Secret State vs. the Bill of Rights: House Passes Draconian Internet Spying Bill


On Thursday, the U.S. House of Representatives passed the draconian Cyber Intelligence Sharing and Protection Act (H.R. 3523 or CISPA) by a vote of 248-168, with 206 Republicans and 42 Democrats voting in favor.

If
the legislation passes muster in the Senate and is signed by President
Obama (who has threatened a veto, but don't hold your breath), it would
allow private firms--internet service providers (ISPs), telecoms and
wireless providers--to hand over personal information about users to law
enforcement and security agencies.

This unprecedented power-grab
by a cabal of giant corporations and the federal government would take
place under the guise of "cybersecurity," the latest front in the secret
state's assault on Americans' civil liberties and privacy rights.

While
the bill's sponsors and supporters claim that any "information-sharing"
of personal data would be "voluntary," it would occur without benefit
of a warrant or a court order and automatically "exempts such
information from public disclosure."

Denouncing the bill, the ACLU's
Michelle Richardson said that CISPA's "biggest and most fundamental
flaw" is that it empowers "the military, including agencies like the
NSA, to collect the internet records of Americans' everyday internet
use."

CISPA is the latest in a series of repressive measures that
have incrementally rolled-back the Bill of Rights since 1995's Oklahoma
City bombing and the 9/11 terrorist provocations. Under successive
Democratic and Republican administrations fundamental constitutional
protections, specifically those guaranteed by the First, Fourth and
Fifth Amendments, have been gutted.

Beginning with the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
which severely limited the rights of prisoners to obtain habeas corpus
relief from federal courts, 2001's Authorization for Use of Military
Force (AUMF)
which handed the Executive Branch carte blanche to wage endless,
undeclared wars, and now the National Defense Authorization Act of 2012 (NDAA),
which empowers the President to order the military to pick up and
indefinitely imprison anyone, anywhere in the world declared a
"terrorist," including American citizens detained on U.S. soil, without
charge or trial, the architecture of a police state is firmly in place.

"In the past decade," the Electronic Frontier Foundation's (EFF)
Trevor Timm averred, "the amorphous phrase 'national security' has
invaded many arenas of government action, and has been used to justify
much activity that did not involve legitimate terrorist threats. The
most obvious (and odious) example is the unfortunately named USA-PATRIOT
Act, a law that was sold to the American public as essential to
combating terrorism, but which has overwhelmingly been applied to
ordinary American citizens never even suspected of terrorism."

Citing
the example of the FBI, Timm pointed out that under the rubric of
"stopping terrorism" the Bureau "issued more than 192,000 National
Security Letters to get Americans' business, phone or Internet records
without a warrant. These invasive letters--which come with a gag order
on the recipient so they can't even admit they received one--have been
used to gather information about untold number of ordinary citizens,
including journalists."

Indeed, "'Information sharing'--CISPA's
mantra--has also created privacy nightmares for everyday Americans in
the name of national security. The federal government routinely shares
its massive national security databases with local law enforcement
agencies with predictable results."

Amongst CISPA's controversial provisions, the Director of National Intelligence (DNI), the Obergruppenführer
of America's 16-agency Intelligence Community, "shall issue guidelines
providing that the head of an element of the intelligence community may,
as the head of such element considers necessary to carry out this
subsection: (A) grant a security clearance on a temporary or permanent
basis to an employee or officer of a certified entity; (B) grant a
security clearance on a temporary or permanent basis to a certified
entity and approval to use appropriate facilities; and (C) expedite the
security clearance process for a person or entity as the head of such
element considers necessary, consistent with the need to protect the
national security of the United States."

Under "Definitions," (1)
a "certified entity" is described as a "protected entity,
self-protected entity, or cybersecurity provider that--(A) possesses or
is eligible to obtain a security clearance, as determined by the
Director of National Intelligence; and (B) is able to demonstrate to the
Director of National Intelligence that such provider or such entity can
appropriately protect classified cyber threat intelligence."

"(2)
The term 'cyber threat information' means information directly
pertaining to a vulnerability of, or threat to, a system or network of a
government or private entity, including information pertaining to the
protection of a system or network from--(A) efforts to degrade, disrupt,
or destroy such system or network; or (B) theft or misappropriation of
private or government information, intellectual property, or personally
identifiable information. (3) Cyber threat intelligence.--The term
'cyber threat intelligence' means information in the possession of an
element of the intelligence community directly pertaining to a
vulnerability of, or threat to, a system or network of a government or
private entity, including information pertaining to the protection of a
system or network from--(A) efforts to degrade, disrupt, or destroy such
system or network; or (B) theft or misappropriation of private or
government information, intellectual property, or personally
identifiable information."

According to this reading, a
"certified entity" is any one of the thousands of über-secretive
"cybersecurity firms" with their stable of "cleared" employees who hold
top secret and above security clearances who rely upon and do the
bidding of their masters--corporate shareholders and the federal
government.

The bill's draconian language would in essence
transform investigative journalism and whistleblowing into a crime since
"the theft or misappropriation of private or government information,
intellectual property, or personally identifiable information" is precisely the meat and potatoes used by journalists and outraged citizens to uncover corporate and government lawbreaking.

Indeed under CISPA, the employees of firms such as the ultra-spooky Endgame Systems, SAIC, Lockheed Martin or General Dynamics, the designers of "boutique cyber weapons" for the government as BusinessWeek
disclosed last summer, would ply their dirty trade in destructive
algorithmic weapons with more than a wink-and-a-nod: they would be
empowered to do so and earn big bucks (courtesy of U.S. taxpayers) in
the process!

To get a sense of some of the surveillance
"products" which have transformed private data into weaponized kit for
the secret state, readers are well-advised to peruse The Spyfiles published last December by the whistleblowing web site WikiLeaks.

"In
the last ten years," WikiLeaks informed us, "systems for
indiscriminate, mass surveillance have become the norm. Intelligence
companies such as VASTech secretly sell equipment to permanently record
the phone calls of entire nations. Others record the location of every
mobile phone in a city, down to 50 meters. Systems to infect every
Facebook user, or smart-phone owner of an entire population group are on
the intelligence market."

To cite but one example culled from The Spyfiles, NICE Systems,
founded by "retired" members of Israel's equivalent of the National
Security Agency, Unit 8200, has become a key player in the global
Surveillance-Industrial Complex.

With decades of experience surveilling, tracking and repressing Palestinian and left-wing activists at home and abroad, the NiceTrack Mass Detection Center
is a perfect tool that provides "nationwide interception, monitoring
and analysis" to enterprising securocrats who need a leg-up on
home-grown "subversive elements."

Accordingly, the Mass Detection
Center "helps intelligence organizations and national security agencies
fight terrorism and reduce national threat levels. It supports both
mass and target monitoring workflows and helps operators and analysts
find new suspects, generate new leads and monitor existing targets."
Indeed, the software suite "stores and analyzes all types of telephony
and Internet content." We're informed that "collecting and storing
nationwide data enables broadening the scope of target information and
performing on-going and post-event investigations."

NiceTrack Target 360° according to brochures published by WikiLeaks
"is the leading communication intercept system for tracking,
monitoring, and investigating targets' activities, securing 1.5 billion
people worldwide." Indeed, "the system is designed to provide Law
Enforcement Agencies (LEAs), intelligence organizations and SIGINT
agencies with hermetic 360° target monitoring by collecting, processing,
retaining and analyzing any type of communication activity."

Amongst
the product's "Key Benefits" we learn that Target 360° can "help" law
enforcement "reduce crime, prevent terrorism" and "identify other
security threats" by providing "persistent situation awareness" of a
"target" through "advanced IP monitoring," "open source intelligence"
and "lawful hacking."

Additionally, Target 360° can "manage and
efficiently structure millions of internet activities and unstructured
data into a simple and meaningful intelligence picture." Target 360° "is
designed to handle all types of Web 2.0 internet applications,
including Facebook, Twitter and other social networks, forums, chats,
and e-mails, and is scalable to support new services" and can "be
integrated with legacy systems for telephony and mobile interception and
provide a comprehensive solution for all types of communication
interception."

As numerous critics and journalists have pointed
out, the privatization of the government's intelligence and security
functions, theoretically transparent under provisions of the Freedom of
Information Act (FOIA), would, under CISPA, fall under the purview of
the Department of Homeland Security (DHS) and the National Security
Agency (NSA) where "disclosure" is little more than a euphemism for
"down the memory hole."

In all likelihood, privatized spooks
would be exempt from revealing the state's blanket surveillance of its
citizens under any number of provisions built into the Freedom of Information Act.

For
example under section (b)(1), the secret state can prevent "disclosure
[of] national security information concerning the national defense or
foreign policy, provided that it has been properly classified in
accordance with the substantive and procedural requirements of an
executive order."

Can you say "state secrets privilege," Sibel Edmonds or Thomas Drake?

Since,
an "an employee or officer of a certified entity," i.e., a private
contractor, telecom or ISP will be empowered by Congress to share user
information with NSA and other departments of the federal government,
such information "shall be considered proprietary information and shall
not be disclosed to an entity outside of the Federal Government except
as authorized by the entity sharing such information."

Under
CISPA it will be virtually impossible for the average citizen to learn
whether they have been spied upon since Section (b)(4) of FOIA
specifically protects "trade secrets and commercial or financial
information obtained from a person [that is] privileged or confidential.
This exemption is intended to protect the interest of both the
government and submitter of information."

And once an "employee
or officer of a certified entity" has been "read into" a CIA, FBI, DHS
or NSA black program, they are automatically exempt from disclosing such
information to a lawful court since CISPA "prohibits a civil or
criminal cause of action against a protected entity, a self-protected
entity (an entity that provides goods or services for cybersecurity
purposes to itself), or a cybersecurity provider acting in good faith
under the above circumstances."

With CISPA, official lawbreaking
is automatically precluded from review by a lawful court and the average
citizen, who may have lost their job because of malicious or flawed
data collected by a "certified entity" will be stripped of their ability
to obtain compensation from deputized cyber snoops "acting in good
faith."

Most controversially perhaps, the statute reads:
"notwithstanding any other provision of law," companies can share
information "with any other entity, including the federal government."

As CNET News
analyst Declan McCullagh pointed out, "By including the word
'notwithstanding,' House Intelligence Committee Chairman Mike Rogers
(R-Mich.) and ranking member Dutch Ruppersberger (D-Md.) intended to
make CISPA trump all existing federal and state civil and criminal
laws."

Indeed, by inserting the word "notwithstanding" into the
legislation, it "would trump wiretap laws, Web companies' privacy
policies, gun laws, educational record laws, census data, medical
records, and other statutes that protect information," McCullagh wrote.

As
noted above, "CISPA's authorization for information sharing extends far
beyond Web companies and social networks. It would also apply to
Internet service providers, including ones that already have an intimate
relationship with Washington officialdom," CNET reported.

"Large
companies including AT&T and Verizon handed billions of customer
records to the NSA; only Qwest refused to participate," McCullagh
reminded us. "Verizon turned over customer data to the FBI without court
orders. An AT&T whistleblower accused the company of illegally
opening its network to the NSA, a practice that the U.S. Congress
retroactively made legal in 2008."

What's to prevent firms such
as Google, Facebook or Twitter from turning over our private data to the
government, after all, they have their customers' best interests at
heart as part of their business model, right? Better think again!

The New York Times
reported Sunday that that "Google's harvesting of e-mails, passwords
and other sensitive personal information from unsuspecting households in
the United States and around the world was neither a mistake nor the
work of a rogue engineer, as the company long maintained, but a program
that supervisors knew about, according to new details from the full text
of a regulatory report."

That report, prepared by the Federal
Communications Commission "draws a portrait of a company where an
engineer can easily embark on a project to gather personal e-mails and
Web searches of potentially hundreds of millions of people as part of
his or her unscheduled work time, and where privacy concerns are
shrugged off."

"As early as 2007," the Times
disclosed, "Street View engineers had 'wide access' to the plan to
collect payload data. Five engineers tested the Street View code, a
sixth reviewed it line by line, and a seventh also worked on it, the
report says."

"Google's rogue engineer scenario collapses in
light of the fact that others were aware of the project and did not
object," Marc Rotenberg, the executive director of the Electronic
Privacy Information Center told the Times. "This is what happens in the absence of enforcement and the absence of regulation."

Such
practices will be infinitely worse under CISPA. Google's harvesting of
their customers' private data or Facebook's routine cooperation with law
enforcement "requests" for users' information could in fact be turned
over whenever an intelligence agency declares that doing so is in the
interest of national- or cybersecurity and we would have no way of ever
learning about it since harvested emails, web searches and stored
profiles could be deemed "proprietary information."

With a
ginned-up panic over "cybersecurity" taking its place alongside
imperialism's other "wars" on "terror," "drugs" and "crime," the secret
state's "unprecedented attacks on democratic rights, in which the entire
political establishment and both Democrats and Republicans are
participating," as the World Socialist Web Site
warned, "must be understood as preemptive preparations by the political
establishment to meet the coming social upheavals with police state
measures."

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