Think again: no cones of silence in the surveillance state

In the madcap TV series “Get Smart,” secret agent Maxwell Smart evades surveillance — and archnemesis KAOS — with an array of clandestine gadgets including a shoe phone and the legendary “Cone of Silence.” Americans once laughed at Smart’s privacy-enhancing schemes. But recent revelations about America’s ever-widening surveillance state have stirred many to Think Again about their privacy rights — and pine for their own Cone of Silence.

Originally designed to spy on foreigners and track the foreign correspondence of suspected terrorists, today the National Security Agency digitally frisks U.S. citizens, capturing and storing their communications data for as long as five years. Under the 1978 Foreign Intelligence Surveillance Act and the post-9/11 Patriot Act, the NSA now claims the authority to systematically — and without warrants or court orders — sweep “metadata” into its dragnet, sourced from private telecom and server companies that enjoy immunity from civil liability or criminal prosecution.

The Patriot Act’s author, Jim Sensenbrenner, released a statement saying, “While I believe the Patriot Act appropriately balanced national security concerns and civil rights, I have always worried about potential abuses. … Seizing phone records of millions of innocent people is excessive and un-American.”

Sensenbrenner advocates amending the act to ensure that the secret FISA court system performs its designed role — “to put a check on what the government could do.”

Under pressure to prove Uncle Sam isn’t a Peeping Tom, NSA and FBI officials pulled the curtain back on the ultra-secret surveillance programs. Testifying before Congress this week, they said the programs helped avert at least 50 threats, citing two specifically — though it’s unclear whether they were “helped” by conventional surveillance techniques and gumshoe investigative tip-offs or NSA’s data dragnet. “The encroachment on privacy has been strictly limited by a court-approved process,” President Obama asserted in the NSA’s defense while stressing that communication content can’t be accessed without a court order.

But the sifting and mapping of communications data actually can reveal more about a person than their communications’ content. Newer technologies such as cellphones and the Internet serve up seemingly innocuous but clue-rich metadata — sender and receiver email addresses, times of emails, phone numbers dialed and received, and call length — that can reveal identities, locations and associations without accessing content.

The Washington Post illustrated metadata’s investigative value, explaining how former CIA Director David Petraeus’ mistress was identified despite using anonymous email accounts and hotel WiFi networks. Analysts discovered network IP addresses that traced back to hotels where there was one common guest — Paula Broadwell.

In 2006, Joe Biden pointed out that individual calling data reveals “a pattern about your life that is very, very intrusive. And the real question here is: What do they do with this information that they collect that does not have anything to do with al-Qaida?” Metadata is so powerful that analysts can glean one’s religion, politics, doctors and Internet habits and even uncover a CIA director’s infidelity.

Fearing another 9/11, we’d much rather the government collect our communications data than our remains. But is that a false choice? Are we in fact violating Americans’ privacy while overlooking terrorists among us, especially considering that since October 2011, the Justice Department restricts FBI surveillance of mosques?

Rather than vacuum up exabytes of data from work-at-home moms in Omaha, could the Boston Marathon bombing and the Fort Hood massacre have been prevented by profiling and tracking their perpetrators, the Tsarnaev brothers and Nidal Hasan? Forget Russia’s forewarnings about the Tsarnaevs; how did their online activities — posting terrorist videos, communicating with Islamic extremists, researching pressure-cooker bombs — evade the government’s dragnet while tea party groups and the parents of Fox News reporter James Rosen didn’t?

If unscrupulous Internal Revenue Service officials were willing to share the confidential files of a pro-traditional-marriage group with a gay-marriage group, what’s to prevent rogue NSA officials from raiding the “metadata treasury” for partisan or illicit purposes? How can Americans have faith in congressional oversight when high-level officials use Orwellian doublespeak, lie or invoke the Fifth Amendment?

Our founders understood that in the history of mankind, few have experienced freedom. To “secure the blessing of liberty to ourselves and our posterity,” as the Constitution’s preamble declares, they designed a limited, separated, checked and balanced government that could contain corrupting power. They also protected the press so it would inform us when power was abused, a goal to which the watchdog media must increase their commitment.

Power, it’s been said, attracts the worst and corrupts the best, and concentrated power is prone to abuse, even by the well-intended. The era of the surveillance superstate means there are no Cones of Silence, presenting challenges to our civil society that must be understood and debated by the people.

Think Again — when it comes to protecting our liberties, Americans can’t afford to “miss it by that much,” as CONTROL Agent Smart used to say.

Melanie Sturm lives in Aspen. Her column runs every other Thursday. She reminds readers to Think Again. You might change your mind. She welcomes comments atmelanie@thinkagainusa.com.

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