Data-mining soars even as 9/11 fades

Law, awareness lag behind technological advances

by Craig Timberg

The Washington Post

Expanded surveillance by the U.S. government was cast as a price of war in the aftermath of the Sept. 11, 2001, terrorist attacks. Yet nearly a dozen years later, the war on terrorism is showing signs of ebbing while the surveillance systems crafted to fight it continue unabated.

If anything, they are becoming more powerful.

That is because the United States went to a war footing at a time of profound technological change that fueled an explosion of personal data. Governments and businesses worldwide have developed the ability to mine, sort and analyze this information as never before — and they show little inclination to relinquish that power.

Few adults can navigate the modern world without leaving behind massive trails of data: where we go, where we live, how we look, what we buy, what we eat, what websites we visit and — perhaps most powerfully for those seeking to monitor us — who forms our network of personal relationships.

From a legal perspective, this information is considered fair game in the wired world, given freely with every email sent, every photo posted to Facebook, every bag of groceries bought with a credit card. Yet few people knew that much of this information could be vacuumed up by the National Security Agency (NSA) in partnership with many of the most prominent U.S. technology companies, for possible use in broadly defined terrorism investigations.

“What the government can do is certainly much greater than before 9/11,” said Daniel Solove, author of “Nothing to Hide” and a George Washington University law professor. “The Obama administration by and large has not done anything to dial it back. If anything, maybe they’ve dialed it forward.”

Documents showed that information gathered through PRISM, the secret NSA program, is a major source of intelligence information delivered to the president in his daily briefings. Yet details of PRISM, revealed in reports by The Washington Post and Britain’s The Guardian citing government documents, startled even some veteran civil libertarians who had long warned about growing government surveillance powers but had not expected them to be so vast.

“The fact that there would be so much data collected on U.S. persons has got to be mind-blowing. The sense we have now is that the system of checks and balances has simply collapsed,” said Marc Rotenberg, president of the Electronic Privacy Information Center.

Snooping is as old as communication itself. With each technological advance, authorities have pressed for surreptitious access. That was straightforward in the days when police could tap directly into telephone wires but grew increasingly complex with the arrival of email, cellphones and encrypted voice and video services such as Skype.

The legal guidelines for government interception of communications have evolved more slowly, with many crucial laws and precedents dating to the days when rotary phones were still common. Especially crucial was a 1976 Supreme Court decision establishing the “third-party doctrine” — meaning that anyone turning over information to a third party, such as a bank or Internet service provider, has no right to object if that information is later shared with the government.

That is the legal key that has unlocked the government’s access to massive amounts of personal information, allowing it to tap into the servers of Google, Microsoft, Facebook, Apple, AOL and four other technology companies, according to an NSA presentation obtained by The Washington Post. Several of the companies denied that the NSA had any direct access to their servers.

Government officials pushed for more access to data in the aftermath of the Sept. 11 attacks — over the objections of civil libertarians who argued that security concerns should be more evenly balanced with personal freedoms, even at a time of war.

There has been some backlash to government overreach, as there was amid revelations about the George W. Bush administration’s warrantless wiretapping and the Pentagon’s Total Information Awareness program, which sought to monitor terrorist activity but was criticized as an unnecessarily intrusive surveillance effort. The same criticism was leveled last week at the NSA surveillance program.

Although approved by a secret Foreign Intelligence Surveillance Court, some legal experts said the effort could have violated the law and perhaps the constitution’s prohibition on unreasonable searches and seizures. Written at a time when memories were fresh of the British barging into the private homes of colonists and seizing whatever they wanted, the Fourth Amendment requires probable cause and specific investigatory targets.

“You’ve completely undermined the purpose of the Fourth Amendment,” said Laura Donohue, a Georgetown law professor.

Yet since the 9/11 attacks, the government has won most of its political battles over powers it says are necessary to fight terrorism, and the widening legal authorities came as computing power surged: Social media services such as Facebook became wildly popular and many Americans began using smartphones, capable of emitting a constant stream of information about their owners.

Companies and government agencies, meanwhile, increasingly moved information to remote cloud servers, maintained in many cases by the same firms that documents showed were working with the NSA to gather information.

So far, there has often been public resignation to eroding privacy, as even some advocates concede. Outrage over changes to Facebook privacy settings or to Google’s scooping up of user data through its Street View program has generally subsided not long after the initial publicity.

Wall Street is betting there will be little price to pay for participating in the NSA program. On Friday, the first day after the news broke, not one of the technology companies involved saw its stock price drop.

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