Nov 12, 2007 11:30 AM

Spy Official Calling Anonymity Dead Simply Summarizing Gov Spying Powers

Donald Kerr, the second in command at the Director of National Intelligence office, gave a public speech in October saying that anonymity is gone and that privacy is best understood as what rules and oversight restrict what the government can do with information about you, as the AP reported this weekend. Essentially, he’s arguing that […]

Essentially, he's arguing that if you are willing to go online - thus sharing some information with at least your ISP, you should be fine with the intelligence community watching what you do, because the government has privacy boards and ISPs do not.

The AP story on that statement (.pdf) has created a media stir, given that Kerr is the number two official in the intelligence community-- which is supposed to spy on foreigners, not Americans. But this is a post-9/11 spy bureaucracy that willingly targeted Americans for surveillance without getting court approval as the law requires.

It's also a pretty clear statement of how the administration and the heads of the intelligence community think government surveillance of Americans should work.

[I]n our interconnected and wireless world, anonymity – or the appearance of anonymity – is quickly becoming a thing of the past.
Anonymity results from a lack of identifying features. Nowadays, when so much correlated data is collected and available – and I'm just talking about profiles on MySpace, Facebook, YouTube here – the set of identifiable features has grown beyond where most of us can comprehend. We need to move beyond the construct that equates anonymity with privacy and focus more on how we can protect essential privacy in this interconnected environment.
Protecting anonymity isn't a fight that can be won. Anyone that's typed in their name on Google understands that. Instead, privacy, I would offer, is a system of laws, rules, and customs with an infrastructure of Inspectors General, oversight committees, and privacy boards on which our intelligence community commitment is based and measured.

When Congress passed the so-called Protect America Act this summer, it gave the government the power to order all ISPs, email providers, VOIP phone companies and instant messaging services to turn over all communications that involve at least one person thought to be outside the United States to the government.

The intelligence community also seems to think that it can look at Americans' phone records and the To and From lines in emails to mine for terrorists, without implicating privacy rights.

In the Q&A after his Oct 23, 2007 speech at the GOE-INT Symposium, Kerr questions why it is that individuals are okay with having their emails handled by an ISP - with the threat of an insider looking at the e-mails, with having the federal government - with strong privacy rules

I was taken by a thing that happened to me at the FBI, where I also had electronic surveillance as part of my responsibility. And people were very concerned that the ability to intercept emails was coming into play. And they were saying, well, we just can’t have federal employees able to touch our message traffic. And the fact that, for that federal employee, it was a felony to misuse the data – it was punishable by five years in jail and a $100,000 fine, which I don’t believe has ever happened – but they were perfectly willing for a green-card holder at an ISP who may or may have not have been an illegal entrant to the United States to handle their data. It struck me as an anomalous situation.

Hmm. Suppose there was a rogue employee at your ISP who got access to your internet traffic. The worst case scenario I can think of for most people is that that person might try to blackmail you. As for stealing your credit card, its far more likely this would happen at a restaurant or a retail store.

What can't your ISP do that an intelligence service can?

* Arrange to have you sent to a country like Syria to have you tortured like the government did to Maher Arar. Though the Canadians have since apologized and paid him $10 million for being tortured for almost a year, the U.S. government hides its culpability using the "state secrets privilege"

* Put you on a government watch list

* Find a tenuous connection between you and suspected bad guys in order to justify further surveillance

* Find a way to nail you for material support to terrorism

* Build secret files on Americans' First Amendment-protected political activities

* Use those files to round up dissidents in the event of an "emergency"

In other words, this Administration - of which Kerr is only a small player - believes that the nation's spooks microphones and data-mining robots should be inserted deep into the nation's telephone and internet infrastructure. They don't want court oversight, they don't want Congress asking questions, they don't want inspectors general crawling through their program logs. They think that they should have this power because they promise not to abuse it and there are laws prohibiting some of the things on that list.

They believe that they, unlike the Nixon Administration, won't be tempted to create an domestic enemies list. That they won't start adding groups like Food, Not Bombs and Quakers to terror data bases (only the Pentagon could be so stupid). That they won't make mistakes and transpose phone digits when doing phone surveillance (only the FBI could be so careless.) That they won't confuse Tuttle for Buttle, or Senator Ted Stevens' wife Catherine for notorious terrorist Cat Stevens.

I'm not saying that the Administration is creating an enemies list. Or that they are using their extraordinary surveillance powers for anything other than good-faith anti-terrorism work.

But they have been given the power to build an extraordinary surveillance architecture -- one that any dictator would love to have at his disposal. And they want -- and Congress looks to be set -- to make it permanent in the coming months.

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