by Elliot D. Cohen
In 1972, Nixon's burglars, all members of the Committee to Reelect the President, had to risk breaking into Democratic National Headquarters to try to gain an unfair election advantage for the GOP over its Democratic opponent. Now, with Total Information Awareness in place, the Bush White House may not even have to flip a switch to have the Dems' private e-mails and phone conversations delivered to its doorstep. Unfortunately, this may only be the tip of the iceberg for the fate of free elections in America if Congress decides to grant legal status and retroactive immunity to this massive surveillance and data mining operation conducted by giant telecoms on behalf of the President.
Last week, the Senate Judiciary Committee failed to decide on provisions of the FISA Amendments Act of 2007 that would grant telecom corporations ironclad retroactive immunity against civil suits and criminal prosecution for helping the Bush Administration engage in systematic, widespread, warrantless surveillance and data mining of the contents of both domestic and foreign phone and e-mail messages of Americans since at least 2001, and possibly earlier. Instead, the Committee sent two versions of the bill to the full Senate, one of which granted retroactive immunity to telecoms and the other of which did not. Now, the fate of Fourth Amendment protections against unreasonable search and seizure -- including its implications for the future of free and fair elections in America -- rests in the hands of the Senate.
In The New York Times article on November 14, 2002, William Safire warned about the dangers of the Total Information Awareness project:
"Every purchase you make with a credit card, every magazine subscription you buy and medical prescription you fill, every Web site you visit and e-mail you send or receive, every academic grade you receive, every bank deposit you make, every trip you book and every event you attend -- all these transactions and communications will go into what the Defense Department describes as ''a virtual, centralized grand database.'' To this computerized dossier on your private life from commercial sources, add every piece of information that government has about you -- passport application, driver's license and bridge toll records, judicial and divorce records, complaints from nosy neighbors to the F.B.I., your lifetime paper trail plus the latest hidden camera surveillance -- and you have the supersnoop's dream: a ''Total Information Awareness'' about every U.S. citizen."
But in 2003, the dangers of which Safire warned were addressed by Congress, or at least so it seemed. Amid outcry from civil liberties advocates, this TIA project, which then operated under the Department of Defense (DOD), was defunded. However, under a classified addendum to the Department of Defense Appropriation Act for fiscal year 2004, lawmakers secretly continued funding of TIA component technologies. It did so under two conditions: first, these technologies were transferred to a government agency other than the DOD; and second, they were used only for foreign surveillance and not for spying on American citizens.
According to a 2006 article published in the National Journal, the program was subsequently transferred to an arm of the National Security Agency (NSA). This technology acquired by NSA included technology for integrating the various components of the program as well as artificial intelligence for searching and analyzing massive amounts of electronic message content, according to predefined search criteria. Since the TIA project's R&D also included translating voice messages such as telephone conversations in diverse spoken languages into searchable text messages, it is reasonable to believe that the NSA also had access to such language translation software.
It is therefore not likely a coincidence that the same type of technology as just described now appears to be deployed by the NSA in a massive surveillance and data mining operation being conducted with the assistance of telecom corporations, notably AT&T. Currently pending against AT&T are at least 30 civil suits, including a class action suit filed by the Electronic Frontier Foundation (EFF) alleging that AT&T helped the NSA to illegally spy on the phone and e-mail messages of millions of Americas by copying and routing all incoming electronic messages to secret rooms hidden deep inside major AT&T hubs within the United States. According to EFF, these secret rooms, which require NSA clearance, contain "powerful computer equipment connected to separate networks." "This equipment," it claims, "is designed to analyze communications at high speed, and can be programmed to review and select out the contents and traffic patterns of communications according to user-defined rules."
Apparently, the TIA project, presumed to have been scrapped in 2003, is not now just in the research and development stage; it has actually been deployed. Seen in this light, the recent merger between AT&T and Southern Bell takes on new significance. Whatever else it portends, the granting of this merger by a Bush top-heavy Federal Communication Commission can also be seen as a logistical move to expand the sweep of TIA. This also explains why AT&T was willing to cooperate with the White House in engaging in surveillance activities, the legality of which its army of attorneys could have well anticipated would eventually be challenged -- and could easily expose the corporation to costly lawsuits. Like other corporate decisions, AT&T's decision had to be based on a careful cost-benefit analysis with the prospect of lucrative mergers such as the one with Southern Bell weighing in on the positive side. At the same time, this also explains why the Bush Administration now seeks to shield AT&T from civil and criminal liability for its assistance. To do otherwise would not only be to expose its own unlawful, clandestine surveillance of American citizens -- including the lies it has disseminated to the public about such activity having been restricted to foreign surveillance; but also it would place in peril the infrastructure of a massive surveillance and data mining system that has the potential to intercept, store, search, and analyze the flow of information coming into and out of the United States.
With the present deployment of TIA, it may be pointless to speak of democracy. Free elections are no longer possible when the regime in power has the ability to control the transfer of information. In fact, in a March 7, 2007 report, the Government Accountability Office (GAO) has expressed concerns about relying on telecommunication services for transmitting electronic votes from individual polling stations to a central tabulation center. It states,
"Computer security experts have raised concerns... about voting system standards that are not sufficient to address the weaknesses inherent in telecommunications and networking services. ...Regarding telecommunications and networking services, selected computer security experts believe that relying on any use of telecommunications or networking services, including wireless communications, exposes electronic voting systems to risks that make it difficult to adequately ensure their security and reliability -- even with safeguards such as encryption and digital signatures in place."
While the issues surrounding electronic voting are highly technical and controversial, it is beyond question that a telecom such as AT&T that strains the electronic flow of information, according to undisclosed search criteria, could also in principle act as a so-called "man in the middle" by intercepting, analyzing, and changing votes before they reach their final destination.
If telecoms become immune from investigation, then such voter fraud could be carried out en mass without the possibility of judicial review. There would be nothing more destructive to the existence of democracy than the inability for transfer of power to occur by a free election, according to the rule of law and a constitutional procedure.
The fate of democracy may therefore now be in the hands of Congress. If retroactive legal immunity is given to telecom corporations, this will not only mark the beginning of the end for the Fourth Amendment but also for democracy in America. Sadly, those Americans who quip that, in the interest of defending freedom and democracy, they do not care if their phone and e-mail messages are examined by government, do not grasp the self-defeating nature of what they are saying. In giving up their Fourth Amendment rights, they will have also given up their democracy.
Presently, the American Civil Liberties Organization (ACLU), in addition to a few other advocacy organizations, is working against granting telecoms retroactive legal immunity. Americans who want to preserve democracy have a moral obligation to send a letter to their Senators telling them to block passage of this measure.
A BUZZFLASH GUEST CONTRIBUTION
Elliot D. Cohen, Ph.D. is a media ethicist and critic. His most recent book is "The Last Days of Democracy: How Big Media and Power-Hungry Government Are Turning America Into a Dictatorship." He is a first-prize winner of the 2007 Project Censored Award.
