace activists, Jan Adams and Rebecca Gordon; and numerous Americans named David Nelson, who were put through the wringer whenever they checked in. The real David Nelson on the list was reportedly a white Irishman, but the database flagged a black David Nelson, a Milwaukee Brewers coach, who had to spend at least forty-five minutes before every flight under questioning by local police and FBI agents. A business consultant named David Nelson was pulled off a plane to be interrogated on the ramp. Another David Nelson, a graduate student, got a quizzical look from every ticket agent whose screen flashed some secret message that she could not reveal to him. She invariably made a flurry of phone calls, then the police appeared, intrusive questions were posed, and Nelson may or may not have made his flight. The actor David Nelson from Ozzie and Harriet was stopped a few times, as was a nine-year-old David Nelson from Alaska. Feel safer?
An ACLU lawsuit on behalf of Adams and Gordon dislodged about three hundred pages of government documents, including the admission that names were placed on the list using “necessarily subjective” criteria and “not hard and fast rules.” The number of people on the list rose from just 16 on September 11, 2001, to more than 400 the next day, 594 by that December, about 1,000 a year later and, the ACLU estimated, tens of thousands by 2006. “In November of 2005, the TSA”—the Transportation Security Administration—“indicated that 30,000 people in the last year alone had contacted the agency because their names had been mistakenly matched to a name on the federal government’s watch lists,” the ACLU reported.34
In addition, a database maintained by the Terrorist Screening Center, which alerts local police, border patrol agents, and U.S. consulates when somebody’s name matches one on watch lists, went from about 170,000 individuals in July 2004 to 300,000 by April 2007.35 By the time Umar Farouk Abdulmutallab tried to blow up that Northwest flight to Detroit on Christmas Day 2009, the list contained an unwieldy 550,000 names, with subgroups of 14,000 listed for secondary screening and 4,000 truly designated as “no-fly.”
After the bombing attempt, concern naturally focused on oversights in placing potentially dangerous people on the lists, and top intelligence officials expressed regret over giving in to “pressure” by imposing curbs on adding names.36 The comments seemed to forecast a rapid growth in the no-fly list, but it hadn’t grown quite enough by the following May, when a Pakistani-American named Faisal Shahzad nearly succeeded in flying from Kennedy Airport after parking an inexpertly assembled car bomb that fizzled in Times Square. His name was added to the list only a few hours before Emirates airline personnel, doing their screenings from an earlier version, ignored an electronic notification to check for an update and allowed him onto Flight 202, bound for Dubai. At the last minute, officials spotted him on the passenger manifest that airlines send routinely to Customs and Border Protection just before departure. The plane was still at the gate. Agents boarded and arrested him.
A more widespread problem has been the inclusion of innocents. At least nine U.S. citizens, three of them military veterans, were stranded overseas in 2010 after being placed on the no-fly list while traveling or studying abroad—in Colombia, the United Kingdom, the Virgin Islands, Germany, Egypt, Yemen, and Saudi Arabia. They could not enter the United States by air. One of them, Stephen Durga Persaud, eventually made it by ship from the Virgin Islands to Miami, according to their complaint filed in federal court, then by train to Los Angeles in time to join his wife there for the birth of their second child. Another, Steven William Washburn, spent fifty hours flying from Dublin to Mexico City via Germany, Brazil, and Peru, then hours
more being interrogated by Mexican officials before finally crossing by land to the United States, the country of his birth. But others, more distant or without extensive funds, remained stuck abroad until months after they sued the Obama administration.
The government then agreed to a one-time waiver for each of them, said Ben Wizner of the ACLU, which handled their case. Facing a court challenge, officials seemed willing to defend the no-fly list but not the exclusion of Americans from their homeland. They would be allowed to fly back. But they would not be told if they remained on a watch list that could bar them from leaving, entering, or traveling inside the United States by air. While the litigation continued, those who had not managed to get home by land or sea took the deal and returned, except for two students who chose to avoid the risk. They were halfway through a two-year Arabic course at a Saudi university and could not get the U.S. government to tell them whether they would be permitted to fly back to Saudi Arabia to complete their studies. What had led to listing them and the others—whether error or superficial profiling or unverified intelligence—the government would not reveal, but at least into late 2010, none of the nine had been charged with a crime. They were punished nonetheless, for the ban on flying shackled their lives, and it came without accusation, proof, or the semblance of due process. The men had no idea how to respond to invisible allegations embedded in government databases.
Zealous to deny terrorists enough information to foil this “system,” the federal government denies citizens the basic information to judge its effectiveness or repair its shortcomings. With no scrutiny of how someone gets onto a list, what information contributes to the labeling of people as nefarious characters, and what procedure can be used to correct the record, there are no brakes to impede innocent error, political targeting, and the disruption of lives based on ethnic or religious identity. Without a chance to see the collected information and what agents conclude from it, neither the Congress nor the courts nor the public can tell whether innocents are being pursued, whether the precious resources of law enforcement are chasing around fruitlessly. After investigating itself, the Department of Homeland Security found its procedures to remove names listed incorrectly to be wholly inadequate.
A healthy correction by the judicial branch stopped the executive branch in 2007 from using a severely flawed database to ferret out illegal immigrants. The plan required employers to submit Social Security numbers provided by their employees for verification against a government master file. It seemed straightforward enough. The government would issue “no-match letters” when workers provided phony numbers, and employers would be required to fire them within ninety days or face prosecution. But the database was a mess. Sampling showed that false alerts would have been generated on many legal residents and U.S. citizens, for the 435 million individual records held by the Social Security Administration contained 17.8 million with errors, according to the agency’s own inspector general, including 12.7 million for native-born Americans. The Bush administration’s program, which would have sacrificed the well-being of law-abiding citizens as collateral damage to detect undocumented aliens, was halted by a federal judge. President Obama’s administration dropped the no-match rule after he took office.37
In response to concerns about innocents being wrongly targeted, one might argue that it’s the partial picture that leads to mistakes and that more intrusive surveillance would provide more complete profiles and reduce the error rate. Technology is bound to improve, mining data more reliably, connecting dots more accurately. It’s an alluring prospect—that the pieces of ordinary life can be “aggregated,” as intelligence types say, into revealing mosaics. But having accurate raw data solves only the first of three basic problems that concern Jim Dempsey of the Center for Democracy and Technology. There can also be false inference. “You can have perfect data,” he says, “but perfect data plus false inference equals bad outcome.” Finally, there can be intentional abuse and political monitoring: “He opposes the war in Iraq, he must be a security threat.” This has certainly been the mentality of law enforcement when monitoring peace groups and policing demonstrations.
So the mosaics still have to be interpreted, and interpretations of such material have been notoriously bizarre. When intelligence files are eventually released—as were those kept on George Orwell during a dozen years of surveillance by England’s Special Branch—their portraits look more like Picassos than photographs, with body parts rearranged unrecognizably. A sergeant in Scotland Yard, reporting that Orwell “dressed in a Bohemian fashion both at his office and in his leisure hours,” labeled him “a man of advanced communist views” just three years before the writer deftly skewered communism in his parable, Animal Farm. This “old and forbidding dance, the one between the watchers and the watched,” The New York Times observed, produces dossiers that are “nearly always perspicacious—not about the subjects being watched but about the fears of the watchers. This is something Orwell understood perfectly well, how fear enhances perception, but also corrupts it.”38
The fears of the watchers thrive in an institutional police-and-intelligence culture that rewards suspicion as smart, derides innocent explanations as naïve, and views much of the public as criminal. This is the culture that could see a fantasy Spain vacation, researched online by Brandon Mayfield’s middle-school daughter, as evidence of his involvement in the Madrid train bombings. This is the culture that could interpret a deranged tenant’s mad scribblings as diagrams of an airbase and a military hospital slated for attack, and could prosecute as a “sleeper cell” the men in Detroit who had the misfortune, two years later, to rent the same apartment where the drawings had been left. We need cops, spies, and intelligence analysts, but we don’t need to give them excessive power. When they jump to conclusions, they jump on people’s heads, which is especially easy in a digital age.
THE SURVEILLANCE-INDUSTRIAL COMPLEX
If technology were perfect, surveillance comprehensive, and error eliminated, arguments other than inaccuracy would be needed to protect zones of privacy from electronic snooping. Or, if information cannot be kept private in this digital age, at least its use needs to be controlled. “Privacy advocates can no longer rely on inefficiency for their privacy,” Dempsey says. “We need a set of laws and policies that create a web of protections.”
But how to make the case? We have no Soviet system any longer as a totalitarian model to avoid, no Orwell to chill us with ironic fantasies. Most of us are constitutionally illiterate and complacent about our liberties. We have few jurists eloquent enough to tap that deepest well of patriotism: the resonant devotion to founding principles.
On nearly every issue, we have to reach back decades for inspiring admonitions. Most judges don’t write well, it’s sad to say, and more significantly, as one judge told me, Reagan and the two Bushes appointed men and women to the bench who “don’t believe that the primary function of federal courts is to protect individual rights.” Rarely now do we hear thundering reminders of basic truths equivalent to the warning Justice Jackson delivered in 1949, writing in a dissent, that the Fourth Amendment’s provisions “are not mere second-class rights but belong in the catalog of indispensable freedoms.… But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court.”39
And so, there is virtually no enforcement at all, not in vast areas of modern life. Most personal electronic information is in private hands, and savvy entrepreneurs manage it for profit by selling the data to retailers of all stripes. The government can buy it, too, and since 9/11 various proposals for using it have generated a blizzard of collection programs. Total Information Awareness, for instance, was to be a Pentagon sweep of credit-card and other information in an effort to detect significant patterns. It had a creepy motto, “Scientia est potentia” (Knowledge is power), and a logo depicting the globe overlooked by the all-seeing eye of God atop a pyr
amid (from the Great Seal of the United States). Trying to save both its initials and its purpose, its backers changed its Big Brotherish name to Terrorism Information Awareness. It crossed a line, generated an outcry, and was suspended.
With less fanfare, however, the FBI continues to amass vast amounts of data on people who are not suspected of any wrongdoing, according to official documents obtained by Wired magazine under a Freedom of Information Act request. These include 1.5 billion records from government and corporate databases—Avis car rentals, Wyndham Worldwide hotels, casinos, airlines, and financial institutions, for example—adding up to a Total Information Awareness program under a less scary name: the National Security Analysis Center.40
What the ACLU calls the surveillance-industrial complex is run by retailers, communications firms, financial institutions, and other companies that collect information to process your transactions, evaluate your credit, enable screening by your potential employers, and analyze your buying preferences to target you for marketing. This creates a rich reservoir of data, which one blue-ribbon panel of experts saw as indispensable to police and intelligence agencies.
“Today, the private sector is on the frontline of the homeland security effort,” wrote the panel, assembled by the Markle Foundation of New York in 2003. “Its members are holders of data that may prove crucial to identifying and locating terrorists or thwarting terrorist attacks, and stewards of critical infrastructure and dangerous materials that must be protected. Thus, the private sector is the source of information that is essential to counterterrorism.”
The Rights of the People Page 35