Inside the fight for American privacy
By Seth J. Frantzman, February 26, 2012 in The Jerusalem Post Magazine
At the American Civil Liberties Union, one of the people on the front lines of the campaign for the right to privacy has been its executive director in Maine, Shenna Bellows. This issue of privacy, both in the US and abroad, has taken on particular importance in light of revelations about US National Security Agency spying and surveillance programs that have collected data on millions of foreign Americans.
Bellows has been part of the organization for eight years and recently led campaigns to require warrants for access to private cellphone communications, and to clamp down on warrantless drone surveillance. In September she launched a campaign for the US Senate, with privacy being a cornerstone of her platform.
She recently spoke to the Magazine about her efforts.
Can you tell us a little about your background? I am a carpenter’s daughter who grew up in Hancock, Maine, without electricity or running water. I attended Middlebury College and studied international politics and economics, and afterward I went to work in economics and did consulting in Washington. I served in the Peace Corps in Panama, working with rural artisans, and served in Americorps in Nashville in the largest public housing project there.
It was the events of 9/11 that transformed civil liberties in the US. Shortly after that, the US Congress hastily passed the Patriot Act. This gave the government vast new powers to intrude in people’s private lives, like sneak-and-peek searches, which meant secret searches of property without notification… I was interested and concerned and went to work in the ACLU, a nonprofit organization devoted to defending the US Constitution and Bill of Rights. In that capacity, I organized resolutions in cities, towns and states, voicing opposition to the act and [demanding] that we restore traditional constitution constraints. I was based in Washington at the time.
Many people are under the impression that the Patriot Act was repealed or rolled back in recent years under President Barack Obama. Isn’t that the case? Congress put in place a sunset clause [meaning the law would cease after a specified date unless further legislation extended it], but Congress has voted to renew and expand the government powers to spy on ordinary Americans – emails, Internet, bank reporting… unfortunately even under Obama, we have not seen adequate checks and balances to protect our constitutional freedoms. Congress has failed to put in place amendments to protect citizen privacy.
That is how we come to the crisis of NSA spying. The NSA has interpreted the act to say they can vacuum up any communications; this is called bulk data collection, and they collect hundreds of millions of email address books, billions of cellphone locations, billions of domestic call logs, etc.
But they don’t actually listen to the calls or read the individual emails? The reason this is concerning is that this creates a virtual network of people’s private lives: Where you are located, with whom you are located… [whistle-blower Edward] Snowden revealed that the NSA using this power has placed millions of people under this surveillance, which allows them to understand deeply many things about people’s private lives.
Doesn’t the government have a right to follow you around? For instance, a policeman can follow you, so isn’t this just an extension of that power? The premise is that freedom of thought and movement is fundamental to a free society. People behave differently when under surveillance. That is actually the model of prison architecture.
When people are under surveillance, there is a danger of self-censorship and censorship. The NSA can know everything about who we talk to, where we are, and their paradigm is that this means they can keep us safe. But this tramples on the Bill of Rights. When you look for people who can do us real harm, [but then] make the haystack so big and vacuum up so much, it makes enforcement of anti-terrorism less efficient and effective. This is why President Obama created this review board [in August 2013 to review NSA use of technology for surveillance]. In December 2013, [the board] released striking recommendations [and noted that it had been] unable to find a single example where the NSA program provided crucial evidence to prevent terrorism. The government is wasting taxpayers’ dollars on spying on ordinary Americans, instead of focusing on the real threats.
Before Snowden, how much was known by people like yourself? The ACLU filed two lawsuits against the surveillance programs, but the US Supreme Court said you can’t prove that this is being done, because [it’s] being done in secret, so since you can’t prove you are being targeted, you don’t have standing.
The Snowden revelations demonstrated that journalists, businesspeople and ordinary Americans were subject to surveillance, and that we could demonstrate through the revelations that this was doing real harm. US companies are even losing money, and tech companies are speaking up as well. Recently, in mid-December, a district court judge [Richard J. Leon of the Federal District Court for the District of Columbia] said that the mass call tracking violates the Constitution.
Another district court judge [William H. Pauley III in the Southern District of New York, on December 27] said that this was constitutional. It is certain [the Supreme Court] will weigh in soon; the fundamental question is whether we have a right to privacy in our telephone and email communications.
One of the reasons I’m running for US Senate is that the values of the Bill of Rights unite us, and those values are worth defending; we don’t have to sacrifice our liberties so we can be safe and free. I want to restore our constitutional freedoms. We want to repeal the Patriot Act. There is legislation now in Congress called the Freedom Act [introduced in October by Sen. Patrick Leahy (D-Vermont) and Rep. Jim Sensenbrenner (R-Wisconsin) that would end these programs. It would require that the government, before it obtains business records…obtain a warrant. These can be credit, medical, financial records, which under [the power that the Patriot Act grants agents to issue] a national security letter [are] not subject to a warrant. We think that power of a government entity to obtain broad records without going to a judge first is a problem.
Can you tell us a little about FISA courts, secret courts that can demand information or give the government power to invade privacy? The full name is Foreign Intelligence Surveillance Courts. These are secret courts designed to deal with issues of foreign intelligence. Their rulings are secret, and only the government appears before the court. The other entity making a counterargument is not present [unlike in a regular court, where both sides are represented]. These date back to 1978. What is new under the Patriot Act is the blurring of the lines between foreign intelligence and intelligence-gathering on American soil regarding Americans.
If we’re talking about as far back as 1978, the NSA was always secret. Hasn’t this been going on for a long time? I mean, there have always been rumors about the extent of NSA information- gathering.
Snowden reveals that under a program called Prism, they were obtaining information from Google, Microsoft and Apple, etc. Also, they had broken into fiber-optic [communication cable] links of Google and Yahoo. This level of technology is advanced, and these programs are far more intrusive than they were a decade ago. The law has not kept pace with the technology. Instead, the Patriot Act was used to authorize these programs. These tech companies have sort of given in to government demands in all this? For several years, these companies, such as [cellphone providers] AT&T and Verizon, were complicit with these programs. They didn’t present a unified front, or call on the president.
In December, tech companies announced their concerns about privacy and a new initiative to seek checks and balances; they are becoming concerned about the bottom line and their competitiveness internationally after these revelations.
So there might be pushback on this? Perhaps the tide is turning on NSA surveillance; American concern on the nature and extent of surveillance has peaked. Leaders of tech companies have announced that the NSA program is damaging them economically, and the tech companies and nonprofits like the ACLU are joining together to call for real reform.
Some in Congress are beginning to realize this. I think 2014 is going to be a turning point. Congress hasn’t done much up until now? Congress has been unwilling to make significant improvements to our laws. Democrats and Republicans have defended these laws. That is why I am running for Senate.
In the wake of revelations about the NSA spying on Israeli leaders, some people in Israel and the US have said this is yet another reason for freeing convicted Israeli agent Jonathan Pollard. Do you think that is a valid point of view? I don’t have enough information on his case to evaluate the connection to NSA spying, but I’ll continue to monitor the developments with [Secretary of State] John Kerry and the White House with interest.