Slouching Towards 1984

 

The US House of Representatives voted 273-147 last week to extend the many tenacles of the surveillance state by forcing businesses as mundane as fitness centers or hardware stores to assist the NSA in warrantless searches of US citizens.

The founders would be aghast. 

The framers of the United States Constitution were so concerned that the government would intrude on the private lives of citizens that they wrote a prohibition on warrantless searches of persons and property into Article 4 the Constitution.  Article 4 states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Yet warrantless searches of the electronic communications of US citizens is exactly what this bill allows. 

Elizabeth Goitein of the Brennan Center explained in a series of posts on Twitter/X

I’ll explain how this new power works. Under current law, the government can compel “electronic communications service providers” that have direct access to communications to assist the NSA in conducting Section 702 surveillance.

In practice, that means companies like Verizon and Google must turn over the communications of the targets of Section 702 surveillance. (The targets must be foreigners overseas, although the communications can—and do—include communications with Americans.)

Through a seemingly innocuous change to the definition of “electronic communications surveillance provider,” an amendment offered by House intel committee (HPSCI) leaders and passed by the House vastly expands the universe of entities that can be compelled to assist the NSA.

If the bill becomes law, any company or individual that provides ANY service whatsoever may be forced to assist in NSA surveillance, as long as they have access to equipment on which communications are transmitted or stored—such as routers, servers, cell towers, etc. That sweeps in an enormous range of U.S. businesses that provide wifi to their customers and therefore have access to equipment on which communications transit. Barber shops, laundromats, fitness centers, hardware stores, dentist’s offices… the list goes on and on. 

It also includes commercial landlords that rent out the office space where tens of millions of Americans go to work every day—offices of journalists, lawyers, nonprofits, financial advisors, health care providers, and more.

Ron Paul explains how the National Security Agency and other elements of the surveillance states have used loopholes in Section 702 to conduct surveillance of US citizens.

Section 702 authorizes warrantless surveillance of foreign citizens. When the FISA Act was passed, surveillance state boosters promised that 702 warrantless surveillances would never be used against American citizens. However, intelligence agencies have used a loophole in 702, allowing them to subject to warrantless surveillance any American who communicated with a non-US citizen who was a 702 target. Intelligence agencies could then also conduct warrantless surveillance on any Americans who communicated with the new American target. This Section 702 loophole has been used so often to subject Americans to warrantless wiretapping that it has been referred to as the surveillance state’s crown jewel.

Section 702 has already been widely abused by the NSA, FBI and other spying agencies.  Just last year court documents revealed that the FBI had improperly searched for information on US citizens 278,000 times including searches for information on January 6 defendants and the killing of George Floyd. 

Young Americans should be particularly concerned.  It’s no fun to be watched by the government all the time.  Just ask Chinese dissidents like When Chen. 

When Chen picked up his phone to vent his anger at getting a parking ticket, his message on WeChat was a drop in the ocean of daily posts on China's biggest social network.  But soon after his tirade against "simple-minded" traffic cops in June, he found himself in the tentacles of the communist country's omniscient surveillance apparatus.  Chen quickly deleted the post, but officers tracked him down and detained him within hours, accusing him of "insulting the police".  He was locked up for five days for "inappropriate speech".

George Orwell wrote of the dangers of mass surveillance in Nineteen Eighty Four.  His 1949 novel was intended as a warning of how the surveillance state would crush the individual and free thought.  Unfortunately, in modern Washington, Orwell’s novel is more like a “how-to” manual.