Protecting liberty by taking it away

Hasan Elahi carried a GPS device plotting his position and bombarded the FBI with information about his daily life. Photo / AP

Ten years down the road, it's been a long, strange trip as Americans ponder the corrosive impact of the Patriot Act - enacted hastily after the September 11, 2001 attacks against the United States - on their civil liberties.

Take Hasan Elahi, an associate professor and interdisciplinary artist at the University of Maryland. In June 2002, Elahi, 39, a US citizen, was stopped at Detroit airport by officials who wanted to know his whereabouts on September 12 and if he kept explosives in his locker - the prelude to six months of FBI questioning.

Subject to such unprecedented intrusion, Elahi launched an art project that flooded the FBI with myriad emails and images of his daily life, and carried a GPS device that plotted his position.

"The best way to protect your privacy is to give it away," he told Wired magazine.

Elahi concluded the sheer volume of minutiae debased its value. If 300 million Americans did the same, he reasoned, the US would need 300 million FBI agents just to keep up.

Such behaviour might have seemed insane, even to paranoids of an Orwellian bent, before the Patriot Act. But as the US spies on its citizens, eroding their freedoms while citing national security as justification, Elahi's project is a wry Facebook-era comment on the lack of official accountability in the "war on terror".

According to the American Civil Liberties Union (ACLU), the USA Patriot Act (an acronym for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) "made it easier to spy on ordinary Americans by expanding the authority to monitor phone and email communications, collect bank and credit reporting records, and track the activity of innocent Americans on the internet. While most Americans think it was created to catch terrorists, the Patriot Act actually turns regular citizens into suspects."

There is no evidence - or at least none put forward by US authorities - that the Patriot Act has foiled a single terrorist plot. But as Elahi's story shows, it has cast suspicion on many ordinary Americans and foreigners, snared for being three, four or more removes from a possible suspect.

The act expanded laws covering money laundering, foreign intelligence, immigration and electronic snooping. The growing reach of post-9/11 surveillance echoes the Echelon signals programme, shared by the US, Britain, Canada, Australia and New Zealand to spy on global telecommunications.

But 9/11 gave the Bush Administration a chance to increase domestic spying to levels that evoke the FBI's counter-intelligence programme, used to infiltrate left-wing "subversives" between 1956-71.

As the Patriot Act sends a Cold War chill through civil liberties - especially privacy protection - critics wonder if 9/11 was used to justify a wish list of tools to fight crimes.

Out of the 192,499 "national security letters" used by the FBI to sift through phone, computer and credit records without judicial oversight or probable cause, only one resulted in a terror-related conviction. The ACLU says this conviction could have been secured using other laws.

Of the 143,074 letters issued between 2003 and 2005, 53 led to reported prosecutions. Seventeen were for money-laundering, 17 for immigration and 19 for fraud. None was related to terrorism, suggesting national security letters are used as a fishing expedition, snaring criminals who might be prosecuted under other laws. It also leaves the inadvertent impression terrorists might be tried as criminals, undermining the whole US approach to the "war on terror".

In just nine national security letters, the FBI acquired the telephone records of 11,100 Americans. Anyone who receives a national security letter is required to remain silent under a government gag order. And the Patriot Act has no provision to expunge information, generating vast databanks of private material.

A New Yorker article by Jane Mayer on the case of Thomas Drake, the National Security Agency whistleblower, details allegations the US can use automated software to "data-mine" vast caches of purloined domestic communications.

But who watches the watchers?

"The hallmark of the Patriot Act was lowering the standard on collecting information on people who are suspected of doing anything wrong," said the ACLU's legislative counsel, Michelle Richardson.

"That is the number one effect. The administration is now in the business of collecting broad amounts of information to sift through and connect any dots. We're very suspicious of whether that process works."

Then there are the "sneak and peak" searches.

"It's a delayed-notice search warrant," Richardson said. "If the FBI wanted to go to your house they would get permission from a judge, not to actually serve you with the warrant ... The agents go in surreptitiously while you're at work and leave without you finding out."

While in a home or business, the FBI can take pictures and remove property - telling the owner later.

The warrant is not signed by any federal judge but by the secret Foreign Intelligence Surveillance Court, from which the public and media are barred. Ironically, the court was set up in 1978 to end abuse by federal agents caught in unlawful domestic surveillance.

Like national security letters, sneak and peaks are overwhelming used against ordinary crime, while ignoring legal safeguards like serving suspects in person. Of 3970 sneak and peaks last year, 76 per cent related to drug cases, 24 per cent to other crimes and 1 per cent to terrorism. This law enforcement overreach has arguably encouraged intrusive surveillance elsewhere via anti-terrorism laws, New Zealand's "Urewera 18" case being an example.

The Obama Administration, which promised "open government", insists the Patriot Act is essential.

"Although the Patriot Act is not a perfect law, it provides our intelligence and law enforcement communities with crucial tools to keep America safe," said Senate majority leader Harry Reid in May.

But claims last month by Senators Ron Wyden and Mark Udall, Democrats who sit on the Senate Intelligence Committee, that the Justice Department has a "secret interpretation" of the Patriot Act, allowing officials to advise anyone seeking a document under the Freedom of Information Act that they can neither confirm nor deny its existence, sparked outrage.

This week, the Los Angeles Times demanded the Government "rethink its outrageous proposal that would allow the Government to lie to citizens about whether documents exist", citing a notorious case from last year involving FBI surveillance of Muslims in California, when agents misled a court by denying documents existed.

Last month, the ACLU and the Electronic Frontier Foundation filed two lawsuits against the Justice Department, seeking clarification over the Patriot Act's Section 215.

The suits were triggered by Wyden and Udall's claim the Government's "secret interpretation" of Section 215 justifies a "sensitive collection programme" that may target large numbers of Americans as agents seek "tangible things", which includes internet browsing, medical records and even library book loans.

"It's a bid to understand a particular section of the Patriot Act a bit more," said Alexander Abdo, staff attorney with the ACLU's National Security Project. "But the concerns are much broader."

The act waives official accountability and hides embarrassment - a slippery slope.

The ACLU and EFF suits will probably be a long, hard fight. For there is a Kafkaesque quality to any legal challenge to the Government's national security mantra.

"The important question is whether these are true emergency powers that will last only as long as necessary, or if we are codifying a surveillance state," said Abdo.