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August 2004

The Surveillance-Industrial Complex:How the American Government IsConscripting Businesses and Individuals in the Construction of a Surveillance Society

The Surveillance-Industrial Complex:How the American GovernmentIs Conscripting Businesses andIndividuals in the Constructionof a Surveillance Society

Published August 2004

Written by Jay Stanley

THE AMERICAN CIVIL LIBERTIES UNION is thenation’s premier guardian of liberty, working dailyin courts, legislatures and communities to defend

and preserve the individual rights and freedomsguaranteed by the Constitution and the laws of theUnited States.

OFFICERS AND DIRECTORSNadine Strossen, PresidentAnthony D. Romero, Executive DirectorKenneth B. Clark, Chair, Executive Advisory CouncilRichard Zacks, Treasurer

National Headquarters125 Broad Street, 18th Fl.New York, NY 10004-2400(212) 549-2500

www.aclu.org

Table of Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Recruiting Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

"Watch" programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Citizen vigilance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Recruiting Companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Voluntary sharing of data . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Purchasing data on the open market . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12

Plentiful legal powers to demand private-sector data . . . . . . . . . . . . . . . . . . . .12

Building in surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

The Patriot Act: Drafting industry into the government’s surveillance net . . . . .16

Enlistment in the government’s surveillance web hurts business . . . . . . . . . . .21

Mass Data Use, Public and Private . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

Data mining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23

Data aggregators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25

The advantages of private surveillance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

Pro-Surveillance Lobbying . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27

Six Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29

THE SURVEILLANCE-INDUSTRIAL COMPLEX

Not so long ago, our lives were mostlyrecorded on paper. From the doctor’soffice to the supermarket, any record of

where we had gone or what we had done couldonly be tracked by looking at paper and ink.Today, however, the most intimate details ofour personal habits and behaviors are nowcomputerized. On millions of hard drives andmicrochips, more and more of what we doevery day is recorded – not only by the govern-ment, but also by corporations. And as thisreport shows, when it comes to preserving ourprivacy, that is increasingly a distinction with-out a difference.

This special ACLU report, the 12th in ourseries on civil liberties since 9/11, paints asobering picture of just how little control wehave over our information today. It shows howinformation-age technology, anemic privacylaws and soaring profits have all combined toendanger our privacy rights to a point neverbefore seen in our history.

After you read this report, you will see thatreform is clearly needed.

Americans from across the political spectrumunderstand that “the right to be left alone” iscentral to our constitutional democracy – that asecure sense of personal privacy is vital to pre-serving the openness of American life, and toprotecting the boundless creativity, innovationand prosperity for which we are known aroundthe world.

If we allow the fear of terrorism to create a newindustrial base for surveillance technology,unfettered by reasonable and effective privacyconstraints, these special characteristics of theAmerican way of life will wither on the vine.

This report is packed with fascinating and fright-ening details about how the relationship betweengovernment and big business is changing beforeour eyes – or, all too often, behind our backs.Brought together, these details add up to a trendthat would be almost hard to believe if it werenot so well documented.

We at the ACLU are not sitting passively as thegrowth of a “surveillance-industrial complex”continues. I hope that you will read this report,and then join us to help stop it.

ANTHONY D. ROMEROExecutive DirectorAmerican Civil Liberties Union

Foreword

Introduction

Acting under the broad mandate of the“war” on terrorism, the U.S. securityestablishment is making a systematic

effort to extend its surveillance capacity bypressing the private sector into service to reporton the activities of Americans. These efforts,which are often costly to private businesses,run the gamut from old-fashioned efforts torecruit individuals as eyes and ears for theauthorities, to the construction of vast comput-erized networks that automatically feed thegovernment a steady stream of informationabout our activities.

Public-private surveillance is not new. Duringthe Cold War, for example, the major telegraphcompanies – Western Union, RCA and ITT –agreed to provide the federal government withcopies of all cables sent to or from the UnitedStates every day – even though they knew itwas illegal. The program, codenamed“Operation Shamrock,” continued for decades,coming to an end only with the intelligencescandals of the 1970s.

But even such flagrant abuses as OperationShamrock pale in comparison to the emergence

of an information-age “surveillance-industrialcomplex.” The ongoing revolution in com-munications, computers, databases, camerasand sensors means that the technologicalobstacles to the creation of a truly nightmarish“surveillance society” have now been over-come. And even as this dangerous new poten-tial emerges, our legal and constitutional pro-tections against such intrusion have beeneroded to a frightening degree in recent yearsthrough various court rulings as well as lawslike the Patriot Act.

The ACLU has documented the confluence ofthese two trends in a separate report.1 Butthere is a third crucial obstacle that theAmerican security establishment is seeking toovercome in its drive to access ever moreinformation about ever more people. Thatobstacle is the practical limits on theresources, personnel and organization neededto extend the government’s surveillance powerto cover hundreds of millions of people. Therewill always be limits to the number of person-nel that the U.S. security state can directlyhire, and to the “ratio of watchers to watched.”This is the obstacle that the U.S. securityestablishment seeks to overcome by enlistingindividuals and corporations as auxiliarymembers of its surveillance networks.

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A n ACLU R e p o r t

THE SURVEILLANCE-INDUSTRIAL COMPLEX:

How the American Government is Conscripting Businesses and Individuals in the

Construction of a Surveillance Society

The advantages of privatized surveillance

Besides allowing the government to overcomethe practical limits on its resources (what politicalscientists call “state administrative capacity”),the technique of folding private individualsand organizations into a government’ssurveillance network has several advantagesfor the government:

• It gives the government access to private-sector databases. Most of the interactionsand transactions in Americans’ lives arenot conducted with the government, butwith corporations and other private enti-ties, who therefore hold most of the detailsof Americans’ lives – including much ofwhat is private and important to them.

• It lets the government create a system of“distributed surveillance” or “swarmintelligence” in which scattered, individ-ual, independent sources of informationare brought together to create a big pic-ture that the government could never con-struct directly.

• It shifts costs from government to the pri-vate sector by forcing companies to takeexpensive steps such as hiring additional staffto meet information collection and analysismandates – in effect, imposing a hidden“surveillance tax” on those companies.

• It creates constant uncertainty wheneverpeople are in a situation where an inform-ant might be present, enormously amplify-ing the effect of government surveillanceon individual behavior and psychology.

• It offers what is often a path of least resist-ance to working around privacy laws. Ourlaws have historically protected information

held by an individual, while informationheld by third parties was either assumed tobe innocuous or protected by professionalcodes of confidentiality. But today, third-party information has become far morecomprehensive and significant.

• It allows the government to carry out pri-vacy-invading practices at “arm’s length”by piggy-backing on or actually cultivat-ing data collection in the private sectorthat it could not carry out itself withoutserious legal or political repercussions.

In this report, we look at many aspects of thistrend – drawing together and setting in contextmany stories that in isolation might seem farless significant. The elements we examine are:

• Recruitment and exhortation of individuals toserve as eyes and ears for the authorities.

• Government recruitment of corporations andother private-sector organizations by forcingthem either to turn over their customer data-bases, gather and store information in waysuseful to the government or join regularizedsystems for reporting on individuals.

• Growing government partnerships with pri-vate-sector companies that specialize inbuilding dossiers about individuals.

• Lobbying by companies in favor of increasedsurveillance.

The privatization of government functions hasalways been a popular way of doing business in

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The privatization of government functions has always been a popular wayof doing business in the United States,and surveillance is no exception.

the United States, and surveillance has been noexception. There is a long history of cooperationbetween government security agencies and pri-vate-sector surveillance programs, from private“detective” agencies like the Pinkertons, whichhelped employers battle the labor movement inthe 19th century, to the “corporate officials, laborspies, super-patriots, amateur detectives andassorted vigilantes” who worked with the gov-ernment to combat radicalism after World War Iand remained active in various forms rightthrough the last years of the Cold War.2

But nothing in our past compares to theefforts at distributed mass-surveillance thatare now underway, which combine the long-standing police impulse to expand private-sector information sources with awesomenew technological capabilities for vacuumingup, storing and keeping track of vast oceansof information.

Recruiting IndividualsHomeland security starts at home.– U.S. Citizen Corps

In January 2002 the Justice Departmentannounced the creation of a program calledthe “Terrorism Information and PreventionSystem,” or TIPS. Billed as “A national sys-tem for concerned workers to report suspi-cious activity,” the program would haverecruited “millions of American truckers, let-ter carriers, train conductors, ship captains,utility employees and others” as governmentinformants.3 The proposed scope of this proj-ect was stunning – it would have recruited, inits pilot program alone, one million inform-ants in just 10 cities – or one in every 24Americans living in those cities.4 Many ofthose targeted for inclusion in the scheme

were workers with access to Americans’homes – utility workers, letter carriers andcable technicians – who were to report to thegovernment anything that they considered an“unusual or suspicious activity.”

The recruitment of informants for particularinvestigations has long been a key tool of lawenforcement, but only under the most oppres-

sive governments have informants ever becomea widespread, central feature of life. The EastGerman Stasi, for example, not only employed91,000 full-time workers, but also recruitedfrom among the citizenry more than 170,000non-professional informants, or as many as onein every 50 citizens, to spy and report on theirfellow citizens. Stasi agents even used black-mail and other pressure tactics to get people tospy on their own family members. The resultwas to create a pervasive sense of mistrust thatprevented citizens from sharing their complaintswith each other, gaining strength from connect-ing with others of like mind and challengingthose who were in power.

Few believe that the U.S. will ever become astate like East Germany. But the TIPS propos-al was rightly met by a storm of outrage, andthe government quickly moved to eliminate theinclusion of workers who visit Americans’homes. Even in its reduced form, however,Congress shut it down.

But while TIPS proved short-lived, it was onlythe most blatantly offensive and direct exampleof an idea – organizing private individuals toincrease the government’s surveillance capacity– that continues to live on. A massive effort isunderway to turn regular Americans into

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A massive effort is underway to turnregular Americans into untrained government monitors.

untrained government monitors who, pressed byconstant urgings for vigilance and suspicion andlacking the training or accountability of profes-sional law enforcement officers, are asked toreport to the authorities anything they think is“unusual or suspicious.”

Some directives emanating from the govern-ment are undoubtedly beneficial, such asinstructions on how to prepare for civil emer-gencies, and certainly there is nothing wrong

with the authorities making rational requestsfor citizens’ help. But the new warnings areenormously vague and broad, yet frighteningand intense. Unlike “wanted” posters andother traditional public appeals, they are basednot on crimes that have already been commit-ted, but on the prospect or suspicion that anindividual might be planning something bad.Many “suspicious behaviors” cited by theauthorities have no rational or proven relation-ship to terrorism – and in fact, it is doubtful thatthere are such things as clearly defined behav-ioral predictors of terrorism.

These kinds of broad directives leave a muchwider scope for racial profiling and paranoiadirected at anyone who is different or stands out– and are likely to generate large numbers offalse positives that will swamp any useful infor-mation that might be obtained. In addition, noneof these programs can be viewed apart from thelarger context: a world where government hasinterrogated, fingerprinted and detained thou-sands of people based on their ethnicity.

The government’s constant exhortations tomicro-vigilance, if taken to heart, will create anatmosphere of conformism and mistrust that

encourages abuses, divides Americans from oneanother and casts a chill over the traditionallyfreewheeling nature of American life.

“Watch” programs

When President Bush called for the creation ofTIPS in his 2002 State of the Union address, itwas just one element of a larger program calledthe “Citizen Corps” that is aimed at givingAmericans a chance to get directly involved inhomeland defense. Bush also called for“Neighborhood Watch” programs to be dou-bled in number and expanded beyond their tra-ditional role of deterring and detecting house-hold burglary to “make them more attuned topreventing terrorism.”5 The means for carryingthis out is a push to encourage the formation of“Citizen Corps Councils” around the nation.Citizen Corps materials urge NeighborhoodWatch participants to “train family members onidentifying suspicious behaviors that couldindicate terrorist activity.”6

The Citizen Corps home page still proclaimsthat its mission is to “harness the power ofevery individual through education, training

and volunteer service to make communitiessafer, stronger and better prepared” for terror-ism and other threats.7 And indeed, thoughCongress may have ordered TIPS shut down,the government continues to run several pro-grams that are very close in nature to TIPS.

• Marine Watch programs. AMaine programdubbed “Coastal Beacon,” recruits fishermenand members of the general public to keep awatch out for “suspicious activity.”8 The fact

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Many “suspicious behaviors” cited by theauthorities have no rational or provenrelationship to terrorism.

“Be our eyes and ears so we can calmyour fears.”

– River Watch slogan

that this program does exactly what Congressbanned under TIPS was confirmed byPresident Bush himself, who declared CoastalBeacon “one of the most innovative TIP [sic]programs in the country.”9 An Ohio programcalled “Eyes on the Water” urges boaters toreport “unusual behavior when you see it.”As one Coast Guard officer told a reporter, “Aguy who is not wearing the right gear or fish-ing in an unusual location – let us know aboutit.” A program in Michigan called “RiverWatch” has as its slogan, “Be our eyes andears so we can calm your fears.”10

• Highway Watch. Another TIPS programthat has outlived TIPS is “HighwayWatch,” under which truck drivers aretaught to recognize “highway dangers” andreport them to a central dispatch center.The program has a heavy homeland securi-ty element – indeed, it is being funded bythe Department of Homeland Security(DHS). A program fact sheet boasts thatthe more than three million truck drivers onthe roads make up “a potential army ofeyes and ears to monitor for securitythreats.” Not only are drivers “naturallyvery aware of suspicious activity andbehavior,” but “truck drivers are every-

where – ports, airports, malls, bridges, tun-nels – thus giving greater range to home-land security observation efforts.”11

• “CAT Eyes.” A program called“Community Anti-Terrorism TrainingInstitute,” or “CAT Eyes,” is working to“educate citizens in the civilian communityto be effective eyes and ears for potentialterrorist activities.” Embraced by policedepartments from across the eastern U.S., itaims for the formation of hierarchicallystructured “neighborhood block watches”including “Neighborhood Coordinators,”“Block Captains” and “Block Watchers,”each of whom “acts as eyes and ears for lawenforcement and reports any suspiciousactivity.” The program’s motto is “watchingAmerica with pride not prejudice.”12

• Real Estate Watch. Police outsideCincinnati have set up a pilot program inwhich the police train real estate agents“how to be observant.” The realtors keeptheir eyes open for suspicious activity asthey make their rounds, based in part onalerts provided by the police, and reportback anything suspicious they see.13

• Florida’s TIPS. In a direct local imitationof the original TIPS concept, police inOrange County, Florida are planning totrain emergency personnel, cable workersand other public and private workers to lookfor and report evidence of terrorism, drugtrafficking, or child pornography in privatehomes. Overseen by Florida state policeofficials, the program’s brochure originallyincluded an element of explicit racial profiling.Though that was removed, the program isstill underway, leaving homeowners towonder if anything in their home mightdraw suspicion whenever a cable or utilityworker comes in to do a repair.14

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• Other State Reporting Programs. Manystates and localities appear to have citizenreporting programs in place. New York,for example, has instituted a “StatewidePublic Security Tips Hotline” the publiccan use to report “suspicious or unusualbehavior” to the police. “In protecting ourhomeland security,” declared a September2002 news release on the program, “thepublic should consider themselves part-ners with our local, state and federal lawenforcement agencies.” All tips, howeverraw, “will be cross-referenced through

federal, state and local databases.” Thereis no mention of whether the name of aninnocent person who is the subject of a tipwill ever be purged from the record.15

In fact, it is far from clear what any of these pro-grams do with information about “suspicious”individuals that they receive – how reports arerecorded, shared and stored in domestic intelli-gence or law enforcement databases or what isdone to ensure that innocent individuals who arethe subjects of raw suspicions and rumors willnot have a permanent black mark associated withtheir names in some government database.Experience has shown that such safeguards arerarely created by security agencies on their ownwithout intense outside pressure.

A disturbing sub-genre of TIPS-like programsare those run by the military. They include:

• “Eagle Eyes.” This program is billed as “ananti-terrorism initiative that enlists the eyesand ears of Air Force members and citizensin the war on terror.” In addition to a tele-phone tip line, the program offers training in

how to detect terrorist activity. “Anyonecan recognize elements of potential terrorplanning when they see it,” boasts the pro-gram’s Web page. Things to watch forinclude “People who don’t seem to belongin the workplace, neighborhood, businessestablishment or anywhere else. . . . If a per-son just doesn’t seem like he or she belongs,there’s probably a reason for that.”16

• “Talon.” According to an internal memoobtained by Wired News, this Pentagon data-base contains “raw, non-validated” reports of“anomalous activities” within the United States,and provides a mechanism to collect and sharereports “by concerned citizens and militarymembers regarding suspicious incidents.”17

The Pentagon says the purpose of the Talon sys-tem is to protect Defense Department propertyand personnel. Of course, since a terrorist couldtry to attack those targets just like any others inthe U.S., there is no limit to the amount ofdomestic surveillance that could be justified bythat rationale. Interestingly, the same rationale of“base protection” was given when it was discov-ered that the Army was involved in the construc-tion of dossiers about millions of U.S. airline

passengers (see p. 10). All this in a contextwhere, as one expert puts it, the military is actingto “break down long-established barriers to mili-tary action and surveillance within the U.S.”18

Citizen vigilance

Beyond these organized watch programsare more diffuse campaigns of “citizenawareness” featured on government Websites around the nation. These campaigns

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A disturbing sub-genre of TIPS-like programs are those run by the military.

Privacy safeguards are rarely created bysecurity agencies on their own withoutintense outside pressure.

urge Americans to be suspicious, and toreport to the authorities anyone who fits along list of suspicious characteristics.State and local governments have posted orlinked to reams of materials that one wayor another warn and instruct citizens “howto be vigilant.”19

Examples of this kind of material abound:

• A flyer from the Maryland State Policeasks citizens to be alert for “anyone whodoes not appear to belong.”20

• The residents of Lucas County, Ohio, andmany other localities around the countryare admonished in materials prepared bythe DHS to look for “persons not fittinginto the surrounding environment,”including any “beggar, demonstrator,shoe shiner, fruit or food vendor, street

sweeper, or a newspaper or flower vendornot previously recognized in the area,”who, it is explained, could be a terroristin disguise.21

• Messages on electronic highway signs inVirginia and Maryland list toll-free phonenumbers and ask drivers to “Report Infoon Terrorism” and “Report SuspiciousActivity” – solicitations that leave manycitizens puzzled over just how they aresupposed to act on them.22

• A widely distributed version of DHS’scolor-coded terrorism “HomelandSecurity Advisory System” tells citizensto be “watchful for suspicious activities.”23

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The Citizens’Preparedness Guide

A significantexample of citi-zen “lookout lit-erature” is a“ C i t i z e n s ’P re p a re d n e s sGuide” publishedby the federalCitizen Corps.After an intro-duction in whichAttorney General

John Ashcroft declares that “yourcountry has never needed you more,”the guide urges Americans to “be alertas you go about your daily business”and “learn the normal routines” inorder to “help you to spot anything outof place.” Citizens should be “on thelookout” for suspicious activities “inyour neighborhood, in your workplace,or while traveling” – in short, every-where. When it comes to the Internet,famous for being home to every imagi-nable activity, viewpoint, hobby andfetish, Americans are told to “reportunusual activities to the authorities.”

In addition to directing Americans to“keep your yard clean” and “pruneshrubbery,” the guide asks citizens tocontact the FBI “immediately” if they“observe a pattern of suspicious activi-ty,” including “someone unfamiliar toyou loitering in a parking lot.”

Concludes the guide, “Homeland secu-rity starts at home.”24

Predictably, the tip centers that havebeen set up are already attractingmalicious tips.

• A Coast Guard Web site lists “suspiciousactivity” that includes the distribution of“Anti-American pamphlets, or flyers”25 –certainly an invitation to abuse, consideringhow broadly the label “Anti-American” hasbeen applied in the past. (In addition, it isunlikely that a genuine terrorist planning anattack would call attention to himself byleafleting beforehand.)

Implicit racial profiling

Predictably, the tip centers that have been set upare already attracting malicious tips from individ-uals “turning in” neighbors they dislike, tipsabout strangers engaging in “un-American activ-ity” and of course many reports based on racialprofiling. “We’ve gotten calls from peoplewho’ve seen someone who looks Middle Eastern

in the store or library, maybe on the computer,” aVirginia police official told the Chicago Tribune.26

In fact, the generality of many of these warn-ings and reminders may be explained by animplicit element of racial profiling. Does theCoast Guard really want to receive reports onevery “guy who is not wearing the right gearor fishing in an unusual location”? Or justwhen that “guy” happens to be of MiddleEastern appearance?

Truckers anxiously watching the highways,boat owners watching the shores, individualsconstantly urged to watch for people who don’tfit in – together it adds up to a vision very closeto what was envisioned under the supposedlydiscontinued TIPS program.

Recruiting CompaniesWe regret to inform you that we have decidedthat it is not in our best interest to continueyour banking relationship with us.– Letter from Fleet Bank to U.S. citizen Hossam Algabri

As disturbing as the government-sponsoredinformer programs are, even more alarming is thegovernment’s recruitment of companies and otherindependent organizations into its growing sur-veillance machinery. The Privacy Act of 1974,although riddled with exceptions and loopholes,does restrict the ability of law enforcement agen-cies to maintain dossiers on individuals who arenot suspected of involvement in wrongdoing.27

But the government is increasingly circumvent-ing those restrictions simply by turning to privatecompanies, which are not subject to the law, andbuying or compelling the transfer of private datathat it could not collect itself.

A long history of pr ivate-sector survei l lance

The U.S. government actually has a long histo-ry of turning to the private sector for help ingathering information on individuals.Examples include:

• The Western Goals Foundation. In LosAngeles, thousands of files on activists of allkinds were ordered destroyed in the wake ofthe revelations of domestic spying in the1970s. But in 1983 these raw intelligencefiles were discovered hidden away in thegarage of an LAPD detective, who had beensharing them with the Western GoalsFoundation, a Cold War anti-communistgroup that used the files to build privatedossiers on progressive political activistsaround the nation. Western Goals acted as a

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The government is increasingly circumventing those restrictions simply by turning to private companies.

private “clearinghouse” of dossiers on polit-ical activists from police agencies in differ-ent states – collecting, disseminating and“laundering” the sources of that informa-tion.28 The group circulated information –much of it false and defamatory – aboutthose activists not only to local police depart-ments, but also to numerous federal policeagencies including the Secret Service, theFBI, the State Department and the CIA.29

• The “San Diego Research Library.” Inanother case, a retired military intelligenceofficer named Ralph H. van Deman estab-lished a legendary data collection facility inCalifornia, which kept dossiers on religious,labor, civil rights and other activists. For over30 years beginning in 1929, this “private”facility, operated with the support of privatedonors, the state of California and the Army,maintained 200,000 files based in part onconfidential information provided by volun-teer informers. The facility regularlyexchanged material with federal and stateintelligence agencies, and thus served as aquasi-governmental intelligence agency.30

• Operation Shamrock. Perhaps the ulti-mate example was the Cold War programcalled “Operation Shamrock,” in whichthe major U.S. telegraph companies“secretly turned over to the NSA, everyday, copies of all messages sent to or fromthe United States.”31 As described byreporter and author James Bamford, theprogram began in 1945 when the presi-dents of the telegraph companies allagreed to participate after the governmentappealed to their patriotism. They tookpart knowing that their actions were ille-gal and against the uniform recommenda-tions of their own corporate attorneys.32

When the carriers computerized theiroperations in the 1960s, OperationShamrock gained the ability to conduct

keyword searches through each day’s traf-fic. At that point, the NSA increasinglybegan to scan the nation’s telegraphsagainst long lists of surveillance targetsprovided to the NSA by other securityagencies – including American anti-warand civil rights protesters, and even suchgroups as the Quakers.33

The potential is greater today

But even abuses like Operation Shamrockpale in comparison to what is possible withtoday’s technology:

• Computer hardware and software is farmore sophisticated. Unwieldy tape reelshave been replaced by swift and massivehard drives, and software today can, withincreasing reliability, transcribe spokenwords or analyze meaning based on thecontext of a communication.

• More business is conducted electronical-ly. Because of the convenience of cellphones, the Internet and other innovations,the amount of business that Americansconduct via electronic communication hasvastly increased.

• Corporations are gathering more datafor their own reasons. Companies havediscovered that information about cus-tomers has enormous cash value – andnow have on hand cheap new technolo-gies for collecting, storing and sharingsuch data. Americans are increasinglyfinding themselves pestered for personal

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The threat posed by government collection of third-party information is fargreater today than it would have been inthe 1950s, or even the early 1990s.

details at every turn, or routinely trackedthrough stratagems like supermarket loy-alty cards – all for the purpose of buildinga financially valuable record of theirlifestyle and habits.34

The result of these developments is that thethreat posed by the systematic government col-lection of personal information held by corpo-rations and other third parties is far greatertoday than it would have been in the 1950s, oreven the early 1990s.

Many options for accessing private data

The bottom line is that the private sector istracking more and more of our activities for itsown purposes, and the government is free toleverage this private collection as a way ofextending its own powers of surveillance. Thegovernment has an array of options for access-ing third-party information. It can:

• Αsk for data to be shared voluntarily.

• Simply buy information.

• Demand it, using legal powers granted bythe Patriot Act and other laws.

• Use laws and regulations to dictate howprivate-sector data is handled and stored inorder to increase its surveillance value forthe government.

• Create regularized systems for standingaccess to records of private activities.

Corporate compliance with government data-surveillance efforts ranges from unwillingresistance to indifferent cooperation to eagerparticipation to actual lobbying of the govern-ment to increase such activities. But with arange of options at its disposal, the governmentcan acquire a rich stream of information aboutprivate activities from any source. These tech-niques add up to a startling advance in govern-ment monitoring of American life. Let usexamine each of them.

Voluntary sharing of data

To obtain information about individuals’ activ-ities, the government often need do no morethan ask. Many companies are willing to handover the details of their customers’ purchasesor activities based on a simple request from theFBI or other authorities. Some companiesbelieve they are being patriotic; others may beafraid to turn down “voluntary” requestsbecause they fear regulatory or law enforce-ment scrutiny of their own activities; othersmay simply be eager to please.

Multiple airlines have admitted turning overthe records of their customers’ travels to thegovernment. In each case, the information wasturned over not to help the government solve aparticular crime or track a particular suspect,but in order to examine each traveler’s recordsin the hopes of identifying terrorists by detect-ing “suspicious” patterns in his or her travels –in effect, turning every traveler into a suspect(see discussion of data mining, p. 23).

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To obtain information about individuals’activities, the government often need dono more than ask.

Companies may be afraid to turn down“voluntary” requests because they fearregulatory or law enforcement scrutinyof their own activities.

• At the request of an official now at DHS,the airline JetBlue gave a Pentagon sub-contractor more than 5 million passengerrecords, which were combined withdetailed personal files on each passengerpurchased from a “data aggregator” com-pany called Acxiom.35

• When the JetBlue story broke, NorthwestAirlines said it had not shared its passen-gers’ records, but a few months later it wasdiscovered that in fact, it had given mil-lions of passenger records to NASA.36

• In April 2004, American Airlines admittedthat it, too, had shared passenger records(1.2 million of them) with the TSA andfour research companies.37

• In May 2004 the nation’s largest airlines,including American, United andNorthwest, also admitted giving millionsof passenger records – up to a year’s worth– to the FBI after the 9/11 attacks.38

Other known recent examples of “voluntary”data sharing with the government include:

• Scuba shops. In May 2002 the ProfessionalAssociation of Diving Instructors voluntarilyprovided the FBI with a disk containing thenames, addresses and other personal infor-mation of about 2 million people, nearlyevery U.S. citizen who had learned to scubadive in the previous three years.39

• Colleges and universities. A 2001 surveyfound that 195 colleges and universitieshad turned over private information onstudents to the FBI, often in apparent vio-lation of privacy laws; 172 of them did noteven wait for a subpoena.40

• Travel companies. A 2001 survey of traveland transportation companies found that 64

percent had provided customer or employeedata to the government, many of them in vio-lation of their own privacy policies.41

These are only some of the examples that havecome to light; as the airline examples indicate,companies that have shared information areoften far from open about it.

InfraGard – a corporate TIPS program?

A more systematic example of voluntary coop-eration is a partnership between the FBI andprivate corporations called “InfraGard.” Thisprogram is aimed at encouraging “theexchange of information by the governmentand the private sector members” to protectagainst terrorism and other threats to thenation’s infrastructure.

The program has more than 10,000 membersorganized into 79 local chapters; the list of par-ticipating companies is kept secret. Memberswishing to participate fully must undergo asecurity check and obtain clearance by theFBI.42 The Cleveland Plain Dealer described itas a “a vast informal network of powerfulfriends,” a “giant group of tipsters” created bythe FBI under a “philosophy of quietly work-ing with corporate America” in order to “funnelsecurity alerts away from the public eye andreceive tips on possible illegal activity.”43

It is not clear what kind of information sharing takesplace under InfraGard. The program was created asa means of stopping cybercrime, but has broadenedto cover threats of all kinds to the nation’s “critical

11


There is a long and unfortunate historyof cooperation between governmentsecurity agencies and powerful corporations to deprive individuals oftheir privacy and other civil liberties.

infrastructure.” The program’s Web site suggeststhat it simply gives the FBI a quick way to spreadspecific, credible security alerts to companies thatmay be targets, and gives companies a discreet wayto report attacks by hackers.

But there is evidence that InfraGard may becloser to a corporate TIPS program, turning pri-vate-sector corporations – some of which maybe in a position to observe the activities of mil-lions of individual customers – into surrogateeyes and ears for the FBI. For example, severalprogram members told the Plain Dealer that“they received through InfraGard a list of Web

sites frequented by terrorists and were monitor-ing their computer networks to see if anyone ontheir systems visited those pages.”44 It is alsopossible that the program serves as a more con-trolled version of the FBI’s watch list distribu-tion program “Project Lookout” (see p. 19).

There is a long and unfortunate history ofcooperation between government securityagencies and powerful corporations to depriveindividuals of their privacy and other civil lib-erties, and any program that institutionalizesclose, secretive ties between such organiza-tions raises serious questions about the scopeof its activities, now and in the future.

Purchasing data on the open market

Another option open to government agenciesseeking information on individuals is to sim-ply purchase it on the open market. As pri-vate-sector information-gathering has

exploded in recent years, so has the amountof data that is now available to the govern-ment (and any other customer) willing to paythe price. Although government informa-tion-purchasing was once a minor matter, theexplosion of private-sector data collectionhas begun to significantly undermine thelaws meant to protect Americans from gov-ernment snooping.

Perhaps the ultimate example of the powerfulinformation sources now available for pur-chase by the government is the existence ofcompanies called data aggregators, whichmake it their business to gather, compile anddistribute dossiers full of information aboutAmericans’ personal lives (see p. 25).

Plentiful legal powers to demandprivate-sector data

If a company won’t donate or sell its data onindividuals, the government has a powerfularsenal of legal weapons with which to forceit (as well as other entities such as doctors’offices and libraries) to provide access toindividuals’ records in its possession.45

Even as private-sector companies hoardmore and more details about our transac-tions, the government’s powers to obtainthat data are growing:

• The Patriot Act. The Patriot Act makes itmuch easier for the government to demandinformation from businesses and lowersthe standard of evidence required for suchdemands. Section 215 of the act, forexample, gives the FBI the power todemand customer records from Internetservice providers (ISPs) and other commu-nications providers, libraries, bookstoresor any other business – with little judicialoversight. The businesses can be bannedfrom telling anyone, including their affect-

12


The government has a powerful arsenalof legal weapons with which to forcethird parties to provide access to individuals’ records.

ed customers, about the search. And thesearch orders do not even have to specifya particular target.46

• National Security Letters. Theseobscure devices, which can be written byFBI officials in field offices without theapproval of a judge, give the governmentbroad power to demand records. Onceupon a time this sweeping power couldonly be used to get information about“agents of a foreign power” from banks,credit agencies and Internet serviceproviders. But the Patriot Act changed thelaw to allow their use against anyone,including persons not suspected of acrime.47 And a bill quietly signed into lawby President Bush in December 2003extends coverage to a wide variety of busi-

nesses, ranging from jewelry stores tostockbrokers to car dealerships to casi-nos.48 Businesses are also subject to a gagorder prohibiting them from talking aboutthe government’s data demands.

Most restrictions on the use of information ingovernment databases have exceptions for lawenforcement and intelligence purposes. Thescope of those exceptions was once clear: It waslimited to attempts to solve crimes, and to stopforeign espionage. But under the new, post-9/11security paradigm, which more than ever beforeviews every American as a potential suspect,those exceptions may now be far wider than wasever intended when they were written into thelaw. Law enforcement is increasingly forward-looking – trying not just to solve crimes but toanticipate and prevent them. And the boundaries

between foreign intelligence and domestic lawenforcement have come under sustained assault.49

Already “fishing” with new powers

The government’s expanded surveillancepowers are, in fact, being used. Phone com-panies, banks and retail stores report morerequests by law enforcement for informationabout customers:50

• In December 2003, the FBI presentednational security letters to hotels in LasVegas and obtained access to names and per-sonal information on all their customersbetween December 22 and New Year’s Day.The FBI also vacuumed up information onanyone who flew into the city, rented a car ortruck or patronized a storage facility. TheFBI thus indiscriminately scrutinized thelawful activities of an estimated 270,000Americans based on no individualized suspi-cion of wrongdoing.51 (Ironically, the inci-dent came as the city was conducting anadvertising campaign based on the slogan,“what happens here, stays here.”)

• Since passage of the Patriot Act, the FBIhas been using national security lettersvery aggressively in general, according toa January 2003 list obtained through aFreedom of Information Act request filedby the ACLU. The list was blacked out –but it was six pages long.52

• Internet service providers report thatsearch orders have “gone through theroof.”53 ISPs maintain records of individ-uals’ Internet use, including records of IPaddresses (a number that is assigned toeach computer that connects to theInternet) that can be combined with logsautomatically maintained by most Webservers to identify which individuals have

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Law enforcement is increasingly forward-looking - trying not just tosolve crimes but to anticipate and prevent them.

visited a Web site, participated in “anony-mous” chat or message boards or adopteda particular online pseudonym. In 2002alone, for example, BellSouth receivedabout 16,000 subpoenas from lawenforcement and 636 court orders for cus-tomer information.54

• Attorneys who represent many of theaffected companies report that it is not justthe number of requests that is increasing,but also their scope; more requests take a“shotgun approach” or are “just fishing.”55

What happens to all of this data when theauthorities complete the investigation forwhich it was collected? As one former high-ranking intelligence official observed, “TheFBI doesn’t throw anything away.”56

In addition, private companies often do nothave the time, resources or inclination to “min-imize” the data that they hand over to the gov-ernment. Instead of turning over just thenames of its customers, for example, a hotelmight find it easier to simply hand over itscomplete files, including all the details of cus-tomers’ transactions.

Building in surveillance

In addition to requesting, purchasing or order-ing the supply of private-sector data, the gov-ernment is also taking steps to ensure that noth-ing is left to chance when it needs informationfrom a particular company or industry. Byaffirmatively guiding, structuring or mandatingthe maintenance of information on individuals

by private organizations, the government isensuring that its agents will get what they wantwhen they go looking for it.

CALEA

An early example of this trend is theCommunications Assistance for LawEnforcement Act of 1994 (CALEA), whichforced telecommunications providers todesign their equipment according to the FBI’sspecifications in order to make eavesdroppingeasier and more convenient – in effect, requir-ing the architects of the nation’s newest com-munications networks to twist those networksinto designs that they would not otherwisetake, simply to preserve the government’sability to eavesdrop. It is the constitutionalequivalent of the government requiring thatall new homes be built with a peephole forlaw enforcement to look through.

Recently, the FBI and other law enforcementagencies have sought to expand CALEA evenfurther. They have pushed for an aggressiveinterpretation of the statute that would allow itto monitor certain Internet content without awarrant, and to collect tracking informationabout the physical locations of cell phone users– turning cell phones into what, for all practicalpurposes, are location tracking bugs (a use thatmany, including the ACLU, assert is notauthorized at all by CALEA).

And now, the FBI is also trying to force broad-band Internet providers to build their technicalsystems in a way that will allow the governmentto eavesdrop on Internet telephone calls.57 Thefledgling Internet phone industry is still experi-menting with a variety of technologies, yet thegovernment would force companies to give lawenforcement a ground-floor veto over the spec-ifications of new products they develop –before they’ve even worked out the bugs ortested their success in the marketplace.

14


The government is taking steps to ensurethat nothing is left to chance when itneeds information from a particular company or industry.

Mandatory data retention

Around the time that the FBI pushed for andwon the surveillance-enabling CALEAstatute, it also made a push for a national“data retention” law, which would haveforced ISPs and other communicationsproviders to retain their records of individu-als’ communications for a set period of timejust in case those records should prove helpfulin an investigation. More recently, there werereports that an early draft of the Bush admin-istration’s “National Strategy to SecureCyberspace” called for a mandatory customerdata retention regime.58

In a legal environment where the governmenthas very few limits on its ability to access infor-mation about individuals that is stored by thirdparties such as ISPs, a data retention law requir-ing such storage would short-circuit one of thefew true privacy protections left – the disposalof records once they are no longer needed.

The U.S. has pushed the European Union toadopt data retention laws. In October 2001, forexample, President Bush himself directly askedthe EU to change its rules to allow for the reten-tion of communications traffic data.59 It is beingadopted by 9 of the 15 EU member states.60

This is a perfect example of what has beencalled “policy laundering” – the act of pushinglaws through foreign and international bodiesthat could never win direct approval at home.

Americans have long feared the specter of thegovernment maintaining dossiers filled withinformation about the lives of individual, inno-cent citizens. Data retention, whether manda-tory or de facto, achieves the same goal indi-rectly, by ensuring that information is stored bycorporations – from where, as we have seen, itcan easily be accessed by the authorities.

Airline Profiling

Another example of this dynamic can be found inairline profiling proposals such as the CAPPS IIprogram, under which the government would con-duct background checks on every traveler in orderto give him or her a “risk assessment” rating of“red,” “yellow” or “green.” CAPPS II wouldrequire the airlines to collect and furnish to the

government each passenger’s full name, address,phone number and date of birth when they make areservation. Computer systems in use today arenot built to track – they are unable to tell if the JohnDoe who took one flight is the same Jonathan Doewho took another, and the same J.S. Doe Jr. whotook a third. By imposing a standardized data-col-lection requirement, the government will make iteasy to compile lifetime travel dossiers coveringeveryone who flies anywhere in the world.61

The Computer Reservation Systems – independ-ent contractors that handle reservations for almostall airlines – are under absolutely no legal obliga-tion to protect the privacy of that information.They do not have direct relationships with actualtravelers, and thus have no consumer privacy pol-icy by which they must abide (or market pressurefor good privacy practices). And no U.S. privacylaws restrict their ability to compile, store andshare their dossiers on individuals’ travel.

And of course, there are plenty of laws thatwould give the DHS and other government agen-cies easy access to these travel dossiers – if theCRSs don’t simply sell them access outright.62

In July 2004, Homeland Security Secretary TomRidge seemed to indicate that the CAPPS II programwould be terminated. Other DHS officials, howev-

15


The U.S. has pushed the European Unionto adopt data retention laws.

er, indicated that while the CAPPS name may beretired, the concept will live on. As one spokesper-son put it, “The process of creating an automatedpassenger pre-screening system. . . will continue.”63

Whether through CAPPS II or some other passen-ger-profiling system, it is clear that the govern-

ment once again wants to make sure that personaldata will be waiting in private hands (and in a suit-able form) when agents want it.

The Patriot Act: Draftingindustry into the government’ssurveillance net

As we have seen, the government has manyoptions for accessing particular pools of infor-mation. Other developments, however, arepotentially even more frightening than the gov-ernment’s free hand in gathering data on partic-ular targets. Increasingly, the government isworking to construct systematic mechanisms

that provide constant feeds of (or open access to)private-sector data. Such systems truly turn pri-vate companies – in some cases, entire indus-tries – into agents of the surveillance state.

A prime example of such a system is thegrowing machinery for government monitor-

ing of financial activities, which has beenenabled by the Patriot Act and justified by theneed to stop money laundering. Through thePatriot Act, the government has created a sys-tem for the near-total surveillance of thenation’s financial system:

• It expanded a system for reporting “suspi-cious” financial transactions.

• It set up a system for the government to con-duct broad-ranging, nationwide “Googlesearches” through financial records.

• It required financial institutions to set upan identity verification process.

• It required financial institutions to check theircustomers against government “watch lists.”

These steps involve the increased use of toolsthat were originally created to catch drug deal-ers and other traditional criminals in the fightagainst terrorism. But as a Federal Reserveofficial pointed out to Congress,

Terrorist financing activities are unliketraditional money laundering in a verysignificant respect. Money used tofinance terrorism does not always origi-nate from criminal sources. Rather, itmay be money derived from legitimatesources that is then used to supportcrimes. Developing programs that willhelp identify such funds before they canbe used for their horrific purposes is adaunting task.64

In short, the new focus on “terrorist financingactivities” potentially involves much deeperscrutiny of everyday financial transactions thanhas been previously conducted, because itinvolves searches of “money derived fromlegitimate sources” and scrutiny of individualswho have not committed any crime.

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The new focus on “terrorist financing activities” potentially involves much deeperscrutiny of everyday financial transactionsthan has been previously conducted.

Through the Patriot Act, the government has created a system forthe near-total surveillance of thenation’s financial system.

Expanded system for reporting“suspicious” financial transactions

The nation’s financial companies have beenenlisted into an enormous effort to provide asteady stream of routine financial informationto the government. Under the Bank SecrecyAct of 1970, every bank, thrift and credit union

is required to file a report with the governmentwhenever a customer deposits $10,000 ormore. The Patriot Act has dramaticallyexpanded that requirement, stating that “anyperson who is engaged in a trade or business”– meaning every shop owner, plumber, con-sultant, home-improvement contractor and soon – who receives $10,000 or more in cashmust file a detailed report, called a “SuspiciousActivity Report,” with the government.65

Among the problems with this system:

• While $10,000 may seem like a lot ofmoney, it’s not as much as it used to be,and the law contains no provision indexingthis reporting threshold to inflation. If,when this law was originally passed in1970, the threshold had been set at a levelequivalent to $10,000 of today’s spendingpower, it would be just $2,625 today. Ineffect, the threshold for reporting to thegovernment has been lowered by nearly 75percent. And if this law had been passedat the corresponding level in 1932, thethreshold today would be just $855.66

• Those affected the most may be immi-grants and minorities, who tend to use the

traditional banking system the least (andtherefore, when making a large purchase,are less likely to be able to write a check).

• Given the lack of privacy protections forcredit card records, which are routinelyshared by financial institutions, cash is theonly recourse for those who want to preservetheir privacy when making a purchase.

• It’s far from clear how effective this systemwill be at its stated goal of stopping moneylaundering. “You’re trying to turn an untrainedpopulace into the monitors of money laun-dering activity,” according to financial regu-lation expert James Rockett. “If you want tostop this, it’s got to be done with police work,not tracking consumers’ buying habits.”67

With all this information pouring into anenormous government database of financialtransactions, the effect will be continuousgovernment monitoring of an ever-growingproportion of individuals’ economic activities.

A system for government “Googlesearches” through Americans’ privatefinancial records

Even more powerful than the “SuspiciousActivity” reporting requirement is a set of gov-ernment regulations (stemming from Section 314of the Patriot Act) that force financial institutionsto check their records to see if they have engaged

in any transactions with “any individual, entity ororganizations listed in a request submitted by”the government. This grants any arm of govern-

17


The nation’s financial companies havebeen enlisted into an enormous effort toprovide a steady stream of routinefinancial information to the government.

Any arm of government with a lawenforcement function can now order asearch of financial institutions across thenation for records matching a suspect.

ment with a law enforcement function – includ-ing even agencies such as the AgricultureDepartment and the Postal Service – the power toorder a search of financial institutions across thenation for records matching a suspect.

These searches can be done to investigate anysuspected cases of money laundering – anextremely broad offense that encompasses anyeffort to disguise illicit profits, and can be usedin pursuit of more than 200 different crimes.According to figures obtained by Newsweek, in2003 alone the government used the Patriot Actto conduct searches on 962 suspects – and twothirds of the documents obtained were formoney laundering cases that had no apparentconnection to terrorism.68

Of course, the names of suspects that the gov-ernment runs by financial institutions can pre-sumably be retained by those financial institu-tions, and nothing prevents them from blacklist-ing those individuals and refusing to give themloans or otherwise do business with them, even ifthey are perfectly innocent of any wrongdoing.69

The unprecedented effect of these rules is tocreate and put at the government’s fingertips anenormous distributed database of every trans-action recorded by a financial institution in theUnited States.

New ID requirements

Completing the circle of the government’s sys-tematic enlistment of financial companies in itssurveillance web is Section 326 of the Patriot Act,which requires that such companies create a“Customer Identification Program” of strict iden-tity checks. The law requires that when any cus-tomer opens an account, takes out a loan, obtainsa credit card or performs any other financial busi-ness, the financial institution must obtain and ver-ify the customer’s name, address, date of birth andsocial security number. Usually this is done by

demanding a picture ID. Furthermore, the lawimposes a data-retention requirement, mandatingthat companies keep records of identity verifica-tion for five years past the closure of an account.70

This provision protects and enhances the gov-ernment’s other powers to search throughfinancial records by seeking to ensure that

those records can be consistently linked to allthe other records that exist about an individual.Of course, like all ID-checking requirements,this is ultimately a futile measure against anyeven minimally motivated bad actor.

Watch list checks

Once financial institutions have verified a cus-tomer’s identity, they face another significantrequirement imposed by Section 326 of thePatriot Act: They must check whether the personis on a government list of known or suspectedterrorists or other watch lists. This requirementgoes beyond simply acquiring information fromthe private sector; it actually mandates that com-panies transform themselves into surrogateagents for the government, required to constant-ly watch for anyone listed on one of the govern-ment’s lists of suspected terrorists.

Individuals must now be checked against terror-ist watch lists whenever they buy or sell proper-ty – including jewelers, pawnbrokers, and evenaverage families buying or selling a home.71

Watch list searches can and do cause real harmto people. For example:

• An American citizen named HossamAlgabri received a statement in late 2002

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The Patriot Act mandates that compa-nies transform themselves into surro-gate agents for the government.

from Fleet Bank discontinuing hisaccount. The bank would not tell himwhat the problem was, except that he hadbeen targeted for “suspicious activity.”72

Algabri was just one of many people withsimilar experiences.

• Under a program called “Project Lookout,”the FBI circulated among corporations a listof hundreds of names of people whom itwas seeking in connection with 9/11. Thelist, which was riddled with inaccuraciesand contained the names of many people theBureau simply wanted to talk to, was wide-ly shared and re-shared, and quickly took ona life of its own. Companies began check-ing their customers against the list. The FBIadmitted it had no way to remove innocentpeople from the list, because its distributionhad spun beyond its control. No one knowshow many innocent people have beendenied jobs or suffered other harm becauseof the list.73

• Two giant health insurance companies,Blue Cross-Blue Shield of Michigan andAetna, conducted a search through mil-lions of customers’ health insurancerecords for terrorists (none were found).The search of 6 million Michigan recordsby Blue Cross yielded 6,000 false posi-tives, all of whom were “investigated fur-ther” by the company’s employees. Aetna,which searched through 13 million recordsacross the nation, refused to say how manyfalse positives its search generated or howthey were handled.74

• The government’s “no-fly” lists of terroristsuspects have ensnared hundreds of inno-cent Americans who find themselves fac-ing intense security scrutiny every timethey try to fly, yet have no way of findingout how they got on a list, and no practicalway to have their names removed.75

As such stories demonstrate, there are numerousproblems with the government’s watch lists:

• Lack of due process. Despite the badeffects that can accrue to those placed onsuch a list, there are no due process proce-dures that apply to those who are blacklist-ed, such as a right of appeal or a right to seethe information upon which a listing isbased. This violates the core Americanprinciple that no one should be punishedwithout due process.

• Slanted incentives. There may well bestrong bureaucratic incentives within thesecurity agencies to place names on watchlists, and strong disincentives to removenames. After all, who would want to bethe person responsible for removing orfailing to add a name that later turned outto belong to a terrorist?76

• Bloated lists. Consistent with thatdynamic, the U.S. government’s watchlists appear to be ridiculously bloated;news reports have put the number ofnames in the millions.77 That suggests itwill become increasingly common forsomeone to be flagged based on suchlists (especially when the inevitablecases of mistaken identification areadded to the equation).

• Private piggybacking. There are no lim-its on the private uses or abuses of suchlists, which are increasingly being used bylandlords and even car dealers.78

An entire archipelago of government-enforcedwatch lists has been created haphazardly andwithout the carefully constructed checks and bal-ances that such a powerful instrument demands.And now that system is being plugged in to theprivate sector, where a million eyes can watchfor the millions of people on these lists.

19


Background checks: from reportingto enforcement

Watch list requirements are actually qualita-tively different from other forms of out-sourced surveillance. While many programshave increased the information flowing

inward to the government, watch lists are amechanism by which the government sendsinformation outward into society. That servestwo purposes:

• It alerts the government’s information-col-lection networks to search for particularkinds of information, thereby increasing thepower of the distributed surveillance system.

• It turns companies into sheriff’s deputies,responsible not just for feeding informa-tion to the government, but for actuallyenforcing the government’s wishes, forexample by effectively blacklisting any-one who has been labeled as a suspectunder the government’s less-than-rigorousprocedures for identifying risks.

A similar explosion of distributed enforce-ment/surveillance is taking place through theconstruction of a massive new infrastructure foreveryday background checks in American life:

• Off-the-shelf software for conductingbackground checks is now being sold atWal-Mart-owned “Sam’s Club” stores foraround $40. The software allows even thesmallest business to carry out variouschecks by accessing databases compiledby the data aggregator Choicepoint.79

• Congress passed legislation called the PRO-TECTAct, which created a pilot program forFBI background checks on people whodonate their time to various volunteer organ-izations. The FBI estimates that 26 millionAmericans a year could be required to be fin-gerprinted under this program. The criteriafor failing one of these checks include thecommission of any felony, or a misdemeanorinvolving controlled substances.80

• The Patriot Act required institution ofchecks on truck drivers with Hazmatlicenses,81 so the government is gearing upto do 3.5 million criminal backgroundchecks (which may actually be conductedby a private contractor such as LockheedMartin). In a perfect example of public-private synergy, employers in the truckingindustry may begin requiring all their driv-ers to get Hazmat licenses so they can getbackground checks on their drivers, whomthey often don’t trust.

• A growing normalization of backgroundchecks by employers of all kinds is emerg-ing. One survey found 80 percent of com-panies now conduct background checks onjob candidates.82

• The FBI’s new Terrorist Screening Centerplans to allow private-sector entities “suchas operators of critical infrastructure facili-ties or organizers of large events” to submitlists of names to the government to bechecked for “any nexus to terrorism.”83

These checks are one of the fastest-growingareas of integration between thesurveillance/enforcement functions of govern-ment and the private sector. There may well begood reasons for implementing backgroundchecks in certain circumstances, but an entireinfrastructure for such checks is being con-structed, and in the long run, there are few

20


A massive new infrastructure for every-day background checks in American lifeis being built.

areas of our lives that will be untouched. Feware stopping to ask what the consequences willbe of, for example, banning people from driv-ing a truck or volunteering in sports organiza-tions because they have been busted for pos-session of marijuana, had a credit problem (realor erroneous) or angered a former landlord.

Enlistment in the government’ssurveillance web hurts business

The government has forced businesses to hirenew staff and assume other expensive burdens tohelp conduct its surveillance. A wide variety ofbusinesses, including even pawn shops, are facedwith the prospect of setting up employee trainingprograms, hiring compliance officers, creatingwritten procedures, conducting annual “inde-pendent audits” or creating “customer identifica-tion programs.”84 Bank of America, for example,had to create a new department with six employ-ees to handle the government’s new surveillancemandates.85 BellSouth employs a team of 16full-time workers for the same purpose.86 Thebrokerage industry alone will have to spend up toan estimated $700 million in the next few yearscomplying with the Patriot Act.87

All these employees are, in effect, “outsourced”extensions of the government’s growing sur-veillance machine, and these expenditures arehidden taxes that corporations often pass on tocustomers in the form of higher costs and fees.

Even worse for some companies is the fact thatsweeping laws expanding government accessto information could endanger overseas busi-ness deals. Canadians have recently expressedconcern that because of the Patriot Act, theirpersonal information could be placed in thehands of the FBI if contracts to perform out-sourced functions for the Canadian govern-ment are given to U.S. companies.88

Failure to comply with the government’s newmandates can also entail more direct costs;already one company, Western Union, has beenfined $8 million under the Patriot Act for failingto report multiple “suspicious” transactions.89

The costs of airline passenger profiling

Perhaps the biggest example of burdensomesurveillance mandates is the standardizationof airline reservations and identity data thatwould be required by CAPPS II or other pas-senger-profiling schemes. The independentcontractors that handle reservations for mostairlines and the other computer systems towhich they connect, from Web sites to travelagencies, are simply not equipped to routine-ly collect names, addresses and telephonenumbers for all travelers. Many people travel

under group reservations, for example, inwhich a block of seats is reserved under justone name. And there is not even a field fordate of birth in the existing databases – and itis no simple matter to add one.

The cost of rebuilding these interlocking systemsto airlines, travel agents and the traveling publicwould be enormous; no systematic study hasbeen done, not even by the government, but forCAPPS II, travel writer Edward Hasbrouck hasestimated the cost at $1 billion,90 and theInternational Air Transport Association reportedestimates of more than $2 billion.91 The TSA hasnever explained who will bear this expense oreven sought to detail it. And of course that expen-diture is only the beginning; there is also the costto travelers in new hassles and frustrations.92 TheAssociation of Corporate Travel Executives testi-

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Sweeping laws expanding governmentaccess to information could endangeroverseas business deals.

fied that a “conservative estimate” of the cost ofCAPPS II to business in delays and denied board-ings would be $2 billion.95

By assuming the expenses of hiring workers,building new systems and procedures and pur-chasing software, businesses are helping tofinance the creation of a legal and technologicalinfrastructure for the systematic surveillance ofindividuals through their private-sector transac-tions. The government has always enlisted thehelp of citizens and others in fighting criminals,through such devices as “most wanted” posters.But that relatively simple device is worlds awayfrom the wholesale recruitment of private cor-porations as extensions of the government’smass information-collecting apparatus.

Mass Data Use, Publicand PrivateUltimately, the U.S. may need huge databasesof commercial transactions that cover theworld or certain areas outside the U.S....Acxiom could build this mega-scale database.– Doug Dyer of the Pentagon’s TotalInformation Awareness program96

As we have seen, the government is recruitingboth individuals and corporations into anemerging surveillance system. TIPS-like pro-grams aim to promote and organize individu-als’ vigilance over each other, and feed the out-put of that mutual observation to the govern-ment. And, by plugging into the growing tor-rents of data swirling through private-sectorcomputers, security agencies are doing thesame thing with corporations: turning theminto bigger, more far-reaching versions of thecable guy, able to inform on millions of cus-tomers in a single bound.

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Terrorist investiga-tions in a box

An entireindustry hassprung up top r o d u c es o f t w a r ethat makes iteasier forcompaniesto enforcethe govern-m e n t ’ s

blacklists and other mandates. Anexample is “Homeland Tracker,” pro-duced by a subsidiary of the giant data-base company Choicepoint to “help anybusiness comply with OFAC and USAPATRIOT Act regulations.” The manualproudly touts the software’s ability to“get identity verification, check individ-ual names, scan customer files” and“build personal accept and deny lists”(otherwise known as blacklists). Oncea company’s customer data is“scanned for violations against all datalists” – that is, government watch lists– the software lets the company “scan,block or reject business transactions”involving any entities “that threatennational security.”93

This kind of product is offered bymore than 50 companies and is beingused, according to one survey, by 83percent of financial companies forwatch list screening, and by 50 per-cent to analyze transactions formoney-laundering violations.94

But the progression toward a surveillancesociety involves much more than efforts togather information from particular organi-zations or even particular industries. Italso includes efforts at the mass aggrega-tion of information about individuals thataim to do for the rest of American life whatthe Patriot Act is already doing for thefinancial sector. If allowed to go farenough, this trend would turn America intoa truly Orwellian society.

Data mining

A primary motivation for and justification ofmass data gathering about Americans is agroup of techniques loosely labeled “datamining.” The idea behind data mining is totap into the ever-growing number of databas-es containing details on individuals’ behav-ior, aggregate that data to form rich picturesof individuals’ activities and then use com-puter models to scrutinize them en masse forsuspicious behavior.

Interest in this concept within the govern-ment has sharply raised the stakes of gov-ernment access to third-party data,because it takes scattered, disconnecteddatabases that may be relatively harmlessin isolation and transforms them into ameans for the government to monitorindividuals’ activities.

While data mining has never been validatedas a method for catching terrorists, it hasbeen pursued by numerous governmentagencies, from the Army to NASA. The mostnotorious example is the Pentagon’s now-defunct “Total Information Awareness” pro-gram, which sought to use data mining tohelp identify terrorists from among the hun-dreds of millions of innocent individuals inthe United States.

From the start, TIA was premised on a tight-ly interlinked relationship between govern-ment and private-sector data companies.Program director John Poindexter of theDefense Advanced Research Projects Agency(DARPA) explained that the goal was to mine“the transaction space” in order to find “sig-

natures” of terrorist activity. A graphic on theTIA Web site listed the types of databasesthat would make up this “transaction space,”including financial, medical, travel,“place/event entry,” transportation, housingand communications.

Private companies, of course, hold much ofthe data in these categories, and in order toachieve Poindexter’s stated goal of weavingthese databases together so that they can betreated “as if they were one centralizeddatabase,” the government would clearlyneed to secure access to vast stores of private-sector data.

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Interest in this concept within the government has sharply raised the stakesof government access to third-party data.

Parents,Siblings,

Neighbors,Associates

DOSSIER

NameSocial Security #AddressPhoneDate of Birth

TravelHistory

Credit CardUsageHistory

LibraryRecords &

BookPurchases

MusicPreferences

InternetUsage Logs

SexualOrientation

PoliticalActivities

Religion

Finances

CriminalRecord

DrivingRecord

Education

Total Information Awareness: farfrom unique

Congress ultimately voted to strip the funding fromPoindexter’s program. But TIA was hardly unique.Another program intended to aggregate and analyzevast amounts of private-sector information on theactivities of Americans is the MATRIX, whichstands for “Multi-State Antiterrorism InformationExchange.” Like TIA, this program is based onbringing together vast amounts of information todetect terrorism and other crimes, except theMATRIX is run at the state level, and combines

government databases from participating states witha private database that claims to have “20+ billionrecords from 100’s of sources.”97

At one time 16 states had agreed to participatein the MATRIX. But as a result of the publiclight thrown on the program by the media andby freedom of information requests filed by theACLU, at least two-thirds of its membersdropped out as of March 2004.98

The program continues, and in a move that istypical of the industry, Seisint is being pur-chased by LexisNexis, a giant data company,raising the prospect that even more torrents ofinformation will be fed into the program.99

Other government data mining projects arealso afoot:

• The NSA has a program called “NovelIntelligence From Massive Data,” aboutwhich little is known.100

• The CIA reportedly is using a data-min-ing program called Quantum Leap that

“enables an analyst to get quick access toall the information available – classifiedand unclassified – about virtually any-one.” (The CIA’s deputy chief informa-tion officer told a reporter that the tech-nology is “so powerful it’s scary” and“could be Big Brother.”)101

• Parts of the original TIA program live onin the Pentagon’s secret “black budget.”

• A May 2004 survey of federal govern-ment data-mining efforts by the GeneralAccounting Office revealed at least fourdata-mining programs that use personalinformation from private-sector databas-es in the hunt for terrorists. For exam-ple, the GAO identified a program runby the Defense Intelligence Agency thatmines data “to identify foreign terroristsor U.S. citizens connected to foreign ter-rorism activities.”102

Regardless of the activities of any particulargovernment agency, it is clear that becauseof data mining, and the data aggregation that

it depends upon, the compilation and shar-ing of information gathered by the privatesector has assumed a much greater impor-tance than in the past. It raises the prospectthat information collected by one’s broker,supermarket or catalog retailer will becomedata points in a frighteningly completedossier, scrutinized by suspicious govern-ment security agencies.

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Data aggregators are operating in aworld where their work is becomingincreasingly frightening and politically charged.

Parts of the original TIA program live onin the Pentagon’s secret "black budget."

Data aggregators

Government agencies are not the only organi-zations that are interested in creating high-res-olution pictures of individuals’ activities bydrawing together data from a variety ofsources. Companies called “data aggregators”do the same thing for profit. These companies,which include Acxiom, Choicepoint, Lexis-Nexis and many others, are largely invisible tothe average person, but make up an enormous,multi-billion-dollar industry. The Privacy Actof 1974 banned the government from main-taining information on citizens who are not thetargets of investigations – but law enforcementagencies are increasingly circumventing thatrequirement by simply purchasing informationthat has been collected by data aggregators.103

Originally fueled by the economic drive tomake expensive corporate marketing cam-paigns more efficient, these companies areoperating in a world where their work isbecoming increasingly frightening and politi-cally charged – in part because of the newpost 9/11 environment and the government’scorresponding hunger to gather as much dataas it can, and in part because of their very suc-cess in gathering more and more informationabout everyone.

Data companies collect information from court-houses and other public sources, as well as mar-keting data – sometimes including extremelypersonal information, such as lists of individualssuffering from incontinence, prostate problemsand clinical depression.104 Some databases areeven co-ops in which companies agree to con-tribute data about their own customers in returnfor the ability to pull out rich profiles of theircustomers based on the data contributed by allmembers. Once such company, Abacus Direct,for example, boasts to prospective members thattheir data will be “combined with other 1,700+

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How data mining isused: a snapshot

The amount of information that isavailable about a person once youhave his or her name and address isstunning. A marketing brochurepublished by the data company andcredit rating giant Experian providesa snapshot of the kind of practicesthat have become common.

The brochure describes howExperian helped the electronicsretailer Best Buy “develop a 360-degree view of their customers.”Having gathered basic informationabout its customers from “19 cus-tomer touch-points,” Best Buy“enhanced over 50 million cus-tomer records” with data compiledby Experian. That data came from“more than 3,500 public and pro-prietary data sources,” andincludes age, estimated income,occupation, “lifestyle data” anddata about individual’s productpurchases “such as PC ownershipand others.”105

It is unclear whether Experian wasallowed to keep the purchaserecords of Best Buy’s customersas part of this deal. It is clear,however, that many companies arebetraying their customers bysharing the details of their trans-actions with data companies thatadd them to the dossiers theymaintain about us.

companies’ transactions,” that “Consumer buy-ing behavior [is] defined for over 90 millionhouseholds (90 percent of U.S.),” that they haverecords of 3.5 billion transactions and that – lestany corporate members fret over betraying thedetails of their customers’ activities – “It’s aconfidential alliance.”106

Government customers

As we have seen, all the information gath-ered by these companies is now easily avail-able to government security agencies –whether through the many legal tools avail-able to them for seizing personal informationheld by third parties like Experian, or by

simply buying it. And the government is, infact, buying information from these compa-nies. One of the biggest data aggregators,for example, Choicepoint, claims to havecontracts with at least 35 government agen-cies. It has an $8 million contract with theJustice Department that allows FBI agents totap into the company’s vast database of per-sonal information on individuals, as well ascontracts with the Drug EnforcementAdministration, the U.S. Marshals Service,the IRS, the Bureau of Citizenship andImmigration Services (formerly INS) and theBureau of Alcohol, Tobacco andFirearms.107Another data aggregator, SeisintInc., has received more than $9.2 million ingrant money from the Department of Justiceand the Department of Homeland Security toprovide commercial data to the MATRIXprogram.108

The government is not just dipping into a pre-existing commercial marketplace to purchase

data; companies are actually creating and reshap-ing their products to meet the needs of govern-ment security agencies.109 The fact is, privatecompanies are increasingly moving in to performfunctions that used to be carried out by the police.

Data companies provide information andservices that include financial reports, edu-cation, professional credential and referenceverification, felony checks, motor vehiclerecords, asset location services, and informa-tion on an individual’s neighbors and familymembers, as well as the “location of witness-es, suspects, informants, criminals, [and]parolees” and the “verification of identity incriminal and civil investigations” and in“national security matters.”110 Tens of thou-sands of federal law enforcement agentshave access to these services, with few safe-guards against abuse.111

Not just federal agencies but also many localpolice departments subscribe to private-sectorinformation services that can provide officerswith information – such as a list of a person’spast roommates – that would spark outrage ifmaintained directly by the police in their ownfiles. In the newest twist, officers on the beatare even being given the power to access thiskind of data on the fly using handheld wire-less devices.112

Just as 19th century commercial file-keep-ing techniques began as a means of deter-mining creditworthiness, and then were usedto keep tabs on “Reds” and labor agitators,113

so we are now witnessing the transmogrifi-cation of commercial databanks originallycreated for commercial purposes into securi-ty tools. And although these new tools areextremely powerful, they are constrained byfew legal, procedural or technological safe-guards against abuse.

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One of the biggest data aggregatorsclaims to have contracts with atleast 35 government agencies.

The advantages of privatesurveillance

The use of private-sector data aggregatorsallows the government to insulate surveillanceand information-handling practices from priva-cy laws or public scrutiny. That is sometimesan important motivation in outsourced surveil-lance. Private companies are free not onlyfrom complying with the Privacy Act, but fromother checks and balances, such as theFreedom of Information Act. They are alsoinsulated from oversight by Congress and arenot subject to civil-service laws designed toensure that government policymakers are notinfluenced by partisan politics; unlike federalgovernment workers, private employees canmake donations to political campaigns.114

Other examples of government officials nurtur-ing surveillance schemes that rest in privatehands include:

• Minnesota’s “Multiple JurisdictionalNetwork Organization.” In a case reminis-cent of the mid-20th century private file-keeping groups, it emerged in 2003 that aprivate group, the Minnesota Chiefs ofPolice Association, was allowing the policeto search its database of law enforcementcase files from around the state. Raw casefiles contain not just criminal record infor-mation, but records of any interaction withthe police, whether as victim, witness, gun-permit applicant or even the subject of anaccusation by a disgruntled neighbor orcoworker. The database has been shut downrepeatedly because of privacy and securityconcerns, but may return as a purely state-owned and operated system.115

• Image Data’s “TrueID” system. TheSecret Service provided technical assis-tance and nearly $1.5 million in federal

funds to a company attempting to compile anational database of driver’s license photo-graphs and make them available for securi-ty and commercial purposes. Under thescheme, individuals’ photographs wouldpop up when they appeared at securitycheckpoints or used a credit card. The plan,which amounted to a privatized national IDsystem that security agencies would neverhave dared propose directly, collapsed afterit provoked a public outcry.116

P r o - S u r v e i l l a n c eLobbying

‘In 20 years, do you think the global databaseis going to exist, and will it be run by Oracle?’I asked. ‘I do think it will exist, and I think it isgoing to be an Oracle database,’ he replied.‘And we’re going to track everything.’– Jeffrey Rosen interview with Oracle CEOLarry Ellison117

As we have seen, there are many ways in whichthe government is pressuring corporations to dosurveillance on its behalf. But the reverse is also

true: Some corporations are pressuring the gov-ernment to invest in surveillance.

Surveillance is big business. Because of theexplosion of computers, database technologyand information gathering, surveillance tech-nologies are emerging as one of the ripestplums for companies to pluck in the new“anti-terrorism biz.” E-mails obtained by the

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Airport officials were receiving pitchesfrom security technology companieswithin days of the 9/11 attacks.

ACLU (as part of its effort to monitor face-recognition technology) show that airportofficials were receiving pitches from securi-ty technology companies within days of the9/11 attacks.118

Enormous sums of money are being pouredinto government research and development onanti-terror initiatives – an estimated $115 bil-lion in 2003 alone, rising to an estimated $130billion to $180 billion a year through 2010.119

And many companies want a piece of thataction. Examples include:

• Lockheed Martin. The defense giant hasreceived a five-year, $12.8 million contractto work on the CAPPS II airline profiling

system. It also works on identificationsystems with the FBI and others and was amajor recipient of contracts byPoindexter’s office at DARPA.120

• Acxiom. The Arkansas data aggregator paidGen. Wesley Clark $830,000 to help it obtainpost-9/11 contracts. Clark lobbied TreasurySecretary Paul O’Neill and aides to FBIDirector Robert Mueller, and even met per-sonally with Vice President Dick Cheney.121

• Choicepoint. The Georgia data companyincreased its lobbying expenditures four-fold after 9/11, from $100,000 in 2000 tomore than $400,000 in 2002.122

These companies are hardly alone; one 2003study found that 569 companies had registered ahomeland security lobbyist. As one lobbyist toldThe New York Times, “the major defense contrac-tors want to move into the homeland security

arena in a big way.”123 And often that meansturning their focus inward from the developmentof fighter jets and other weapons designed foroverseas combat to applications involving sur-veillance within the nation’s borders.

It is not possible to determine the overall extent towhich private-sector lobbying has actually driventhe government’s push for increased surveillance,as opposed to simply helping companies fight forpieces of a pre-determined government pie. Itwill be up to historians and investigative reportersto measure the role of companies pushing newsoftware products, or seeking to develop a home-land security market for their pre-existing datastores. But in at least some cases, major newimpetus for surveillance-friendly policies hasclearly come from the private sector:

• TIA. The Pentagon’s TIA program wasproposed by a private company, an engi-neering services firm called Syntek.Syntek vice president John Poindexterworked on components of TIA for yearsbefore eventually becoming director of theDARPA’s Information Awareness Office,which oversaw the program.124

• The MATRIX. The interstate MATRIX pro-gram similarly originated with a private com-pany, the data aggregator Seisint. In 2001, thecompany’s founder approached Floridapolice with the idea, and Seisint began devel-oping the program for Florida, which waslater joined by other interested states.125

• National ID Cards. Larry Ellison, theCEO of Oracle Software, almost single-handedly created a national debate overthe notion of a U.S. national identity cardin late 2001 by calling for such a card andpromising to provide the software for itwithout charge. Critics noted that he didnot agree to pay for the far more lucrativeservicing contracts on the system.126

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Defense contractors are turning theirfocus inward to applications involvingsurveillance within the nation’s borders.

• Face Recognition. In the wake of 9/11,vendors of face-recognition softwarebegan to aggressively tout their productas a “nationwide shield” that would pre-vent future attacks, leading to the exper-imental deployment of the technology inairports around the nation. (Most quick-ly concluded that the technology was notup to the task.)127

Insufficient powers of surveillance was notAmerica’s problem on 9/11; a congressionalinvestigation into the attacks as well asreports issued by the National CommissionOn Terrorist Attacks Upon The UnitedStates (the “9/11 Commission”) foundthat the government’s failure to prevent

them was a result of fundamental organiza-tional breakdowns in the intelligence com-munity, and the government’s failure tomake effective use of the surveillance pow-ers it already had.128 But there is much moremoney to be made providing complex, cut-ting-edge technological solutions to securi-ty problems than there is in sorting outorganizational or bureaucratic problems, orfixing problems with the basics of securityby, for example, strengthening airplanecockpit doors or increasing the profession-alism of airport security screeners.

It would be a double tragedy if the emerging sur-veillance-industrial complex were not only tolobby for increased surveillance on Americans,but also to divert resources from security meas-ures that would be far more likely to be effectivein protecting Americans from attacks.

Six ConclusionsWe should take nothing for granted.– President Eisenhower

Conclusion #1: An alliance ofunchecked interests

Individual freedom is always at risk in the faceof large, powerful institutions. In America, thisproblem has been addressed by setting poweragainst power. In the case of governmentpower, that has been accomplished through thesystem of checks and balances put in place inour Constitution. In the case of corporatepower, that has been accomplished throughcompetition, which sets company against com-pany, and through regulation, which sets thepower of government against the power of cor-porations (including the government’s antitrustpowers, to ensure that company remains setagainst company).

In the area of privacy, however, these time-test-ed protective arrangements are increasinglybreaking down:

• Insufficient and eroding checks on gov-ernment. The checks and balances that aresupposed to restrain government powerare not being put in place, as shown by thelack of due process protections for watchlists, for example, or rules to handle datacollected from citizen tip lines. Often, thisis because of the rapidity with which newinformation technologies have emerged –but existing checks and balances are alsobeing weakened, such as judicial oversightof surveillance, which was reducedsharply by the Patriot Act.

• Insufficient checks on corporations.The virtual absence of governmental reg-

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The power of government and the power of corporations, instead of beingset against each other, are actuallybecoming aligned.

ulation of corporate privacy in the U.S. –unique in the developed world – givescompanies a free hand to sell, trade andshare the details of their customers’ trans-actions without their permission orknowledge. And while competitive

forces may limit data sharing amongsome companies, the thriving market-place of data brokers often serves thefunction of bridging that gap.

The power of government and the power of corpo-rations, instead of being set against each other, areactually becoming aligned. There are certainlycompanies and industries concerned about privacy,and others concerned about the costs of complyingwith the new surveillance mandates. But mostcompanies have a strong incentive to maximizeconsumer data collection, and even the most priva-cy-protective company is helpless in the face ofofficial demands for customer information. Othercompanies, as we have seen, actively lobby forwider government use of personal records.

The United States has experienced occasionalperiods of intense social and political conflict,such as the Vietnam War, the Civil Rights move-ment and the labor movement earlier in the 20th

century. Given the greatly enhanced surveillancepowers of major corporations and governmentsecurity agencies, which in the past have active-

ly opposed such movements, how will the forcesfighting for change fare today and the next timesuch a period emerges?

Conclusion #2: Mass surveil-lance threatens freedom morethan it threatens terrorists

The government’s post-9/11 efforts to vacuum upand sift through masses of private-sector data ispremised on the impulse that “if we had justknown who those people were and what theywere doing, we could have stopped them – so let’strack everyone.” The tragedy is that mass sur-veillance is not only dangerous to our liberties,but is unlikely to be effective. Sifting through thelives of hundreds of millions of people is an inef-ficient, highly unreliable means of discovering aone-in-a-billion terrorist. The best way to stopterrorism is still through old-fashioned intelli-gence and law enforcement techniques that relyon working outward from known leads and sus-pects. Attempting to work inward from the entireresident and visitor population of the UnitedStates to locate a handful of terrorists will harmmany innocent people yet leave us vulnerable.

Working outward from known leads is not onlymore effective, but is also compatible with anentire body of law that has grown up over hun-dreds of years to prevent abuses by all-too-humaninvestigators. The drive to detect wrongdoingthrough the mass scrutiny of individual recordsfrom the private sector, on the other hand, wouldviolate a principle that is core to our legal system:The government cannot invade your privacyunless it has individualized reason to believe thatyou are involved in wrongdoing. The principle ofindividualized suspicion not only protects individ-uals against unfair treatment, but also imposes anecessary discipline on police investigators, whocan be tempted at times to engage in wasteful andinefficient fishing expeditions. Unfortunately, asthis report demonstrates, the fishing expedition

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The kinds of activities and information thatthe Founding Fathers sought to protectthrough the Fourth Amendment havemoved out of the home in modern life.

Sifting through the lives of hundreds ofmillions of people is an inefficient, highlyunreliable means of discovering aone-in-a-billion terrorist.

approach is rapidly being hardwired into our lawsand even our technologies.

Conclusion #3: The courts mustcatch up

Historically, the courts have been slow to adaptthe Fourth Amendment129 to new technology,and today is no different. When the telephonecame into use, the Supreme Court failed to givelegal protection to the content of telephone con-versations against government wiretapping,instead engaging in literal-minded hairsplittingabout whether particular eavesdropping devicesphysically penetrated a “constitutionally pro-tected area.” It was almost 40 years before theSupreme Court finally ruled that a wiretap, justlike a physical search, required a warrant basedon probable cause, and that “the FourthAmendment protects people, not places.”130

Today, the Supreme Court has still not recog-nized the right to privacy in highly personalinformation held by third parties – whetherfinancial records, medical records or library andbook records – on the theory that there can be no“reasonable expectation” of privacy regardingsuch information. When the Constitution waswritten, the home was the center of economic,financial and even medical life, and personalrecords and writings were likely to be storedthere, not on the servers of a multinational cor-poration. The Founders therefore created strongprotections for people’s “houses and effects.”

Today our homes remain highly protected fromgovernment scrutiny, but the kinds of activities andinformation that the Founding Fathers sought toprotect through the Fourth Amendment havemoved outward due to computers, telecommunica-tions and other developments of modern life. Butthough privacy in one’s affairs is no less necessarytoday, we are now exposed to easy scrutiny by thegovernment and other powerful institutions.

As with phone calls last century, so with third-partyrecords today: The Court has yet to transcend theparticular, 18th century formulation of privacy writ-ten into the Constitution and embrace the deeperethos of privacy that the Founders intended to pro-tect, and that is necessary to preserving a healthydemocracy in an age of high technology.

Our laws will probably catch up, as they did withthe telephone, but we must ensure that they aregiven the chance. It is a very real danger that, giventhe time it takes the courts to adjust to new technol-ogy, our law enforcement and national securityestablishments will take advantage of the lag toinstitutionalize data mining and other surveillancepractices that would never be accepted otherwise.

Conclusion #4: The ACLU isleading the fight

The ACLU is working hard across many of thedimensions described in this report to combatthe emergence of a public-private surveillancestate. In the past two years, the ACLU:

• Helped defeat TIPS. The ACLU led pub-lic opposition to this intrusive proposal,both in the media and in the halls ofCongress. (See www.aclu.org/SafeandFree/SafeandFree.cfm?ID=11295&c=206).

• Helped defeat TIA. The ACLU wasinstrumental in creating and maintainingpublic pressure on this program, leadingto its eventual defeat by Congress. (Seewww.aclu.org/Privacy/Privacy.cfm?ID=14729&c=130).

Today the fight continues. The ACLU is:

• Fighting against racial profiling. A broadassault on the kind of racial profilingimplicitly encouraged by TIPS-like “terror-ism watch” programs has been one of the

31


ACLU’s highest priorities both before andafter 9/11. (See www.aclu.org/profiling).

• Fighting the MATRIX. By coordinatingaction among the ACLU’s state affiliates,including the filing of state open-recordsrequests and efforts to inform state legislatorsabout the program, the ACLU has helpedreduce the number of participating states bytwo-thirds. (See www.aclu.org/matrix).

• Fighting CAPPS II. From media appear-ances to public testimony to generatingcitizen faxes to lobbying in the halls ofCongress and the European Union head-quarters in Brussels, the ACLU has helpedpoint out the flaws of this unnecessaryprogram and, so far, delay its deployment.(See www.aclu.org/capps).

• Working to discover how the govern-ment’s secret watch lists operate. TheACLU has filed a lawsuit to force the gov-ernment to comply with a Freedom ofInformation Act (FOIA) request seekinginformation on how the government’s No-Fly list operates and how individuals can getoff it. (See www.aclu.org/SafeandFree/SafeandFree.cfm?ID=15422&c=206).

• Challenging the No-Fly list in court. Inaddition to seeking information, theACLU has also directly challenged theNo-Fly list through a class action lawsuitfiled on behalf of innocent people caughtup by the list. (See www.aclu.org/nofly).

• Fighting in court to find out how thePatriot Act is being implemented.The ACLU has filed a lawsuit to force thegovernment to comply with a FOIArequest for information on how often it hasused the Patriot Act to obtain individuals’records from businesses or other third par-ties. (See www.aclu.org/patriotfoia).

• Challenging the Patriot Act’s “businessrecords” section in court. The ACLU haslaunched a direct legal challenge toSection 215 of the Patriot Act, whichgreatly expands the government’s abilityto secretly obtain data held by libraries,businesses and other third parties. (Seewww.aclu.org/section215).

• Challenging the use of “National SecurityLetters” in court. The ACLU has also fileda direct legal challenge to the Patriot Act’sdramatic expansion of law enforcement’sauthority to use National Security Letters todemand customer records without judicialoversight. (See www.aclu.org/nsl).

• Working in Congress to reverse the worstprovisions of the Patriot Act. ACLU lob-byists have been working in Congress topass legislation called the SAFE Act. (Seewww.aclu.org/SafeandFree/SafeandFree.cfm?ID=15962&c=206).

• Running a national grassroots campaignto build opposition to Patriot Act surveil-lance. With a full-time team of communityorganizers, the ACLU has helped hundredsof communities, representing nearly 20% ofthe U.S. population, to pass resolutions inopposition to the Patriot Act. (Seewww.aclu.org/resolutions).

• Exposing government and private-sec-tor surveillance. The ACLU has pro-duced numerous reports to inform the pub-lic and the news media about governmentsurveillance. They include:

• “Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society” (www.aclu.org/monster)

• “Unpatriotic Acts: The FBI’s Power to Rifle Through Your Records and

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Personal Belongings Without Telling You” (www.aclu.org/SafeandFree/SafeandFree.cfm?ID=13246&c=206)

• “The Dangers of Domestic Spying by Federal Law Enforcement: A Case Study on FBI Surveillance of Martin Luther King” (www.aclu.org/Files/OpenFile.cfm?id=9999).

• Working to discover how informationhas been shared by airlines. The ACLUhas filed FOIA requests with DHS and theTSA seeking information about how per-sonal travel information from JetBlue andAmerican Airlines was shared and used.(See www.aclu.org/jetblue).

• Fighting expansion of CALEA. TheACLU is working to prevent the expansionof CALEA, which would force Internettelephony companies to design their soft-ware to enable government eavesdropping.(See www.aclu.org/Privacy/Privacy.cfm?ID=15468&c=130).

Conclusion #5: Individuals must act to stem the supply ofpersonal data

The government’s strategy of relying on private-sector surrogates is a new and challenging devel-opment in the growth of surveillance. In theACLU’s view, the U.S. should emulate much ofthe rest of the developed world and create over-arching data privacy laws that cover at least ourmost sensitive data, including data in the handsof the private sector. The United States is virtu-ally alone among major industrialized nations inlacking such a law (or a federal privacy officialcharged with protecting the public).

But regardless of one’s opinions about how thegovernment should regulate the commercial

sector, nearly everyone who cares about his orher personal privacy agrees that the govern-ment’s use of the private sector to supply itwith our personal information needs to bebrought under control. One thing that con-sumers can do is to vote with their feet andtheir pocketbooks when they don’t like whatcompanies are doing behind their backs. In theshort term, Americans must weigh in againstthe government’s practice of “outsourcing sur-veillance” and make use of their role as con-sumers, shareholders and activists to put pres-sure on companies that are voluntarily partici-pating in this emerging system.

The ACLU is creating a Web site to help indi-viduals contact companies about their privacypractices: www.aclu.org/privatize.

Conclusion #6: We should takenothing for granted

In his Farewell Address of January 17, 1961,President Eisenhower famously warned that the“conjunction of an immense military establish-ment and a large arms industry is new in theAmerican experience.” We might update hiswords to describe what we are facing today:“the conjunction of an immense security estab-lishment and a large data industry.”Eisenhower’s conclusion about what he dubbedthe “military-industrial complex” was that:

The potential for the disastrous rise ofmisplaced power exists and will per-sist. We must never let the weight ofthis combination endanger our liber-ties or democratic processes. Weshould take nothing for granted.131

This warning applies just as strongly to the “sur-veillance-industrial complex” that is emergingin our own time. And the consequences ofignoring it would be just as dire.

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ENDNOTES1 See Jay Stanley and Barry Steinhardt, “Bigger Monster,Weaker Chains: The Growth of an American SurveillanceSociety,” ACLU, January 2003; online athttp://www.aclu.org/Privacy/Privacy.cfm?ID=11573&c=39.

2 Frank J. Donner, The Age of Surveillance: The Aims andMethods of America’s Political Intelligence System (New York:Alfred A. Knopf, 1980), chapter 12.

3 Operation TIPS Web pages from July 16 and August 8, 2002;available online at http://www.thememoryhole.org/polices-tate/tips-changes.htm.

4 According to the 2000 census, the population of the 10 largestcities in the U.S. totaled 23,899,236. By recruiting 1 millionparticipants from that population, TIPS would have turned onein every 24 residents of those cities into informants (and theproportion would be even higher if any smaller cities wereincluded in the pilot program).

5 Sandra Sobieraj, “Bush Urges Americans to Volunteer,”Associated Press, January 30, 2002; available online athttp://www.firehouse.com/news/2002/1/30_APbushvol.html.

6 Citizen Corps, “Citizen Corps: A Guide for LocalOfficials,” April 2002, p. 25; online at http://www.citizen-corps.gov/pdf/council.pdf.

7 Citizen Corps Councils home page at http://www.citizen-corps.gov/councils/.

8 “Coastal Beacon Program Continues,” Coast Guardpress release, July 17, 2002; online athttp://www.uscg.mil/d1/newengland/press_releases/081-02.htm.

9 “President Promotes Citizen Corps for Safer Communities,”White House Press Release, April 8, 2002; online athttp://www.whitehouse.gov/news/releases/2002/04/20020408-4.html.

10 Eyes on the Water program Web page athttp://www.uscg.mil/d9/eyesonthewater/howdoihelp.htm; PaulSinger, “Coast Guard asks help watching out for terrorism on GreatLakes,” Associated Press, July 25, 2002; River Watch Web page at http://www.michigan.gov/msp/0,1607,7-123-1589_3492-73050--,00.html.The primary difference between these programs and TIPSappears to be that while TIPS would have been centralized,now every Coast Guard district is setting up its own program.

11 “Highway Watch Fact Sheet,” Highway Watch home page;online at http://www.highwaywatch.com/aboutus/fsheet.html.Like some of the coastal watch programs, Highway Watch waslisted as an “existing system” on an “Operation TIPS FactSheet” published by Citizen Corps, but continues to operatedespite Congress’s decision to shut down TIPS. Citizen CorpsWeb site, “Operation TIPS Fact Sheet,” undated. The fact

sheet was removed from the government’s Web site after TIPSwas cancelled, but is available online at http://www.thememo-ryhole.org/policestate/last-tips.mht. See also Alice Lipowicz,‘Highway Watch’ Truckers Are the Eyes and the Ears of“Homeland Security,” Congressional Quarterly HomelandSecurity, June 8, 2004.

12 CAT Eyes, “About Us,” and “The Program: NeighborhoodBlock Watch Duties Using CAT Eyes,” available athttp://www.cateyesprogram.com. The program places a com-mendable emphasis on teaching trainees not to use race as abasis for suspicion.

13 Jennifer Steiner, “Anderson Township Sheriff’s DepartmentRecruits Realtors,” WCPO 9News, July 8, 2004; online athttp://www.wcpo.com/news/2004/local/07/07/realtors.html.Jennifer Edwards, “Realty agents, sheriff team up,” CincinnatiEnquirer, July 20, 2004; online at http://www.enquirer.com/edi-tions/2004/07/20/loc_loc4and.html.

14 Brian Baskin, “Workers recruited in war on terror,” OrlandoSentinel, July 8, 20042004; online at http://www.orlandosen-tinel.com/news/local/orange/orl-aseccap08070804jul08,1,152972.story.Baskin, “‘Aware’ primer will be revised,” Orlando Sentinel,July 16, 2004; online at http://www.sun-sentinel.com/news/local/south-florida/orl-loccapfolo16071604jul16,0,4840672.story.

15 “Governor Pataki Announces Public Security TipsHotline,” press release, Office of the Governor, New YorkState, Sept. 16, 2002; online at http://www.state.ny.us/gover-nor/press/year02/sept16_1_02.htm. See also Nat Hentoff,“Ashcroft’s Shadowy Disciple: Someone to Watch Over Us,”Village Voice, November 15th, 2002.

16 Air Force Office of Special Investigations, Eagle Eyes homepage at http://www.dtic.mil/afosi/eagle/index.html.

17 Brian McWilliams, “DoD Logging Unverified Tips,” WiredNews, June 25, 2003; online at http://www.wired.com/news/poli-tics/0,1283,59365,00.html.

18 See description of JetBlue case, p. 10. William M. Arkin,“Mission Creep Hits Home: American armed forces are assum-ing major new domestic policing and surveillance roles,” LosAngeles Times, November 23, 2003.

19 Quote is a link on Louisiana Homeland Security page athttp://www.loep.state.la.us/homeland/hls-main-citizens.htm.Clicking on the link brings readers to the federal CitizenCorps homepage.

20 Maryland Joint Terrorism Task Force Flyer, “Maryland LawEnforcement Seeks Your Help in Preventing Terrorism!";online at http://baltimore.fbi.gov/mdjttfflyer1.pdf.

21“Regional Terrorism Task Force Advises Public On ‘ThreatLevel Orange’ Protections,” press release, Lucas County,Ohioassuming Web site, May 29, 2003; online athttp://www.co.lucas.oh.us/HomelandSecurity/Stories/OrangeLevelProtectiveMeasures.asp.

34


http://www.aclu.org/Privacy/Privacy.cfm?ID=11573&c=39

http://www.thememoryhole.org/policestate/tips-changes.htm

http://www.firehouse.com/news/2002/1/30_APbushvol.html

http://www.citizencorps.gov/pdf/council.pdf

http://www.citizencorps.gov/councils/

http://www.uscg.mil/d1/newengland/press_releases/081-02.htm

http://www.whitehouse.gov/news/releases/2002/04/20020408-4.html

http://www.uscg.mil/d9/eyesonthewater/howdoihelp.htm

http://www.michigan.gov/msp/0,1607,7-123-1589_3492-73050--,00.html

http://www.highwaywatch.com/aboutus/fsheet.html

http://www.thememoryhole.org/policestate/last-tips.mht

http://www.cateyesprogram.com

http://www.wcpo.com/news/2004/local/07/07/realtors.html

http://www.enquirer.com/editions/2004/07/20/loc_loc4and.html

http://www.orlandosentinel.com/news/local/orange/orl-aseccap08070804jul08,1,152972.story

http://www.sun-sentinel.com/news/local/southflorida/orl-loccapfolo16071604jul16,0,4840672.story

http://www.state.ny.us/governor/press/year02/sept16_1_02.htm

http://www.dtic.mil/afosi/eagle/index.html

http://www.wired.com/news/politics/0,1283,59365,00.html

http://www.loep.state.la.us/homeland/hls-main-citizens.htm

http://baltimore.fbi.gov/mdjttfflyer1.pdf

http://www.co.lucas.oh.us/HomelandSecurity/Stories/OrangeLevelProtectiveMeasures.asp

22 Christopher Tripp, “Flashing highway signs prolif-erate, but do they help?” (Fredericksburg, VA) FreeLance-Star, May 11, 2003; online at http://www.free-lancestar.com/News/FLS/2003/052003/05112003/970175.

23 Example online at http://www.state.oh.us/odps/homelandse-curity/homeresponseguidefamilies.pdf. The warning appliesto all alert levels except the lowest – a status unlikely to bedeclared anytime in the foreseeable future.

24 National Crime Prevention Council, “United for a StrongerAmerica: Citizens’ Preparedness Guide,” pp. 2, 6, 20; online athttp://www.citizencorps.gov/pdf/cpg.pdf. This advice is remi-niscent of Federal Civil Defense public-service films of the1950s, which were long on frightening facts about possibleattacks, and short on advice for citizens likely to be useful incase of attack. See for example, “What You Should KnowAbout Biological Warfare,” Federal Civil DefenseAdministration public-service film, 19521952; available onlineat http://www.archive.org/movies/details-db.php?collec-tion=prelinger&collectionid=01449. This film explains infrightening detail the nature of the threat (reinforced by asoundtrack of scary music), and contains only vague sugges-tions for what to do about it, such as “keep yourself clean.” Thefilm’s main message: “cooperate with the authorities!”

25 U.S. Coast Guard, Marine Safety Office Pittsburgh; online athttp://www.uscg.mil/d8/mso/pittsburgh/PittsburghBrochure.pdf.

26 Frank James, “Terror tip lines prone to stereotyping,”Chicago Tribune, April 17, 2003; available online athttp://www.sanluisobispo.com/mld/sanluisobispo/news/poli-tics/5664237.htm. Dan Fesperman, “Md. Tip center a modelfor U.S. security,” Baltimore Sun, Jan. 12, 2004.

27 Privacy Act of 1974, PL 93-579, Sec. 3, Dec. 31, 1974, 88Stat. 1897. The privacy act does apply to subcontractors whoare directly performing the government’s work for it, but notcompanies that collect data for their own reasons.

28 “Report to the Standing Committee on GovernmentalOperations of the New York State Assembly,” June 8, 1976,cited in Ross Gelbspan, Break-Ins, Death Threats and the FBI:The Covert War Against the Central America Movement(Boston: South End Press, 1991), 80-81.

29 Gelbspan, pp. 45, 77-84, 169-172. The LAPD files were thesubject of a 1983 lawsuit filed by the ACLU on behalf of manyof the victims of police spying, which eventually resulted in a$1.8 million settlement from the city of Los Angeles.

30 Donner, 417-419.

31 James Bamford, Body of Secrets: Anatomy of the Ultra-SecretNational Security Agency: From the Cold War Through theDawn of a New Century (New York: Doubleday, 2001), 434.

32 James Bamford, The Puzzle Palace: A Report on NSA, America’sMost Secret Agency (Boston: Houghton Mifflin Co., 1982), 236-50.Operation Shamrock was not shut down until 1975. However, L. Britt

Snider, who had investigated Operation Shamrock for the ChurchCommittee in 1975 (and later became inspector general of the CIA),observed that “relations between intelligence agencies and the privatesector endured.” Bamford, Body of Secrets, 440.

33 Bamford, Puzzle Palace, 244-45, 248-52.

34 See Stanley and Steinhardt, “Bigger Monster,” 4.

35 Ryan Singel, “JetBlue Shared Passenger Data,” Wired News, Sept.18, 20032003; online at http://www.wired.com/news/priva-cy/0,1848,60489,00.html. Ryan Singel and Noah Shachtman, “ArmyAdmits Using JetBlue Data,” Wired News, Sept. 23, 2003;http://www.wired.com/news/privacy/0,1848,60540,00.html.

36 Electronic Privacy Information Center, “Northwest AirlinesGave NASA Personal Info on Millions of Passengers; DisclosureViolated Privacy Policy,” press release, Jan. 18, 2004; online athttp://www.epic.org/privacy/airtravel/nasa/pr1.18.04.html. Seealso Sara Kehaulani Goo, “Northwest Gave U.S. Data on Passengers,”Washington Post, Jan. 18, 2004; online at http://www.washington-post.com/wp-dyn/articles/A26422-2004Jan17.html.

37 “American Released Passenger Data,” AssociatedPress , Apr i l 10 , 2004; ava i lab le onl ine a thttp://www.wired.com/news/privacy/0,1848,63018,00.html.

38 John Schwartz and Micheline Maynard, “F.B.I. Got Recordson Air Travelers,” New York Times, May 1, 2004; online athttp://www.nytimes.com/2004/05/01/politics/01AIRL.html.

39 Eunice Moscoso, “Feds demanding more info about compa-nies’ customers,” Atlanta Journal Constitution, August 17,2003; available online at http://www.ajc.com/business/con-tent/business/0803/17patriot.html.

40 Patrick Healy, “Colleges giving probers data on foreign stu-dents’ finances,” Boston Globe, Oct. 3, 2001. AmericanAssociation of Collegiate Registrars and Admissions Officers,“Preliminary Results of the AACRAO Survey on CampusConsequences of the September 11 Attacks,” October 4, 2001;online at http://www.aacrao.org/transcript/index.cfm?fuseac-tion=show_view&doc_id=434.

41 Stephanie Stoughton, “Poll: Firms Relaxed Privacy Rules,”Boston Globe, Oct. 8, 2001.

42 InfraGard Web site at http://www.infragard.net/. See alsohttp://www.govjobs.com/Cont/InfraGard/Infragard%20Se-cure%20Access%20Agreement.pdf.

43 Chris Seper, “Combating Cybercrime: Different companieswork together in groups organized by FBI,” Cleveland PlainDealer, Nov. 4, 2002; available online at http://www.infra-gard.net/library/ig_promotes_awareness.htm.

44 Cleveland Plain Dealer, Nov. 4, 2002, op. cit. Two FBI agentsin the Cleveland office denied such an arrangement. But thenewspaper cites the chairwoman of the InfraGard national exec-utive board: “I have the list with me,” she told the paper.

35


http://www.freelancestar.com/News/FLS/2003/052003/05112003/970175

http://www.state.oh.us/odps/homelandsecurity/homeresponseguidefamilies.pdf

http://www.citizencorps.gov/pdf/cpg.pdf

http://www.archive.org/movies/details-db.php?collection=prelinger&collectionid=01449

http://www.uscg.mil/d8/mso/pittsburgh/PittsburghBrochure.pdf

http://www.sanluisobispo.com/mld/sanluisobispo/news/politics/5664237.htm

http://www.wired.com/news/privacy/0,1848,60489,00.html


http://www.epic.org/privacy/airtravel/nasa/pr1.18.04.html

http://www.washingtonpost.com/wp-dyn/articles/A26422-2004Jan17.html


http://www.nytimes.com/2004/05/01/politics/01AIRL.html

http://www.ajc.com/business/content/business/0803/17patriot.html

http://www.aacrao.org/transcript/index.cfm?fuseaction=show_view&doc_id=434

http://www.infragard.net/

http://www.govjobs.com/Cont/InfraGard/Infragard%20Secure%20Access%20Agreement.pdf

http://www.infragard.net/library/ig_promotes_awareness.htm

45 For a useful overview see Jim Dempsey and Lara Flint,“Privacy’s Gap: The Largely Non-Existent Legal Frameworkfor Government Mining of Commercial Data,” Center forDemocracy and Technology, May 28, 2003; online athttp://www.cdt.org/security/usapatriot/030528cdt.pdf.

46 See Ann Beeson and Jameel Jaffer, “Unpatriotic Acts: The FBI’sPower to Rifle Through Your Records and Personal BelongingsWithout Telling You,” ACLU Report, July 20032003; online athttp://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=13246&c=206.See also http://www.aclu.org/patriot.

47 The only requirement is that the National Security Letter be“relevant to” an ongoing investigation. The ACLU has filed alawsuit challenging the constitutionality of NSLs; seehttp://www.aclu.org/nsl.

48 Intelligence Authorization Act for Fiscal Year 2004, P.L. 108-177, December 13, 2003, 117 Stat. 2599. See also Kim Zetter,“Bush Grabs New Power For FBI,” Wired News, January 6,2004; online at http://www.wired.com/news/priva-cy/0,1848,61792,00.html.

49 In re Sealed Case, 310 F.3d 717, 746 (Foreign IntelligenceSurveillance Court of Review 2002).

50 Eunice Moscoso, “Feds demanding more info about compa-nies’ customers,” Atlanta Journal Constitution, August 17,2003; available online at http://www.ajc.com/business/con-tent/business/0803/17patriot.html.

51 Rod Smith, “Sources: FBI gathered visitor information onlyin Las Vegas,” Las Vegas Review Journal, January 7, 2004;online at http://www.reviewjournal.com/lvrj_home/2004/Jan-07-Wed-2004/news/22934251.html. “Surveillance City,” edi-torial, Las Vegas Review-Journal, Jan. 11, 2004; online athttp://www.reviewjournal.com/lvrj_home/2004/Jan-11-Sun-2004/opin-ion/22961926.html.

52 “Transactional Records NSLs Since 10/26/2001," availableonline at http://www.aclu.org/patriot_foia/foia3.html. See alsoDan Eggen and Robert O’Harrow Jr., “US Steps Up SecretSurveillance: FBI, Justice Dept. Increase Use of Wiretaps, RecordsSearches,” Washington Post, March 24, 2003; online athttp://www.washingtonpost.com/ac2/wp-dyn/A16287-2003Mar23.

53 Associated Press, “Net Effect: Antiterror Eavesdropping:Privacy Advocates Worry Civil Rights May be Trampled,”May 27, 2002; available online at http://tinyurl.com/xmai.

54 Atlanta Journal Constitution, August 17, 2003, op. cit.

55 Miles Benson, “In the Name of Homeland Security,Telecom Firms Are Deluged With Subpoenas,” NewhouseNews Service, April 10, 2002; online at http://www.new-house.com/archive/story1a041002.html.

56 Stewart Baker, former General Counsel of the NSA, quoted in ibid.

57 U.S. Department of Justice, “Joint Petition For Expedited

Rulemaking,” March 10, 2004; available online at http://www.step-toe.com/publications/FBI_Petition_for_Rulemaking_on_CALEA.pdf.Declan McCullagh and Ben Charmy, “FBI adds to wiretap wishlist,” CNET News, March 12, 20042004; online athttp://news.com.com/2100-1028-5172948.html. Declan McCullagh,“Inside Cisco’s Eavesdropping Apparatus,” CNET News, April21, 2003, online at http://news.com.com/2010-1071-997528.html.

58 Kevin Poulsen, “Cyber Security Plan Contemplates U.S.Data Retention Law,” SecurityFocus, June 18, 2002. Thereport, which was based on unnamed sources, was denied bythe White House.

59 Letter from James J. Foster, U.S. Mission to the EU (transmittingPresident Bush’s proposal), to Romano Prodi, President of theEuropean Commission, October 16, 2001, online athttp://www.statewatch.org/news/2001/nov/06Ausalet.htm.

60 “Majority of governments introducing data retention of com-munications,” Statewatch, January 12, 2003, online athttp://www.statewatch.org/news/2003/jan/12eudatret.htm.

61 See Edward Hasbrouck, “What’s wrong with CAPPS-II?";online at http://hasbrouck.org/articles/CAPPS-II.html.

62 Over the long run, the CRSs may reap significant financialbenefits from selling the enhanced travel data they will be col-lecting, but the cost of collecting that data is still likely to bepassed on to consumers (see p. 21).

63 Cynthia L. Webb, “Uncle Sam Mothballs Screening Program,”WashingtonPost.com, July 16, 2004; online at http://www.wash-ingtonpost.com/wp-dyn/articles/A54487-2004Jul16.html.

64 Richard Spillenkothen, Federal Reserve Board, “TestimonyBefore the Committee on Banking, Housing, and Urban Affairs,U.S. Senate,” January 29, 2002; online at http://www.federalre-serve.gov/boarddocs/testimony/2002/20020129/default.htm.

65 The USA-Patriot Act, P.L. 107-56, Section 365, 115 Stat. 272(Oct. 26, 2001). Scott Bernard Nelson, “Patriot Act wouldmake watchdogs of firms,” Boston Globe, November 18, 2001.

66 Inflation figures calculated using the historical inflation cal-culator at http://www.inflationdata.com.

67 Quoted in Nelson, op. cit.

68 “Financial Crimes Enforcement Network; SpecialInformation Sharing Procedures to Deter Money Launderingand Terrorist Activity: Final Rule,” 67 Federal Register, 60,579(Sept. 26, 2002); the regulations stem from section 314 of thePatriot Act. Michael Isikoff, “Show Me the Money: Patriot Acthelps the Feds in cases with no tie to terror,” Newsweek, Dec.1, 2003, online at http://www.msnbc.com/news/997054.asp.

69 The rules do prohibit banks from disclosing the names to oth-ers, but they can themselves use them in “determining whether toestablish or maintain an account, or to engage in a transaction.”67 Federal Register, 60,579, 60,586 (Sept. 26, 2002).

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http://www.cdt.org/security/usapatriot/030528cdt.pdf

http://www.aclu.org/SafeandFree/SafeandFree.cfm?ID=13246&c=206

http://www.aclu.org/patriot

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http://www.washingtonpost.com/ac2/wp-dyn/A16287-2003Mar23

http://tinyurl.com/xmai

http://www.newhouse.com/archive/story1a041002.html

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http://www.statewatch.org/news/2003/jan/12eudatret.htm

http://hasbrouck.org/articles/CAPPS-II.html

http://www.washingtonpost.com/wp-dyn/articles/A54487-2004Jul16.html

http://www.federalreserve.gov/boarddocs/testimony/2002/20020129/default.htm

http://www.inflationdata.com

http://www.msnbc.com/news/997054.asp

70 “Transactions and Customer Identification Programs; FinalRules and Proposed Rule,” Federal Register, 25089 (May 5,2003). See also Kathleen Pender, “Would-be investor runsafoul of Patriot Act,” San Francisco Chronicle, August28, 2003; online at http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2003/08/28/BU298595.DTL.Portland Press Herald, “Banks tighten rules on proving identi-ty,” Portland Press Herald, Sept. 22, 2003.

71 Brian Braiker, “The ‘Patriot’Search,” Newsweek Online, June 3,2004; online at http://msnbc.msn.com/id/5131685/site/newsweek.

72 Sara B. Miller, “Blacklisted by the bank,” Christian ScienceMonitor, August 25, 2003; online athttp://www.csmonitor.com/2003/0825/p15s01-wmcn.html.

73 Ann Davis, “Far Afield: FBI’s Post-Sept. 11 ‘Watch List’Mutates,Acquires Life of Its Own,” Wall Street Journal, Nov. 19, 2002.

74 Amy Lee, “Blues, Aetna help hunt terrorists: Client, workerfiles checked against fed list,” Detroit News, Nov. 16, 2003;“Insurance Giants Search for Terrorists,” Associated Press,Nov. 17, 2003.

75 The ACLU has filed a lawsuit on behalf of individuals victim-ized by these inaccurate lists. See http://www.aclu.org/nofly.

76 Bruce Schneier, CRYPTO-GRAM newsletter, April 15, 2003;online at http://www.schneier.com/crypto-gram-0304.html. Seealso Schneier, Beyond Fear (New York: Copernicus Books,2003), chapter 3.

77 James Gordon Meek, “13 Million on Terror Watch List,” NewYork Daily News, April 8, 2003; online at http://www.nydai-lynews.com/04-08-2003/news/wn_report/story/73628p-68132c.html. TomGodfrey, “5 million on [U.S.] terrorism list,” Toronto Sun,January 20, 2004; online athttp://www.canoe.ca/NewsStand/TorontoSun/News/2004/01/20/318488.html.

78 Dennis Hevesi, “When the Credit Check Is Only the Start,”New York Times, October 12, 2003; online athttp://query.nytimes.com/gst/fullpage.html?res=9C07E0D8163FF931A25753C1A9659C8B63. Douglas Hanks III, “Creditbureaus screening for terrorists,” Miami Herald, July 6, 2003; online athttp://www.miami.com/mld/miamiherald/6231536.htm.

79 Adam Geller, “High-Tech Background Checks Hit Stores,”Associated Press, March 8, 2004; available online athttp://seattlepi.nwsource.com/business/aptech_story.asp?cate-gory=1700&slug=Background%20Check.

80 PROTECT Act, P.L. 108-21, Section 108 (April 30, 2003);FBI presentation delivered at meeting of National Crime andPrevention and Privacy Compact Council, Alexandria,Virginia, October 3, 2003.

81 The USA-Patriot Act, Section 1012, P.L. 107-56, 115 Stat.272 (Oct. 26, 2001).82 Geller, op cit.

83 Donna A. Bucella, Director, FBI Terrorist ScreeningCenter, “Statement Before The House JudiciaryCommittee, Subcommittee on Crime, Terrorism, andHomeland Security, and the House Select Committee onHomeland Security, Subcommittee On Intelligence andCounterterrorism,” March 25, 20042004; online athttp://www.fbi.gov/congress/congress04/bucella032504.htm.See also Guy Taylor, “FBI up for private screens,” WashingtonTimes, March 26, 2004; online athttp://www.washtimes.com/national/20040326-124121-1245r.htm.

84 Caitlin Harrington, “Even Pawn Shops Feel the Hand of thePatriot Act,” Congressional Quarterly, March 2, 2004.

85 Meredith Jordan, “Banks Bracing for Effects of USA PatriotAct,” Atlanta Business Chronicle, November 8, 2002.

86 AJC, August 17, 2003.

87 Lucas Mearian, “Brokerages face big IT bills to comply withUSA Patriot Act,” ComputerWorld, March 17, 2003.

88 Judith Lavoie, “Canada risks U.S. privacy invasion:Canadians’ personal information could be put in the hands ofthe FBI under American Patriot Act,” Times Colonist(Victoria), March 4, 2004.

89 New York State Banking Department, “Banking DepartmentFines Western Union $8 Million for Violating Bank Secrecy,USA Patriot, New York Banking Laws,” press release and con-sent agreement, Dec. 18, 2002; online at http://www.bank-ing.state.ny.us/pr021218.htm.

90 Edward Hasbrouck, “Comments Re: Docket NumberDHS/TSA-2003-1, ‘Passenger and Aviation SecurityScreening Records’" ; online at http://hasbrouck.org/arti-cles/Hasbrouck_TSA_comments-30SEP2003.pdf. See alsoHasbrouck, “Why CAPPS-II would cost a billion dollars,” blogentry, February 13, 2004; online athttp://hasbrouck.org/blog/archives/000149.html.

91 International Air Transport Association, “AirlineReservation System and Passenger Name Record (PNR)Access by States,” March 15, 2004, p. 3; online athttp://www.icao.int/icao/en/atb/fal/fal12/documenta-tion/fal12wp074_en.pdf.

92 See General Accounting Office, “Computer-AssistedPassenger Prescreening System Faces SignificantImplementation Challenges,” GAO-04-385, February 2004;online at http://www.gao.gov/new.items/d04385.pdf.

93 Bridger Systems, Inc., “Homeland Tracker 5.5, OFAC Tracker 5.5,World Tracker 5.5: Windows Manual,” 2003; online athttp://www.bridgertracker.com/Downloads/WindowsManual55.pdf.

94 Eunice Moscoso, “Feds demanding more info about com-panies’ customers,” Atlanta Journal Constitution, August 17,2003available online at http://www.ajc.com/business/con-tent/business/0803/17patriot.html. Deloitte & Touche

37


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http://seattlepi.nwsource.com/business/aptech_story.asp?category=1700&slug=Background%20Check

http://www.fbi.gov/congress/congress04/bucella032504.htm

http://www.washtimes.com/national/20040326-124121-1245r.htm

http://www.banking.state.ny.us/pr021218.htm

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http://www.gao.gov/new.items/d04385.pdf

http://www.bridgertracker.com/Downloads/WindowsManual55.pdf


LLP, Anti-Money Laundering Compliance Survey,October 10, 2003 at 2. Available athttp://www.deloitte.com/dtt/cda/doc/content/dtt_finan-cialservices_AMLComplianceSurvey_101003.pdf.

95 Nancy Holtzman, Association of Corporate Travel Executives,testimony before the Subcommittee on Aviation of the HouseTransportation and Infrastructure Committee,” March 15, 2004;online at http://www.acte.org/resources/press_release/testimo-ny_to_congress.shtml.

96 “Recommendations on Acxiom,” e-mail from Doug Dyer toJohn Poindexter and Robert Popp, all of DARPA, May 21, 2002(obtained through a Freedom of Information Act Request by theElectronic Privacy Information Center [EPIC]); , availableonline at http://www.epic.org/privacy/profiling/tia/darpaacx-iom.pdf.

97 Seisint, Inc., “Matrix Michigan Briefing,” May 8, 2003, slideentitled “Seisint’s Core Capabilities” (document obtainedthrough open-records requests filed by ACLU).

98 John Schwartz, “Privacy Fears Erode Support for a Network toFight Crime,” New York Times, March 15, 2004; online athttp://www.nytimes.com/2004/03/15/technology/15matrix.html.

99 Robert O’Harrow Jr., “LexisNexis To Buy Seisint For $775Million: Data Firm’s Matrix Tool Generated Controversy,”Washington Post, July 15, 2004; online at http://www.washing-tonpost.com/wp-dyn/articles/A50577-2004Jul14.html.

100 John Markoff, “Experts Say Technology Is WidelyDisseminated Inside and Outside Military,” New York Times, May21, 2003; online at http://www.nytimes.com/2003/05/21/interna-tional/worldspecial/21PROG.html.

101 Michael J. Sniffen, “Controversial Terror Research LivesOn,” Associated Press, February 23, 2004; available online athttp://www.washingtonpost.com/wp-dyn/articles/A63582-2004Feb23.html.Bill Powell, “Inside the CIA,” Fortune, Sept. 29, 2003.

102 General Accounting Office, “Data Mining: Federal EffortsCover a Wide Range of Uses,” GAO-04-548, May 2004;online at http://www.gao.gov/new.items/d04548.pdf. TheCIA and NSA did not participate in the GAO’s survey.

103 See Chris Jay Hoofnagle, "Big Brother's Little Helpers: HowChoicePoint and Other Commercial Data Brokers Collect,Process, and Package Your Data for Law Enforcement,"University of North Carolina Journal of International Law &Commercial Regulation, Vol. 29 No. 4 (Summer 2004).

104 Chris Hoofnagle, “Barriers to the Constitutional Right to Privacy:Big Business is keeping an eye on you,” San Francisco Chronicle,January 29, 2004; online at http://www.sfgate.com/cgi-bin/arti-cle.cgi?file=/chronicle/archive/2004/01/29/EDGH14JBAN1.DTL.

105 “Experian partners with Best Buy: INSOURCE data con-tributes to Best Buy’s successful Customer RelationshipManagement (CRM) strategy," Experian brochure, online at

http://www.experian.com/case_studies/best_buy.pdf.

106 Abacus Direct slide show, untitled, online at http://www.aba-cus-direct.com/resource/planningtools/Acquisition.ppt. Or seeExperian, “Harnessing the power of consumer data,” whitepaper, p. 7; online at http://www.experian.com/whitepapers/exper-ian%5fdata%5fwhite%5fpaper%5f2002.pdf.

107 See information on EPIC Freedom of Information Act lawsuit;online at http://www.epic.org/privacy/choicepoint/default.html;Glenn R. Simpson, “Big Brother-in-Law: If the FBI Hopes to GetThe Goods on You, It May Ask ChoicePoint” Wall Street Journal,April 13, 2001; William Matthews, “Commercial database useflagged,” Federal Computer Week, January 16, 2002; online athttp://www.fcw.com/fcw/articles/2002/0114/web-epic-01-16-02.asp.

108 Seisint Inc., “Seisint’s FACTS ™ For The Matrix Project,”September 29, 2003, p. 27; online athttp://www.aclu.org/Privacy/Privacy.cfm?ID=15233&c=130.Institute for Intergovernmental Research, “Application forFederal Assistance to the Office of Justice Programs Bureauof Justice Assistance,” September 24, 2002, in possession ofACLU.

109 Hoofnagle “Little Helpers,” 611.

110 LexisNexis, “Exhibit B: Lexis-Nexis Select LimitedDistribution Authorized Use List” (document obtained byEPIC from the U.S. Marshalls Service); online athttp://epic.org/privacy/choicepoint/cpusms7.30.02e.pdf. Citedin Hoofnagle, "Little Helpers," 604.

111 Hoofnagle “Little Helpers,” 607-610.

112 Martin Finucane, “Cop on the beat now a walking database,”Associated Press, June 24, 2004; available online ath t tp : / /www.hera ld t r ibune .com/apps /pbcs .d l l / a r t i -c le?AID=/20040624/APN/406240822.

113 Christian Parenti, The Soft Cage (New York: Basic Books,2003), 92-95; Donner, 414-451.

114 These points are made in a different context in Jane Mayer,“Contract Sport: What did the Vice-President do forHalliburton?” The New Yorker, Feb. 16, 2004; online athttp://www.newyorker.com/fact/content/?040216fa_fact.

115 Patrick Howe, “Growing use of private police network raisesconcerns,” Associated Press, October 30, 20032003; availableonline at http://www.interesting-people.org/archives/inter-esting-people/200310/msg00220.html. Patrick Howe,“Expert questions database’s legality,” Associated Press,December 2, 2003; available online athttp://www.twincities.com/mld/pioneerpress/news/local/7391055.htm.Patrick Howe, “Minnesota Public Safety: Police Want Databaseback,” Associated Press, February 16, 2004; available online athttp://www.sanluisobispo.com/mld/twincities/news/7962881.htm.

116 Robert O’Harrow Jr. and Liz Leyden, “U.S. Helped FundLicense Photo Database,” Washington Post, February 18, 1999;

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http://www.deloitte.com/dtt/cda/doc/content/dtt_financialservices_AMLComplianceSurvey_101003.pdf

http://www.acte.org/resources/press_release/testimony_to_congress.shtml

http://www.epic.org/privacy/profiling/tia/darpaacxiom.pdf

http://www.nytimes.com/2004/03/15/technology/15matrix.html

http://www.washingtonpost.com/wp-dyn/articles/A50577-2004Jul14.html

http://www.nytimes.com/2003/05/21/international/worldspecial/21PROG.html

http://www.washingtonpost.com/wp-dyn/articles/A63582-2004Feb23.html

http://www.gao.gov/new.items/d04548.pdf

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/01/29/EDGH14JBAN1.DTL

http://www.experian.com/case_studies/best_buy.pdf

http://www.abacus-direct.com/resource/planningtools/Acquisition.ppt

http://www.experian.com/whitepapers/experian%5fdata%5fwhite%5fpaper%5f2002.pdf

http://www.epic.org/privacy/choicepoint/default.html

http://www.fcw.com/fcw/articles/2002/0114/web-epic-01-16-02.asp

http://www.aclu.org/Privacy/Privacy.cfm?ID=15233&c=130

http://epic.org/privacy/choicepoint/cpusms7.30.02e.pdf

http://www.heraldtribune.com/apps/pbcs.dll/article?AID=/20040624/APN/406240822

http://www.newyorker.com/fact/content/?040216fa_fact

http://www.interesting-people.org/archives/interesting-people/200310/msg00220.html

http://www.twincities.com/mld/pioneerpress/news/local/7391055.htm

http://www.sanluisobispo.com/mld/twincities/news/7962881.htm

online at http://www.washingtonpost.com/ac2/wp-dyn?page-name=article&node=business/specials/privacy/robertohar-row&contentId=A48643-1999Feb18. Declan McCullagh,“Smile for the U.S. Secret Service,” Wired News, September 7, 1999.

117 Jeffrey Rosen, “Silicon Valley’s Spy Game,” New York TimesMagazine, April 14, 2002

118 “Xybernaut – Wearable Computing – Face Recognition forPublic Safety,” Email from Xybernaut Corp. executive to offi-cial at Dallas Fort-Worth Airport, September 18, 2001, in pos-session of ACLU.

119 Bob Davis, “Massive Federal R&D Initiative To Fight TerrorIs Under Way,” Wall Street Journal, November 25, 2002. PaulMagnusson and Mike McNamee, “Welcome to Security Nation,”BusinessWeek, June 14, 2004; online at http://www.business-week.com/magazine/content/04_24/b3887036_mz011.htm. Seealso Brendan I. Koerner, “The Security Traders,” Mother Jones,September 1, 2002; available online at http://www.newameri-ca.net/index.cfm?pg=article&pubID=1023.

120 Megan Lisagor, “TSA awards passenger screening contract,”Federal Computer Week, March 4, 2004; online athttp://www.fcw.com/fcw/articles/2003/0310/news-tsa-03-10-03.asp.

121 Center for Public Integrity, “The Buying of the President 2004:General Wesley K. Clark,” undated. Online athttp://www.bop2004.org/bop2004/candidate.aspx?cid=12&act=bio.

122 United States Senate, Office of Public Records, LobbyFiling Disclosures; online at http://sopr.senate.gov/.

123 Philip Shenon, “Former Domestic Security Aides Switch toLobbying,” New York Times, April 29, 2003; online athttp://www.nytimes.com/2003/04/29/politics/29HOME.html.

124 Adam Mayle and Alex Knott, “Outsourcing Big Brother:Office of Total Information Awareness Relies on Private Sectorto Track Americans,” Center for Public Integrity, December17, 20022002; online at http://www.public-i.org/dtaweb/report.asp?ReportID=484. William New, “Backto the Future,” National Journal, June 14, 2002.

125 Robert O’Harrow Jr., “U.S. Backs Florida’s New CounterterrorismDatabase,” Washington Post, August 6, 2003; online athttp://www.washingtonpost.com/ac2/wp-dyn/A21872-2003Aug5.

126 Paul Rogers and Elise Ackerman, “Oracle boss urges national IDcards, offers free software,” Mercury News, September 22, 2001.

127 See for example, Robert O’Harrow Jr., “FacialRecognition System Considered For U.S. Airports,”Washington Post, September 24, 2001; online athttp://www.washingtonpost.com/ac2/wp-dyn?pagename=arti-cle&node=&contentId=A14273-2001Sep23.

128 House Permanent Select Committee on Intelligence andthe Senate Select Committee on Intelligence, “Report ofthe Joint Inquiry Into the Terrorist Attacks of September 11,

2001,” December 2002, pp. 6-32; online athttp://www.gpoaccess.gov/serialset/creports/911.html.National Commission on Terrorist Attacks Upon the United States, StaffStatements #9-12; online at http://www.9-11commission.gov/staff_state-ments.htm.

129 The Fourth Amendment reads, “The right of the people to besecure in their persons, houses, papers, and effects, againstunreasonable searches and seizures, shall not be violated, andno warrants shall issue, but upon probable cause, supported byoath or affirmation, and particularly describing the place to besearched, and the persons or things to be seized.”

130 In 1967 the Supreme Court finally recognized the right to pri-vacy in telephone conversations in the case Katz v. U.S. (389 US347), reversing the 1928 opinion Olmstead v. U.S. (277 US 438).

131 President Dwight D. Eisenhower, “Farewell Address,” January17, 1961; online at http://eisenhower.archives.gov/farewell.htm.

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http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=business/specials/privacy/robertoharrow&contentId=A48643-1999Feb18

http://www.businessweek.com/magazine/content/04_24/b3887036_mz011.htm

http://www.newamerica.net/index.cfm?pg=article&pubID=1023

http://www.fcw.com/fcw/articles/2003/0310/news-tsa-03-10-03.asp

http://www.bop2004.org/bop2004/candidate.aspx?cid=12&act=bio

http://sopr.senate.gov/

http://www.nytimes.com/2003/04/29/politics/29HOME.html

http://www.publici.org/dtaweb/report.asp?ReportID=484

http://www.washingtonpost.com/ac2/wp-dyn/A21872-2003Aug5

http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&node=&contentId=A14273-2001Sep23

http://www.gpoaccess.gov/serialset/creports/911.html

http://www.9-11commission.gov/staff_statements.htm

http://eisenhower.archives.gov/farewell.htm

OTHER SAFE AND FREE REPORTS

Conduct Unbecoming: Pitfalls In The President’sMilitary Commissions (March 2004)

Sanctioned Bias: Racial Profiling Since 9/11(February 2004)

America’s Disappeared: Seeking InternationalJustice For Immigrants Detained After September11 (January 2004)

A New Era of Discrimination? Why AfricanAmericans Should Be Alarmed About the AshcroftTerrorism Laws (September 2003)

Unpatriotic Acts: The FBI’s Power to Rifle ThroughYour Records and Personal Belongings WithoutTelling You (July 2003)

Seeking Truth From Justice: PATRIOTPropaganda—The Justice Department’s Campaignto Mislead The Public About the USA PATRIOT Act(July 2003)

Independence Day 2003: Main Street America Fightsthe Federal Government’s Insatiable Appetite forNew Powers in the Post 9/11 Era (July 2003)

Freedom Under Fire: Dissent in Post-9/11 America(May 2003)

Bigger Monster, Weaker Chains: The Growth of anAmerican Surveillance Society (January 2003)

Insatiable Appetite: The Government’s Demandfor Unnecessary Powers After September 11(October 2002)

Civil Liberties After 9/11: The ACLU DefendsFreedom (September 2002)

National Headquarters125 Broad Street, 18th Fl.New York, NY 10004-2400

(212) 549-2500www.aclu.org

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