I’ve stayed away from writing about privacy and the NSA, mostly because I have mixed feelings about the government collecting massive amounts of metadata for terrorism investigations. I can understand the concept of having a haystack in order to find the needle. That doesn’t mean I was comfortable with the idea.
Then there were other revelations, such as the mass use of license plate scanners. Ok, we’ve had speed cameras for years that more or less did the same thing in a limited set of circumstances. Beyond that, license plates are required to be prominently displayed on all vehicles. It’s not as if that information is secret or private while driving down a street.
The next revelation was XKeyscore, which apparently gobbled up everything everybody does on the Internet. If that wasn’t enough for the government, it made demands on major companies such as Google, Facebook, and others for master encryption keys and user passwords. Things are starting to get squishy in the name of fighting terrorism.
Now Reuters is reporting that The DEA has a Special Operations Division that uses information gathered from “partner” agencies including the FBI, CIA, NSA, Internal Revenue Service, and the Department of Homeland Security to catch and prosecute major drug activity. It’s been secret enough that the standard operating procedure was to give tips to agents with instructions to create a parallel construction, as it’s called, hiding the true source of the investigation. Agents would work the investigation backwards so it would start with some innocuous event.
Prosecutors and judges would never be aware of the source of the ultimate information that leads to charges. Various prosecutors and law enforcement officials quoted in the story question the constitutionality of this practice in regard to Sixth Amendment right to face accusers. One of the ways this has worked for so long (the program was established in 1994, predating the war on terrorism) is because defendants often pled guilty. Thus, the need to disclose anything becomes moot.
It’s all very disturbing because of mission creep. Former federal judge Nancy Gertner is quoted as saying:
“It is one thing to create special rules for national security,” Gertner said. “Ordinary crime is entirely different. It sounds like they are phonying up investigations.”
That’s exactly the point. Collecting all of this information for terrorism is one thing. It’s another to use it for other governmental interests, or even personal interests. The government has lots of information tucked away in its data centers. The haystack is not a secret anymore. What would happen if a plaintiff attorney decided to subpoena information related to a client? I don’t expect the NSA to turn it over, but I would be curious has to how the legal theories would play out.
Here’s another quote:
“You can’t game the system,” said former federal prosecutor Henry E. Hockeimer Jr. “You can’t create this subterfuge. These are drug crimes, not national security cases. If you don’t draw the line here, where do you draw it?”
Yes, indeed. Where does one draw the line? Either reform the surveillance program or get rid of it. The slippery slope is starting to show itself.
