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In these post-constitutional days it’s not just the government that is out to violate your rights. Count on Corporate America to be a co-conspirator.
In one-two knock-out punch to the Fourth Amendment, officials within the Obama Administration have secretly authorized major telecom firms to intercept communications carried on portions of their networks, C/NET reports, noting that the practice, under federal wiretapping laws, would otherwise be illegal. Carriers include AT&T and other major ISPs – Internet service providers.
The secret legal authorization from the Justice Department originally applied to a cybersecurity pilot project in which the military monitored defense contractors’ Internet links. Since then, however, the program has been expanded by President Obama to cover all critical infrastructure sectors including energy, healthcare, and finance starting June 12.
(Question: Before entering politics, wasn’t President Obama some sort of constitutional professor? I’m just asking because that seems relevant here – and because no one in the Praetorian Washington Press Corps is going to. And what copy of the Bill of Rights is Attorney General Eric Holder using?)
‘Alarm bells should be going off’
The justification for this blatant privacy violation, of course, is the same that it always is: It’s for our own safety. But that excuse is just a smokescreen, as Marc Rotenberg, executive director of the Electronic Privacy Information Center, observes.
“The Justice Department is helping private companies evade federal wiretap laws,” he said. Rotenberg’s organization obtained over 1,000 pages of internal government documents and provided them to C/NET.
“Alarm bells should be going off,” he told the online magazine.
According to the report, the documents showed that the National Security Agency (NSA), which is located on the grounds of Ft. Meade, Md., and the Defense Department were heavily involved in lobbying for the secret legal authorization. NSA Director Keith Alexander actually participated in some of the discussions personally.
“Despite initial reservations, including from industry participants, Justice Department attorneys eventually signed off on the project,” C/NET said, indicating that Justice officials knew good and well what NSA and DoD was requesting was unconstitutional – that is, before they decided to play along.
As part of the agreement, the Justice Department said it will grant legal immunity to any participating network providers, backed up with what participants in the confidential discussions said were “2511 letters,” in reference to the Wiretap Act codified at 18 USC 2511 in federal statutes.
“The Wiretap Act,” C/NET reported, “limits the ability of Internet providers to eavesdrop on network traffic except when monitoring is a ‘necessary incident’ to providing the service or it takes place with a user’s ‘lawful consent.'”
No help from Congress
One industry rep told the online magazine that the 2511 letters give ISPs legal immunity – stay-out-of-jail cards, if you will – and a promise from the Justice Department not to prosecute them for any criminal violations of the Wiretap Act. C/NET said it wasn’t clear how many of the 2511s were issued.
Deputy Secretary of Defense William Lynn, in 2011, publicly disclosed some details of the original project, called the DIB Cyber Pilot. In May 2012, the project was transformed into an ongoing program, which was much broader but still voluntary. It was then the Department of Homeland Security became involved in it for the first time. Renamed the Enhanced Cybersecurity Services program in January, it is currently being expanded once again, this time to all tech and information firms that operate “critical” infrastructure.
If you’re wondering why Congress isn’t outraged and taking action, you should know that this is likely being done with tacit congressional approval. Both the House and Senate intelligence committees, in their oversight role, have almost certainly been briefed about this little Fourth Amendment violation, so don’t expect any help from the Legislative Branch – though clearly Congress has a role, as well as a duty to act. Last month the non-partisan Congressional Research Service published a report concluding the Executive Branch most likely does not have the authority to circumvent the Privacy Act unless Congress changes the law.
I wouldn’t hold my breath if I were you.