It is simply an invariable truth in the history of politics, in the history of government, that whenever a new power is acquired in the name of some threat, it always — not sometimes, not often, not usually —it always extends beyond its original application, beyond its original justification.
–Glenn Greenwald (video @36:30)
Hey kids, it’s time to revisit the World’s Bestest Ever and Most Useful Ever Acronym Ever: #muschniwogdowis! And it will continue to be the bestest ever and most useful ever acronym ever until it is no longer true that Most US Citizens Have No Idea What Our Government Does Or Who It Serves.
Today’s fun topic is “parallel construction.” It comes to our attention via this piece in The Daily Beast:
AT&T Is Spying on Americans for Profit, New Documents Reveal
The telecom giant is doing NSA-style work for law enforcement—without a warrant—and earning millions of dollars a year from taxpayers.
Hemisphere is a secretive program run by AT&T that searches trillions of call records and analyzes cellular data to determine where a target is located, with whom he speaks, and potentially why.
In 2013, … [t]he Times described it as a “partnership” between AT&T and the U.S. government; the Justice Department said it was an essential, and prudently deployed, counter-narcotics tool.
However, AT&T’s own documentation—reported here by The Daily Beast for the first time—shows Hemisphere was used far beyond the war on drugs to include everything from investigations of homicide to Medicaid fraud.
Hemisphere isn’t a “partnership” but rather a product AT&T developed, marketed, and sold at a cost of millions of dollars per year to taxpayers. No warrant is required to make use of the company’s massive trove of data, according to AT&T documents, only a promise from law enforcement to not disclose Hemisphere if an investigation using it becomes public.
Exactly how massive is this trove? Unlike other carriers, AT&T stores all metadata going back to 2008, and many records go back to 1987. It owns the vast majority of the nation’s landline switches, and the second largest share of wireless infrastructure, and captures details for every call, text, Skype session, fax or other communication that passes through its circuits. The New York Times reported in 2013 that AT&T’s database is believed to be larger than anything the NSA has.
It works like this: millions of our tax dollars are paid to AT&T so federal, state and local law enforcement agencies can have access to Hemisphere. Then they can simply ask AT&T for whatever it is they want by means of an “administrative subpoena,” which does not require probable cause. Dedicated AT&T employees go fishing in trillions of records, probably including yours, and let them know what they find. Neat, huh?
Now, there are a couple tiny little problems with this whole setup. One is an ancient and obscure document called the United States Constitution, and specifically Amendment IV thereto that not many people have ever heard of (much less sworn to uphold or anything):
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.
A second little problem with this scheme arises because those charged with a crime are required to be informed of “the nature and cause of the accusation,” and have the right to confront witnesses and refute the evidence against them. Here’s the snag: law enforcement only gains access to Hemisphere data if they agree not to use it as evidence. The contract with AT&T states: “The Government agency agrees not to use the data as evidence in any judicial or administrative proceedings unless there is no other available and admissible probative evidence.” Seems rather strange if this is all perfectly legal and on the up-and-up, no?
So you’ve obtained evidence of criminal wrongdoing, but you cannot use it in court. Quite the conundrum! Fortunately, this problem has a cure: parallel construction. You construct a false narrative of your investigation, use routine police procedures to find probable cause, get your warrants, and obtain the very same evidence. Now it can be presented in court. Et voilà! LIARS 4 JUSTICE FTW.
Attorney for Electronic Frontier Foundation (EFF) Adam Schwartz notes:
“I’ve seen documents produced by the government regarding Hemisphere, but this is the first time I’ve seen an AT&T document which requires parallel construction in a service to government. It’s very troubling and not the way law enforcement should work in this country…
“At a minimum there is a very serious question whether they should be doing it without a warrant. A benefit to the parallel construction is they never have to face that crucible. Then the judge, the defendant, the general public, the media, and elected officials never know that AT&T and police across America funded by the White House are using the world’s largest metadata database to surveil people.”
To say nothing of what it means that the government and one of the nation’s largest corporations with access to intimate details of the lives of innocent citizens are, for all practical purposes, one and the same entity.
This story is nothing new, not really. For example, parallel construction came to public attention for a split second more than three years ago, when a well-sourced Reuters article revealed the scope and scale of domestic law enforcement using the expanded tools and powers justified and sold (quite literally) to us under the pretext of fighting terrorism. AT&T was not mentioned and mechanics of the con were described a little differently. DEA’s Special Operations Division (SOD), a partnership with two dozen agencies including the FBI, CIA, NSA, Internal Revenue Service and the Department of Homeland Security, tips off local cops to suspected drug activity. The police know they cannot reveal the source of the tip, so they engineer some ruse—say, a routine traffic stop—to make the investigation appear perfectly ordinary and legitimate. A former federal agent who received such tips described the process this way:
“You’d be told only, ‘Be at a certain truck stop at a certain time and look for a certain vehicle.’ And so we’d alert the state police to find an excuse to stop that vehicle, and then have a drug dog search it,” the agent said.
And get this:
Current and former federal agents said SOD tips aren’t always helpful – one estimated their accuracy at 60 percent.
40% of these tips are inaccurate? Gosh, what could possibly go wrong?
But what is new here, at least to me, is how a writer at The Daily Beast just casually notes that warrantless mass surveillance is now being deployed for tracking Medicaid fraud and other crimes that go well beyond the War on Drugs—as if that were already a perfectly legal and accepted use of these technologies and powers justified in the name of fighting terrorism.
Maybe you don’t see the big deal here? In that case, GET OFFA MAH BLOG YOU AUTHORITARIAN FUCKIN’ SHITWIT. As I’ve written before:
And what possible coherent justification can there be anyway, for laws and powers supposedly targeting only suspected terrorists not to be used against ordinary citizens suspected of minor crimes? That is the very reason to object to unconstitutional surveillance in the first place: because we already know how this movie ends from, you know, all of history—including the recent history of the United States. This is what governments do whenever they can get away with it: entrench their own power and suppress dissent. Always.
But the most damning indictment of our sprawling, unaccountable, lawless and lucrative mass surveillance state is that it does not work—at least not for its alleged purpose of stopping terrorism. In 2015, CNN buried this little nugget in its (non)story about Patriot Act provisions (not) expiring:
As it stands, several official review boards — including a presidential review group and a government privacy oversight board — found that the bulk metadata collection program was not essential to thwarting a single terror plot.
That should have been the end of it of course. But because it was not, I will never miss an opportunity to make two points, both of which should appear in every single media report about these surveillance programs:
Terrorist attacks have indeed been thwarted—not by mass surveillance, but by ordinary citizens.
- Despite NSA’s massive surveillance operations, Richard Reid, the would-be “Shoe Bomber” managed to get a bomb on board an American Airlines flight to Miami. When he tried to set it off, passengers smelled smoke, subdued him and bound him up. Hello? NSA? Hello?
- Then, with their amazing and vast surveillance powers and a heads up from CIA, US intelligence officials actually let suspected al-Qaeda collaborator Umar Farouk Abdulmutallab board a flight to the US. They were planning to let him into the states, too: they knew he was coming, and refused to let his visa be revoked. Unfortunately, he had a bomb in his underwear on the flight. Passengers subdued him, too. Thanks again, NSA.
- Then there was Faisal Shahzad, the would-be “Times Square Bomber.” A t-shirt vendor noticed smoke coming out of an awkwardly parked SUV and alerted a mounted police officer, who called for assistance. The area was safely cleared and the bomb was defused. Law enforcement investigated over the next few days and narrowed in on Shahzad as the prime suspect. They put his name on the No Fly List (which even a known al-Qaeda collaborator wasn’t put on). Still, Shahzad was nonetheless able to buy a ticket to Dubai with cash at JFK airport, and board the plane. The flight was a few minutes from takeoff before the authorities caught up with him. The plane returned to the gate and he was arrested without incident.
T-shirt vendor: 1. NSA surveillance: 0.
- Even lawn chair copter d00d announced his exact plans a year ago on his blog, then in his hometown newspaper, and in a video posted online by The Tampa Bay Times. And the Secret Service only investigated him because they were tipped off… by a concerned citizen.
- The Boston bombing case should have unplugged the entire surveillance state apparatus immediately and permanently. The U.S. government was tipped off twice about Tamerlan Tsarnaev by the Russian Federal Security Bureau. He had been on a terrorist watch list for eighteen months before he and his brother set off bombs that killed three people and injured 264 others at the scene. WHERE THE FUCK WAS THE NSA. I’ll tell you where they were—which brings me to point 2.
While NSA is very busy not stopping terrorists, their programs are used for other purposes.
- For years NSA, FBI and CIA agents would sit around all day playing World of Warcraft, Second Life and a bunch of mobile app games, based on some cockamamie rationale about their ability to flush out terrorists by playing online video games. This wasn’t just a handful of rogue dudebros, either: there were so many agents playing that they had to set up “deconfliction” groups just to make sure they weren’t accidentally spying on each other. It would be hilarious if only this were all they ever did. But it isn’t.
- American citizens Laura Poitras, David House, Lisa M. Wayne, Pascal Abidor, and Jacob Applebaum have all been detained without warrants at U.S. borders, questioned, and had their possessions searched or confiscated. (Poitras alone has been stopped more than forty times.) None of them have been accused of a crime, much less anything terrorism-related.
- Department of Homeland Security Theatre™ (DHS) analysts had its agents scrutinizing online comments that “reflect adversely” on the U.S. government.
- For a two month period, the Justice Department captured the records of more than 20 phone lines of reporters and editors at The Associated Press, including their personal phones. I guess there must be terrorists at the AP?
- But non-violent Occupy protesters are indeed terrorists, according to the NYPD. (The FBI even learned of a plot to kill Occupy activists but remained silent about it: Keeping Us Safe™ FTW.) Counterterrorism tactics have also been used to infiltrate and monitor liberal political groups including anti-war organizations, environmental activists, groups opposed to U.S. immigration policy, labor laws and racial profiling, supporters of Palestinians and the Israeli divestment campaign, and anti-NAFTA activists. Other law enforcement agencies around the country have spied on anti-death penalty groups, Ron Paul supporters and pro-Muslim lobbyists. Ten peaceful protesters at Halliburton are also serious threats to national security.
Tl; dr: to the extent domestic mass surveillance ever had anything to do with terrorism, it has been an epic fucking failure. To the extent it doesn’t have anything to do with terrorism, maybe we should be talking about that?