PNN - &/29/14
Ed Bell 7:17 - 7:47pm
Lilian Stajbaher 7:48 - 8:18pm
Jack Seigel 8:19 - 8:55pm
Show for My Father
1. Farmers take their COWS TO TOWN
AFP, June 20, 2014: Angry Japanese farmers say their animals are poisoned by radiation — A cow from Fukushima arrives in front of the agriculture ministry in Tokyo. Farmers delivered the cow to demand the government to study why it and many other cows have developed white dots on their skin after the Fukushima nuclear plant went into meltdown. [...] Fellow Fukushima farmer Naoto Matsumura said: “What if this started happening to people? We have to examine the cause of this and let people know what happened to these animals.” The vast farmland in Fukushima has been contaminated by radioactive materials
2. YAKIMA WA - RISE IN MUTATIONS TOUTED
EPR, May 14, 2014 (Emphasis Added): Serious and sometimes fatal birth defects are much more prevalent right here than anywhere else in the country. Benton, Franklin and Yakima Counties are being hit the hardest by neural tube defects, from spina bifida to anencephaly [fatal defect where large part of brain/skull is missing]. “it’s scary that the cause of this is such a mystery,” said Candelaria Murillo. […] Rate of babies being born without a brain in our part of the state is eight times the national average.
AP and other media outlets put the figure at “at least four times the national rate”. However, the Yakima Herald reports: “[Officials] issued a news release Jan. 30 announcing that eight cases of anencephaly had occurred in Yakima County in 2012. Typically [they] expect only one all year.”
NBC News, June 17, 2014: Health officials, scientists and other experts gathered to discuss the cause of an alarming local spike in the disorder [...] [Local residents] wanted to know exactly how long the problem had been going on, whether it could be linked to diet, occupation, geography — or the Hanford nuclear plant in nearby Richland. State officials reiterated their previous answers — no, no, no and no [...] “The next step is to interview the mothers and fathers of these babies,” [Allison Ashley-Koch, an anencephaly expert at the Duke University Medical Center for Human Genetics] said. “The challenge at this point is that many of these conceptions happened four years ago. So for parents to try and remember particular eating habits, environmental exposures and such is challenging.” […] “I believe it is an ongoing problem and I believe that the environment might have something to do with it,” Don Dufault said.
3. New LEVELS ACHIEVED
CNN, June 1, 2014: Nearly two years after the state of Washington was alerted to a possible cluster of babies born with severe birth defects, experts are speaking out, criticizing the state health department for not doing enough to save babies’ lives. [...] The Washington Department of Health has steadfastly refused to interview the parents of these babies and has failed to accept offers of help from world-renowned anencephaly experts. “It really looks like they’re dragging their feet,” said Richard Finnell, a pediatric geneticist and birth defect expert at the University of Texas. He said that to find the cause of the cluster, state investigators need to speak with the parents of children with birth defects [...] But the state has not contacted these parents. [...] A team of experts [...] offered help to Washington investigators back in February but hasn’t received a response. “We’re frustrated that they’re not moving more quickly to find the cause,” said Janee Gelineau-van Waes [...] an associate professor of pharmacology at the Creighton University School of Medicine [...] “It’s very intrusive to start knocking on doors of people who’ve had a pretty major trauma in their lives,” [state epidemiologist, Juliet VanEenwyk] said. “That’s the lamest excuse I’ve ever heard,” said Billy Petersen, reflecting the viewpoint of several families interviewed by CNN whose children have neural tube defects. “We want to talk to them,” he said. “We’d do anything to help find out why our baby died and help other families. We don’t want anyone else to go through what we’ve been through.”
4. Sen. Elizabeth Warren (D-Mass.) has built a sizable political profile — by espousing a simple idea: that the system is "rigged" against average Americans.
And you might be surprised who agrees with her: A whole bunch of conservatives.
According to a new Pew survey, 62 percent of Americans think that the economic system unfairly favors the powerful, and 78 percent think that too much power is concentrated in too few companies. The discontent isn't limited to those who share Warren's liberal ideology; 69 percent of young conservative-leaning voters and 48 percent of the most conservative voters agree that the system favors the powerful, according to Pew.
Although Warren seems an outlier in the legislative branch for her fiery discontent with inequality — and the role she says Wall Street plays in exacerbating it — the Pew survey suggests that the vast majority of Americans are at least open to her underlying premise.
Everyone, that is, except business conservatives. This faction has vastly different views of the American economic system than most Americans. Two-thirds of business conservatives think the economic system is fair to most people, and 57 percent think that large companies do not have too much power.
The demographics that bind business conservatives go a long way toward explaining why they diverge on this issue. The business conservatives that Pew surveyed were the most affluent of the seven political types they defined — 45 percent have family incomes above $75,000. Fifty-seven percent of business conservatives say they are interested in business and finance, and 68 percent invest in the stock market. No other type has them beat on these two measures.
Americans' political beliefs are generally grounded in how they see politics interact or interfere with their own lives. We can focus on the diner-embed model of analyzing politics day and night, but for most Americans, gossiping about how a next-door neighbor lost their house or a cousin got a promotion at Goldman Sachs is all they've got. Business conservatives think the economic system is fair; others who aren't as enmeshed in it disagree.
So does conservative discontent with the current economic system mean that the rest of Congress is going to hang Thomas Piketty posters on their office walls and head to Zuccotti Park? (Or vote for Elizabeth Warren?)
Don't count on it. Business conservatives' confidence in the economic system might differ from everyone else, but business conservatives are politically active enough to make a big impression on politicians. Seventy-one percent of the business conservatives surveyed by Pew say they always or nearly always vote in primaries. "Steadfast conservatives" are similarly active too, but they aren't quite as affluent as their conservative counterparts, and they don't donate nearly as much money.
5. TE Lawrence Right Again
What We Can Learn From Lawrence of Arabia (Moyers/Winship)
As fears grow of a widening war across the Middle East, fed by reports that the Islamic State of Iraq and Syria (ISIS) envisions a region-wide, all controlling theocracy, we found ourselves talking about another war. The Great War – or World War I, as it would come to be called — was triggered one hundred years ago this month when an assassin shot and killed Austria’s Archduke Ferdinand in Sarajevo. Through a series of tangled alliances and a cascade of misunderstandings and blunders, that single act of violence brought on a bloody catastrophe. More than 37 million people were killed or wounded.
In America, if we reflect on World War I at all, we think mostly about the battlefields and trenches of Europe and tend to forget another front in that war — against the Ottoman Empire of the Turks that dominated the Middle East. A British Army officer named T.E. Lawrence became a hero in the Arab world when he led nomadic Bedouin tribes in battle against Turkish rule. Peter O’Toole immortalized him in the epic movie, “Lawrence of Arabia.”
You may remember the scene when, after dynamiting the Hijaz railway and looting a Turkish supply train, Lawrence is asked by an American reporter, “What, in your opinion, do these people hope to gain from this war?”
“They hope to gain their freedom,” Lawrence replies, and when the journalist scoffs, insists, “They’re going to get it. I’m going to give it to them.”
At war’s end, Lawrence’s vision of Arab independence was shattered when the Versailles peace conference confirmed the carving of Iraq, Syria, Lebanon and Palestine into British and French spheres of influence; arbitrary boundaries drawn in the sand to satisfy the appetites of empire – Britain’s Foreign Office even called the former Ottoman lands “The Great Loot.”
The hopeful Lawrence drew his own “peace map” of the region, one that paid closer heed to tribal allegiances and rivalries. The map could have saved the world a lot of time, trouble and treasure, one historian said, providing the region “with a far better starting point than the crude imperial carve up.” Lawrence wrote to a British major in Cairo: “I’m afraid you will be delayed a long time, cleaning up all the messes and oddments we have left behind us.”
Since 2003, as the reckless invasion of Iraq unfolded, demand for Lawrence’s book, “Seven Pillars of Wisdom” increased eightfold. It was taught at the Pentagon and Sandhurst — Britain’s West Point — for its insights into fighting war in the Middle East. In 2010, Major Niel Smith, who had served as operations officer for the US Army and Marine Corps Counterinsurgency Center, told The Christian Science Monitor, “T.E. Lawrence has in some ways become the patron saint of the US Army advisory effort in Afghanistan and Iraq.”
But then and now, Lawrence’s understanding of the ancient and potent jealousies of the people among whom he had lived and fought generally was ignored. In 1920, he wrote for the Times of London an unsettling and prophetic article about Iraq – then under the thumb of the British. He decried the money spent, the number of troops and loss of life, and warned that his countrymen had been led “into a trap from which it will be hard to escape with dignity and honor. They have been tricked into it by a steady withholding of information…. Things have been far worse than we have been told, our administration more bloody and inefficient than the public knows. It… may soon be too inflamed for any ordinary cure. We are today not far from a disaster.”
Not for the last time in the Middle East would disaster come from the blundering ignorance and blinding arrogance of foreign intruders convinced by magical thinking of their own omnipotence and righteousness. How soon we forget. How often we repeat.
6. STINGRAY - the new "CONFIDENTIAL" POLICE SPY SOURCE
FLORIDA ACLU is FIGHTING FOR ACCESS to USE RECORDS - all FDLE will say is they spent Millions on HARRIS Corps new CELL PHONE SPYING TECHNOLOGY
Using not on terrorists but fishing expeditions across Florida - an if your home town peace officers can't buy it - FDLE will lend it our - they could call it LEND A SPY
and its ALL CONFIDENTIAL -
7. Surveillance Nation a new ebook by the Nation
Surveillance Nation is an intellectual feast for anyone concerned about the widespread abuses of privacy that Edward Snowden revealed just over a year ago. Among the selections included here: an editorial denouncing the federal government's original authorization of wiretapping, dating back to the days of Franklin Delano Roosevelt; Diana Trilling's review of George Orwell's classic 1984; Fred Cook’s 1958 exposé of J. Edgar Hoover's FBI; Frank Donner's advice for the Church Committee in 1975 (with the evocative title "The Issue, of Course, Is Power"); Herman Schwartz's essay "How Do We Know FISA Is Working?"—from 1983; an astounding history of The Nation as seen through its FBI file; and more recent contributions by Christopher Hitchens, Eric Foner, Patricia Williams, Laura Flanders, Jonathan Schell, Naomi Klein, Chris Hayes and Jaron Lanier.
A year after Snowden's revelations, one thing is clear: to understand how the surveillance state can be dismantled, we must first understand how it came to be constructed. "If we want to preserve the liberties that are the foundation of a healthy democracy," Cole writes, "we must keep our eye on them as they keep their eye on us. No journal has done that job as effectively and consistently and for as long as The Nation."
This is a special pre-publication announcement to our community of readers and supporters: Surveillance Nation is available to you as an e-book or a paperback through eBookNation.
By purchasing this unique history, you will not only learn about The Nation's vital role in investigating and condemning abuses of power in the past… you’ll be ensuring that we can continue to do so in the future.
Join the conversation. Download an e-book or order a paperback today! And thank you.
8. CLG - recording a peaceful protest - becomes a TERRORIST ACT -
say police in UK
Sheffield reporter threatened with arrest under anti-terrorism laws 24 Jun 2014 A reporter was threatened with arrest under anti-terrorism laws and forced to erase potentially important video evidence after filming a protest in Sheffield. The editor of the Sheffield Star has demanded an explanation as to why his reporter, Alex Evans, was warned off filming a protest against cuts to free travel provision for pensioners and disabled people by British transport police officers on Monday. Evans claims he was ordered to erase footage he'd recorded on his phone because he did not have permission to film on private property [!?!] inside Sheffield station. When he initially resisted the request and continued to film, he says he was told he could be arrested under terror laws.
9. CELLPHONE snooping limits on Police say Supremes
Supreme Court limits police searches of cellphones 25 Jun 2014 Cellphones and smartphones generally cannot be searched by police without a warrant during arrests, the Supreme Court ruled unanimously Wednesday in a major victory for privacy rights. Ruling on two cases from California and Massachusetts, the justices acknowledged both a right to privacy and a need to investigate crimes. The judges said police still can examine "the physical aspects of a phone to ensure that it will not be used as a weapon." But once secured, they said, "data on the phone can endanger no one" and the arrested person will not be able to "delete incriminating data." CLG - citizens for legitimate government
10. Like Lyndon said, their just advisors, what could go wrong?
50 caliber advise eh? - CLG
More U.S. forces arrive in Baghdad, two-star general leads effort 26 Jun 2014 Another 50 U.S. special operations forces have arrived in Baghdad under the newly appointed command of a two-star general as the U.S. military steadily ramps up an advisory 'mission' aimed at helping Iraq battle back Sunni militants [to protect oil refineries], the Pentagon said on Thursday. The Pentagon said the first of two planned Joint Operations Centers in Iraq had also become activated, bolstering its ability to oversee U.S. teams and gather information about the situation on the ground, including about Iraq's security forces.
11. DETROITERS - appeal to UN for access to WATER
that has been denied to them by their representatives
United Nations experts declared Wednesday that the city of Detroit's shut-off of water to thousands of residents who are unable to pay their bills "constitutes a violation of the human right to water" and may be discriminatory against African-Americans.
“The households which suffered unjustified disconnections must be immediately reconnected,” said UN Special Rapporteur on adequate housing Leilani Farha, UN Special Rapporteur on extreme poverty and human rights Philip Alston, and UN Special Rapporteur on the right to safe drinking water and sanitation Catarina de Albuquerque, in a joint statement issued Wednesday.
“If these water disconnections disproportionately affect African Americans they may be discriminatory, in violation of treaties the U.S. has ratified,” said Farha.
The statement comes in response to last week's plea from concerned organizations for the United Nations to intervene to stop Detroit from denying water to its residents.
The Detroit Water and Sewerage Department has been cutting off water to homes where residents have fallen behind on their water bills, escalating these disconnections in June to 3,000 a week. In a city with a poverty rate near 40 percent, and unemployment far above the national average, nearly half of all residents are behind on their water bills and tens of thousands of households are slated for water disconnection.
Meanwhile, the city is also aggressively hiking water rates, with the city council approving an 8.7 percent increase in water rates last week in addition to climbing prices over the past decade.
The aggressive water shut-offs are "indicative of broader, systematic issues resulting from decades of policies that put profits before people," declared Food and Water Watch, the Blue Planet Project, The Michigan Welfare Rights Organization and The Detroit People’s Water Board in a joint statement released Wednesday.
Many suspect that the drive to shut off water is part of a city plan, backed by Emergency Manager Kevyn Orr, to privatize the Detroit Water and Sewerage Department.
The disconnection of water is creating a "major" crisis across the city, warn the groups. “Two-thirds of these shutoffs are occurring in homes with children. In addition to not being able to bathe, prepare food and flush toilets, many are fearful that their children will be taken from them if they report any problems related to their water," reads the joint statement from concerned organizations.
They add, "We are relieved that the United Nations has issued a statement declaring these massive water shutoffs a human rights violation, but now what? Can there be any hope or even an expectation that poor, working families will be allowed to access water without giving up their first born child? Unfortunately, many in Detroit have lost all hope."
12. In Blow to Safe Abortion Access, Supreme Court Rejects 'Buffer Zone'
Justices unanimously side with argument that safe zones around clinics violate protesters' free speech
In a blow to safe access to reproductive health care services, the U.S. Supreme Court on Thursday ruled (pdf) against a state effort to enforce a 35-foot buffer zone around abortion clinics.
"This decision turns back the clock to the days when women were too intimidated by protestors to seek medical care," said Megan Amundson, executive director of NARAL Pro-Choice Massachusetts. "Women’s health will suffer because of it."
Ruling on McCullen v. Coakley, the justices unanimously sided with plaintiff Eleanor McCullen who argued that the buffer zone established by the Massachusetts Attorney General violates her First Amendment rights.
"Today the Justices made it more difficult for states to protect their citizens," said Ilyse Hogue, President of NARAL Pro-Choice America. Hogue noted that since 1991, anti-choice activists have committed eight murders and 17 attempted murders.
"The law was supported by public safety officials whose goal is to protect women, doctors, and clinic workers from the relentless harassment and intimidation that they face daily," she added.
The law was implemented in 2007 after reports of intimidation, including pushing and shoving, outside of a Planned Parenthood in Boston.
Following the news, reaction came swiftly online as women's rights advocates decried the court's ruling.
As the ruling was handed down, women from across the country on Wednesday are meeting with lawmakers to push for the passage of the Women's Health Protection Act. The bill, which currently has over 150 co-sponsors in the House and Senate, protects women's health and constitutional right to safe abortion access and prohibits states from enacting laws that interfere with clinics' abilities to provide essential, safe reproductive health care.
13. Shredding the Fourth Amendment in Post-Constitutional America
By Peter Van Buren, TomDispatch
ere’s a bit of history from another America: the Bill of Rights was designed to protect the people from their government.
If the First Amendment’s right to speak out publicly was the people's wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Think of that as the essence of the Constitutional era that ended when those towers came down on September 11, 2001. Consider how privacy worked before 9/11 and how it works now in Post-Constitutional America.
The Fourth Amendment
A response to British King George’s excessive invasions of privacy in colonial America, the Fourth Amendment pulls no punches: “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.”
In Post-Constitutional America, the government might as well have taken scissors to the original copy of the Constitution stored in the National Archives, then crumpled up the Fourth Amendment and tossed it in the garbage can. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the Fourth Amendment itself: our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint. This would qualify as “unreasonable” in our old constitutional world, but no more.
Here, then, are four ways that, in the name of American “security” and according to our government, the Fourth Amendment no longer really applies to our lives.
The Constitutional Borderline
Begin at America's borders. Most people believe they are “in” the United States as soon as they step off an international flight and are thus fully covered by the Bill of Rights. The truth has, in the twenty-first century, become infinitely more complicated as long-standing practices are manipulated to serve the expanding desires of the national security state. The mining of words and concepts for new, darker meanings is a hallmark of how things work in Post-Constitutional America.
Over the years, recognizing that certain situations could render Fourth Amendment requirements impractical or against the public interest, the Supreme Court crafted various exceptions to them. One was the “border search.” The idea was that the United States should be able to protect itself by stopping and examining people entering the country. As a result, routine border searches without warrants are constitutionally “reasonable” simply by virtue of where they take place. It’s a concept with a long history, enumerated by the First Congress in 1789.
Here’s the twist in the present era: the definition of “border” has been changed. Upon arriving in the United States from abroad, you are not legally present in the country until allowed to enter by Department of Homeland Security (DHS) officials.
You know, the guys who look into your luggage and stamp your passport. Until that moment, you exist in a legal void where the protections of the Bill of Rights and the laws of the United States do not apply. This concept also predates Post-Constitutional America and the DHS. Remember the sorting process at Ellis Island in the late nineteenth and early twentieth centuries? No lawyers allowed there.
Those modest exceptions were all part of constitutional America. Today, once reasonable searches at the border have morphed into a vast “Constitution-free zone.” The “border” is now a strip of land circling the country and extending 100 miles inland that includes two-thirds of the U.S. population.
In this vast region, Customs and Border Protection (CBP) can set up checkpoints and conduct warrantless searches. At airports, American citizens are now similarly subjected to search and seizure as filmmaker Laura Poitras -- whose work focuses on national security issues in general and Edward Snowden in the particular -- knows firsthand. Since 2006, almost every time Poitras has returned to the U.S., her plane has been met by government agents and her laptop and phone examined.
There are multiple similar high-profile cases (including those of a Wikileaks researcher and a Chelsea Manning supporter), but ordinary citizens are hardly exempt. Despite standing in an American airport, a pane of glass away from loved ones, you are not in the U.S. and have no Fourth Amendment rights. How many such airport searches are conducted in the aggregate is unknown. The best information we have comes from a FOIA request by the ACLU. It revealed that, in the 18-month period beginning in October 2008, more than 6,600 people, about half of them U.S. citizens, were subjected to electronic device searches at the border.
Still, reminding us that it’s possible to have a sense of humor on the road to hell, the CBP offers this undoubtedly inadvertent pun at its website: “It is not the intent of CBP to subject travelers to unwarranted scrutiny.” (emphasis added)
Making It All Constitutional In-House
Here’s another example of how definitions have been readjusted to serve the national security state's overriding needs: the Department of Justice (DOJ) created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants.
Some background: a warrant is court permission to search and seize something. As the Fourth Amendment makes clear, it must be specific: enter Thomas Anderson's home and look for hacked software. Warrants can only be issued on “probable cause.” The Supreme Court defined probable cause as requiring a high standard of proof, or to quote its words, “a fair probability that contraband or evidence of a crime will be found in a particular place.”
A subpoena on the other hand is nothing more than a government order issued to a citizen or organization to do something, most typically to produce a document. Standards for issuing a subpoena are flexible, as most executive agencies can issue them on their own without interaction with a court. In such cases, there is no independent oversight.
The Department of Justice now claims that, under the Fourth Amendment, it can simply subpoena an Internet company like Facebook and demand that they look for and turn over all the records they have on our Mr. Anderson. Their explanation: the DOJ isn't doing the searching, just demanding that another organization do it. As far as its lawyers are concerned, in such a situation, no warrant is needed. In addition, the Department of Justice believes it has the authority to subpoena multiple records, maybe even all the records Facebook has. Records on you? Some group of people including you? Everyone? We don't know, as sources of data like Facebook and Google are prohibited from disclosing much about the information they hand over to the NSA or other government outfits about you.
It’s easy enough to miss the gravity of this in-house interpretation when it comes to the Fourth Amendment. If the FBI today came to your home and demanded access to your emails, it would require a warrant obtained from a court after a show of probable cause to get them. If, however, the Department of Justice can simply issue a subpoena to Google to the same end, they can potentially vacuum up every Gmail message you’ve ever sent without a warrant and it won’t constitute a “search.” The DOJ has continued this practice even though in 2010 a federal appeals court ruled that bulk warrantless access to email violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act similarly makes it clear that the Bureau’s agents don’t need warrants to access email in bulk when it’s pulled directly from Google, Yahoo, Microsoft, or other service providers.
How far can the use of a subpoena go in bypassing the Fourth Amendment? Recently, the inspector general of the Department of Veterans Affairs (VA) issued a subpoena -- no court involved -- demanding that the Project On Government Oversight (POGO) turn over all information it has collected relating to abuses and mismanagement at VA medical facilities. POGO is a private, non-profit group, dedicated to assisting whistleblowers. The VA subpoena demands access to records sent via an encrypted website to POGO under a promise of anonymity, many from current or former VA employees.
Rather than seek to break the encryption surreptitiously and illegally to expose the whistleblowers, the government has taken a simpler, if unconstitutional route, by simply demanding the names and reports. POGO has refused to comply, setting up a legal confrontation. In the meantime, consider it just another sign of the direction the government is heading when it comes to the Fourth Amendment.
Technology and the Fourth Amendment
Some observers suggest that there is little new here. For example, the compiling of information on innocent Americans by J. Edgar Hoover's low-tech FBI back in the 1960s has been well documented. Paper reports on activities, recordings of conversations, and photos of meetings and trysts, all secretly obtained, exposed the lives of civil rights leaders, popular musicians, and antiwar protesters. From 1956 to at least 1971, the government also wiretapped the calls and conversations of Americans under the Bureau’s counterintelligence program (COINTELPRO).
But those who look to such history of government illegality for a strange kind of nothing-new-under-the-sun reassurance have not grasped the impact of fast-developing technology. In scale, scope, and sheer efficiency, the systems now being employed inside the U.S. by the NSA and other intelligence agencies are something quite new and historically significant. Size matters.
To avoid such encroaching digitization would essentially mean withdrawing from society, not exactly an option for most Americans. More of life is now online -- from banking to travel to social media. Where the NSA was once limited to traditional notions of communication -- the written and spoken word -- new possibilities for following you and intruding on your life in myriad ways are being created. The agency can, for instance, now collect images, photos, and video, and subject them to facial recognition technology that can increasingly put a name to a face. Such technology, employed today at casinos as well as in the secret world of the national security state, can pick out a face in a crowd and identify it, taking into account age, changes in facial hair, new glasses, hats, and the like.
An offshoot of facial recognition is the broader category of biometrics, the use of physical and biological traits unique to a person for identification. These can be anything from ordinary fingerprinting to cutting-edge DNA records and iris scans. (Biometrics is already big business and even has its own trade association in Washington.)
One of the world's largest known collections of biometric data is held by the Department of State. As of December 2009, its Consular Consolidated Database (CCD) contained more than 75 million photographs of Americans and foreigners and is growing at a rate of approximately 35,000 records per day. CCD also collects and stores indefinitely the fingerprints of all foreigners issued visas.
With ever more data available, the NSA and other agencies are creating ever more robust ways to store it. Such storage is cheap and bounteous, with few limits other than the availability of electricity and water to cool the electronics. Emerging tech will surely bypass many of the existing constraints to make holding more data longer even easier and cheaper. The old days of file cabinets, or later, clunky disk drives, are over in an era of mega-data storage warehouses.
The way data is aggregated is also changing fast. Where data was once kept in cabinets in separate offices, later in bureaucratically isolated, agency-by-agency digital islands, post-9/11 sharing mandates coupled with new technology have led to fusion databases. In these, information from such disparate sources as license plate readers, wiretaps, and records of library book choices can be aggregated and easily shared. Basically everything about a person, gathered worldwide by various agencies and means, can now be put into a single “file.”
Once you have the whole haystack, there’s still the problem of how to locate the needle. For this, emerging technologies grow ever more capable of analyzing Big Data. Some simple ones are even available to the public, like IBM's Non-Obvious Relationship Awareness software (NORA). It can, for example, scan multiple databases, geolocation information, and social media friend lists and recognize relationships that may not be obvious at first glance. The software is fast and requires no human intervention. It runs 24/7/365/Forever.
Tools like NORA and its more sophisticated classified cousins are NSA's solution to one of the last hurdles to knowing nearly everything: the need for human analysts to “connect the dots.” Skilled analysts take time to train, are prone to human error, and -- given the quickly expanding supply of data -- will always be in demand. Automated analysis also offers the NSA other advantages. Software doesn't have a conscience and it can't blow the whistle.
What does all this mean in terms of the Fourth Amendment? It’s simple: the technological and human factors that constrained the gathering and processing of data in the past are fast disappearing. Prior to these “advances,” even the most ill-intentioned government urges to intrude on and do away with the privacy of citizens were held in check by the possible. The techno-gloves are now off and the possible is increasingly whatever an official or bureaucrat wants to do. That means violations of the Fourth Amendment are held in check only by the goodwill of the government, which might have qualified as the ultimate nightmare of those who wrote the Constitution.
On this front, however, there are signs of hope that the Supreme Court may return to its check-and-balance role of the Constitutional era. One sign, directly addressing the Fourth Amendment, is this week's unanimous decision that the police cannot search the contents of a cell phone without a warrant. (The court also recently issued a ruling determining that the procedures for challenging one's inclusion on the government’s no-fly list are unconstitutional, another hopeful sign.)
Prior to the cell phone decision, law enforcement held that if someone was arrested for, say, a traffic violation, the police had the right to examine the full contents of his or her cell phone -- call lists, photos, social media, contacts, whatever was on the device. Police traditionally have been able to search physical objects they find on an arrestee without a warrant on the grounds that such searches are for the protection of the officers.
In its new decision, however, the court acknowledged that cell phones represent far more than a "physical object." The information they hold is a portrait of someone's life like what’s in a closet at home or on a computer sitting on your desk. Searches of those locations almost always require a warrant.
Does this matter when talking about the NSA's technological dragnet? Maybe. While the Supreme Court's decision applies directly to street-level law enforcement, it does suggest an evolution within the court, a recognition of the way advances in technology have changed the Fourth Amendment. A cell phone is not an object anymore; it is now recognized as a portal to other information that a person has gathered in one place for convenience with, as of this decision, a reasonable expectation of privacy.
National Security Disclosures Under HIPPA
While the NSA’s electronic basket of violations of the Fourth Amendment were, pre-Snowden, meant to take place in utter secrecy, here’s a violation that sits in broad daylight: since 2002, my doctor can disclose my medical records to the NSA without my permission or knowledge. So can yours.
Congress passed the Health Information Portability and Accountability Act (HIPPA) in 1996 “to assure that individuals’ health information is properly protected.” You likely signed a HIPPA agreement at your doctor's office, granting access to your records. However, Congress quietly amended the HIPPA Act in 2002 to permit disclosure of those records for national security purposes. Specifically, the new version of this “privacy law” states: “We may also disclose your PHI [Personal Health Information] to authorized federal officials as necessary for national security and intelligence activities.” The text is embedded deep in your health care provider’s documentation. Look for it.
How does this work? We don’t know. Do the NSA or other agencies have ongoing access to the medical records of all Americans? Do they have to request specific ones? Do doctors have any choice in whose records to forward under what conditions? No one knows. My HMO, after much transferring of my calls, would ultimately only refer me back to the HIPPA text with a promise that they follow the law.
The Snowden revelations are often dismissed by people who wonder what they have to hide. (Who cares if the NSA sees my cute cat videos?) That's why health-care spying stands out. How much more invasive could it be than for your government to have unfettered access to such a potentially personal and private part of your life -- something, by the way, that couldn’t have less to do with American “security” or combating terrorism.
Our health-care providers, in direct confrontation with the Fourth Amendment, are now part of the metastasizing national security state. You’re right to be afraid, but for goodness sake, don't discuss your fears with your doctor.
How the Unreasonable Becomes Reasonable
At this point, when it comes to national security matters, the Fourth Amendment has by any practical definition been done away with as a part of Post-Constitutional America. Whole books have been written just about Edward Snowden and more information about government spying regularly becomes available. We don't lack for examples. Yet as the obviousness of what is being done becomes impossible to ignore and reassurances offered up by the president and others are shown to be lies, the government continues to spin the debate into false discussions about how to “balance” freedom versus security, to raise the specter of another 9/11 if spying is curtailed, and to fall back on that go-to “nothing to hide, nothing to fear” line.
In Post-Constitutional America, the old words that once defined our democracy are twisted in new ways, not discarded. Previously unreasonable searches become reasonable ones under new government interpretations of the Fourth Amendment. Traditional tools of law, like subpoenas and warrants, continue to exist even as they morph into monstrous new forms.
Americans are told (and often believe) that they retain rights they no longer have. Wait for the rhetoric that goes with the celebrations of our freedoms this July 4th. You won’t hear a lot about the NSA then, but you should. In pre-constitutional America the colonists knew that they were under the king's thumb. In totalitarian states of the last century like the Soviet Union, people dealt with their lack of rights and privacy with grim humor and subtle protest. However, in America, ever exceptional, citizens passively watch their rights disappear in the service of dark