Tuesday, February 27, 2007

Big Brother Is Reading Your E-Mails


Copyright © 2007 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

The best public-affairs show on television these days is NOW, airing every Friday at 8:30 p.m. on KPBS in San Diego. (Out-of-town readers should check their local listings because, unlike the commercial networks, PBS gives its stations the authority to show national programs any time they like, or not show them at all.) On February 16, NOW broadcast an especially chilling episode in which the host, David Brancaccio from National Public Radio, and reporter Brian Meyers revealed a secret federal program to spy on every single e-mail sent by, or through, AT&T’s telecommuncations network.

It’s not like this is such a big surprise. After all, it was already a matter of public record that AT&T — the sprawling conglomerate, formerly Southwestern Bell, that is industriously merging with the other “Baby Bells” to reassemble the telephone monopoly broken up by antitrust litigation in 1984 — had already thrown the doors open to federal investigators from the National Security Agency (NSA) to tap every single phone call involving an AT&T customer at either end. Under orders from the Bush administration, NSA and AT&T did this even though it was flatly illegal for two reasons: first, the government wasn’t bothering with search warrants for this information (not even from the secret court set up under the 1978 Foreign Intelligence Services Act); and second, NSA isn’t allowed to spy on American citizens or residents at all unless they’re communicating with people in other countries.

Not long after the Democrats took control of Congress in the November 2006 election, attorney general Alberto Gonzalez announced that the Bush administration had suspended the phone taps. Only a few days later he had backtracked, saying the administration was still doing them but now it had got blanket authority from the secret FISA court, so it was no longer being done without court approval and therefore the lawsuits filed to stop it were now moot. Now, thanks to NOW, we know that the NSA, under orders from the Bush administration and with the active connivance of AT&T, is monitoring not only all telephone calls that run through AT&T’s lines but all e-mails as well.

The story Brancaccio and Meyers told at times seemed reminiscent of a bad spy movie. Mark Klein, the former AT&T employee who blew the whistle on the program, and James Brosnahan, his attorney, described secret rooms that were set up at AT&T offices in San Francisco and St. Louis. Only AT&T employees with special security clearances were allowed in those rooms, which contained hardware that electronically read every e-mail traveling over AT&T’s lines, copied it, then sent the copies to NSA while the originals were routed to the intended recipients.

What’s more, unlike the phone-tapping program, the e-mail monitoring appears to be perfectly legal. That’s because 20 years ago, before most Americans had even heard of the Internet, Congress passed a law that said that, because employees of an Internet service provider can read an e-mail as it’s passing through their network, e-mails are no more private than postcards. Unless the legal team of the Electronic Frontier Foundation (EFF) can persuade the courts that government spying on people’s e-mails is a constitutional violation of the people’s right to be “secure from unwarranted searches and seizures” under the Fourth Amendment — a difficult task now that the Bush administration has been in office long enough to pack the federal judiciary with judges who reject the idea that a constitutional right to privacy exists — there’s nothing to stop a willful government and a compliant private corporation from cutting a deal that allows Big Brother to read all your e-mails.

NOW’s report documented the personal cost of this government program. “I’ve personally never been afraid of my government, until now,” attorney Nancy Hollander said. “And now I feel personally afraid that I could be locked up tomorrow.” Hollander’s concern stems from her legal work for Muslim Americans, including a group called the Holy Land Foundation, which in 2004 the government accused of aiding Hamas, the combination armed militia and political party in occupied Palestine. To defend her client against the charge of supporting terrorism through its alleged links to Hamas, Hollander had to find out more about Hamas. In the old days, before the Bush administration and its systematic assault on privacy, that might have meant surfing the Web, sending a few e-mails and placing some phone calls. Now it means a week-long trip to the Middle East to meet a Palestinian representative and pick up his documents in person, out of the reach of the long arms of the federal government and its electronic spying program.

What’s more, according to NOW, the federal government, while justifying spying on e-mails as necessary for “national security” and to fight the “war on terrorism,” is using information gleaned from e-mail surveillance for much more trivial prosecutions. NOW interviewed Martin Weinberg, attorney for the owner of a company that’s being accused of fraud because it allegedly marketed herbal supplements on line and claimed they could enlarge a penis. You can be righteously indignant about all the ads for penis enlargement that clutter up your inbox and still be equally upset about the authoritarian tactics the feds are using to nail a purveyor of these products.

According to Weinberg, the government built virtually its entire case against his client by subpoenaing deleted e-mails from his Internet service provider. “These orders, these subpoenas, were limitless,” he said. “They didn’t protect husband-wife communications. They didn’t protect communications to friends and to family. They provided the government with the entirety of any e-mail that was retained by the Internet service provider.” What’s more, Congress is now considering a bill that would require ISP’s to keep copies of all e-mails forever — and make them available to government investigators on demand.

Unless and until America’s government passes into the hands of rational people who actually accept the right of privacy and see the Constitutional guarantees as worthy of protection instead of an impediment to an aggressive ‘war on terror,” there’s not much you can do to protect yourself against government spying. Bear in mind at all times that Big Brother is watching and listening to you, and that he’s armed with digital software that can not only intercept all your phone calls and e-mails but scan them for supposedly “suspicious” words that can get you arrested and accused of aiding and abetting terrorism. Don’t be lulled by the appearance of privacy on the Internet. A good rule of thumb for the modern era is: if you wouldn’t be willing to shout it out on a street corner and let it be heard by all passers-by, don’t say it on the phone or write it in a e-mail.