Beyond the Panopticon: The NSA Isn’t Alone

This article is the second in a two part series that began with "Beyond the NSA: other agencies spy on you, too,"  originally published by on December 16, 2013.

The Panopticon is real. It siphons billions of dollars each year from a federal budget in crisis. And it is watching you and your children. Lost in the debate about NSA spying, however — and even most public resistance to it — have been the various other federal agencies also complicit in Fourth Amendment abuses.

Even critics of domestic surveillance have largely failed to recognize how many government agencies spy on Americans.

A presidential review panel recently recommended substantial changes to FBI powers, including ending the authority to issue National Security Letters. NSLs are secret data requests used to circumvent both First and Fourth Amendment protections, demanding information about third parties and gagging the recipients. The FBI’s pattern of abusing undercover infiltration to disrupt First Amendment protected organizations, however, stretches back decades, threatens democracy even more deeply than NSLs, and continues unabated.

Beyond the NSA and FBI, many other agencies are also involved in domestic surveillance. And all of them continue to evade public and congressional scrutiny.

Guarding our borders? Or using them to target Americans?

The Department of Homeland Security (DHS) is a sprawling behemoth, with nearly a quarter million employees scattered across nearly two dozen component agencies. While purporting to protect the “homeland” (a term with loaded connotations worth noting, but setting aside for now) from various threats, DHS spies on Americans in several disturbing ways. Some of the most dystopian piggyback on programs presented to the public as supporting immigration enforcement.

Border security agencies, like Customs & Border Protection (CBP) and Immigration & Customs Enforcement (ICE), have facilitated a record number of deportations under the Obama administration, creating a domestic humanitarian crisis. Critics of the administration’s immigration crackdown have vocally challenged its failures. According to the New York Times, “the department’s continually shifting strategies against illegal immigration had two things in common. They were ineffective and cruel.”

Two signs indicate interest within the administration in addressing the problem. Most recently, DHS got new leadership in former Pentagon General Counsel Jeh Johnson. While the future course of the department under his leadership remains unclear, he did reject the prevailing practice of filling deportation quotas in a letter to a Senator.

While these signs may encourage observers interested in a more humane immigration policy, however, they obscure an ongoing, more insidious narrative: immigration enforcement agencies are building a domestic biometric surveillance dragnet targeting not only immigrants, but also American citizens.

Under the pretext of immigration enforcement, ICE and CBP collaborate with the FBI to compile biometric data (such as fingerprints and iris scans) about anyone arrested by a local police department. This mass unconstitutional seizure essentially aims to create a national biometric identity scheme so sophisticated that no card is required.

In addition, CBP—which asserts plenary authority within 100 miles of any border to disregard constitutional rights—arbitrarily seizes laptops and other electronic devices from US citizens returning from international travel, often copying the contents for indefinite archival. US citizens have also endured unconstitutional CBP interrogations about their First Amendment protected political and religious beliefs.

Eyes & ears: state & local police

DHS also erodes constitutional rights through its collaborations with local police.

State and local law enforcement agencies around the country collaborate with a series of over 70 regional DHS-funded fusion centers pursuing ambiguous missions at unknown costs. DHS leaders have praised fusion centers, but critics — extending from the libertarian CATO Institute and immigrant rights groups to FBI veterans — have described them as wasteful, duplicative, constitutionally offensive, and ineffective from a public safety standpoint.

Targeted surveillance, of the sort abused by the FBI, is also a problem across state & local departments. For years, peace activists, Ron Paul supporters, environmentalists, and Muslims have been targeted for government spying in dozens of states--not only by the FBI, but also by state and local police. Until being shut down by the Governor in 2010, Pennsylvania state officials not only spied on environmental activists, but also shared its intelligence reports with their corporate targets, including mining companies.

DHS also facilitates the paramilitarization of local and state police agencies, which around the country have sought DHS grants to buy everything from sophisticated listening devices to surveillance cameras, automated drivers license plate scanners developed originally for military uses, aerial surveillance drones, and even armored tanks.

Neither rain, nor snow, nor sleet, nor hail, will stop Big Brother spying

Nor are law enforcement agencies the only ones joining the intelligence agencies to spy on Americans. Even the US Postal Service is getting in on the surveillance racket.

In July, the New York Times reported on the Mail Isolation Control and Tracking program, “in which Postal Service computers photograph the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces last year….” It concluded that “postal mail is subject to the same kind of scrutiny that the National Security Agency has given to telephone calls and e-mail.”

Like the NSA’s ubiquitous electronic wiretapping, postal surveillance carries disturbing implications, particularly in terms of enabling the suppression of political dissent. Most astounding in the context of the controversy over NSA spying, however, is the sheer ignorance about the postal service’s monitoring practices.

Congress: years late and billions short

After a decade of sitting on its hands, Congress is finally beginning to pay attention to its constitutional responsibility to check and balance executive power. But measures that aim to restrain only the NSA ultimately scratch at the surface.

The proposed USA Freedom Act was crafted by the PATRIOT act’s authors to restrain the NSA dragnet. While a far better alternative to competing congressional proposals to entrench NSA powers, even the USA Freedom Act would leave substantial domestic spying powers in place.

Rep. Rush Holt (D-NJ) is the only rocket scientist in Congress. He’s also the former chair of the House Intelligence Committee, the successor to the Pike committee that in the 1970s famously investigated decades of FBI crimes.

Holt introduced the Surveillance State Repeal Act to rescind the PATRIOT Act entirely, as well as the 2008 amendments to the Foreign Intelligence Surveillance Act. It is the only pending proposal that would force the FBI and NSA to justify their powers from a pre-9/11 baseline, as they should.

Unfortunately, most members of Congress who talk about privacy have yet to walk their talk. Even the Holt bill would fail to address recurring problems at the FBI, or CBP, or the US Postal Service, or state & local law enforcement agencies.

And with leading Democrats carrying the Bush administration’s water now that President Obama is holding the glass, it will take continued collaboration across the aisle -- along with continued public displays of creative dissent -- to rein in the surveillance state.

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