They’re Watching (Part 1)

Most of the point-of-view characters in South are either under surveillance or doing the surveillance. How does surveillance in 2032 differ from what we have now in 2012?

The sad and scary answer: not much. Most of the legal and technological plumbing is already in place and already being used. The few extra laws in place in South’s version of 2032 have already been proposed in the U.S. and exist today in other countries. In a way, this makes things easier on me; I don’t have to make up much, and short of a major Watergate-style scandal, things won’t get any less pervasive or unaccountable.

This series of posts isn’t meant to be a treatise on all the different forms of surveillance available or the legal framework for them. That subject is being tackled in a stream of non-fiction books and magazine articles. Instead, it’s an overview of the environment my characters live in, as much for my benefit as yours, as I think I’m being too easy on them now. Part 1 (today) is about the legal foundations; Part 2 will discuss the technological capabilities; and Part 3 will outline some of the countermeasures (legal and otherwise) the characters have available in 2032.

The cornerstone of the rise of the current surveillance state in the U.S. is the PATRIOT Act, an omnibus act passed in October 2001 that amended ten titles of the U.S. Code. Among the activities authorized by this Act that have survived court review:

  • Surveillance against U.S. citizens under the Foreign Intelligence Surveillance Act (FISA), allowing for criminal search orders using less rigorous evidentiary standards.
  • Wiretaps expanded to include addressing and routing information (thus allowing “tapping” of packet-switched networks).
  • Access to voicemail via search warrant (less stringent requirements for probable cause) vice wiretap warrant, without notice to subjects of surveillance.
  • Operators of “protected computers” (“used in or affecting interstate or foreign commerce or communication,” essentially any server on the Internet) may “voluntarily” allow law enforcement agencies to intercept traffic in and out of those computers, bypassing the wiretap statutes.
  • Law enforcement agencies may require cable companies to disclose information about a subscriber’s stored and ongoing communications.
  • “Roving wiretaps” with national scope that do not have to specify all the devices or phone numbers to be included in the taps. These may be granted by any U.S. district court judge.
  • FBI orders to obtain records from businesses patronized by people under surveillance (the infamous “library clause,” which actually extends to any business, public or private agency), without a requirement to notify subjects of surveillance.
  • Increased duration of surveillance orders without additional judicial review.
  • Changed the basis of many of the warrant and order requests listed here from “probable cause” to “reasonable grounds,” a far less stringent standard. Also, allowed requests for many of these warrants and orders to be issued in camera (in private), ex parte (with no representation for the subjects of the surveillance) and under a gag order (preventing release of the reasons stated for the surveillance.)
  • Allows the use of National Security Letters (demand orders not requiring judicial approval) to force people and organizations to turn over records and information pertaining to subjects of surveillance. NSLs may be issued by an FBI field office Special Agent in Charge.

The Authorization for the Use of Military Force Against Terrorists resolution (2001), passed under the aegis of the War Powers Act, has been used as justification not only for the PATRIOT Act but also for NSA’s warrantless wiretapping programs, despite the fact that AUMF is limited only to those persons and organizations connected to the 9/11 attacks. The legal status of warrantless searches in general is murky. The Supreme Court has yet to rule whether secret warrantless electronic surveillance can be used within the U.S. against U.S. citizens in intelligence or national-security cases. In the meantime, the NSA continues building massive data facilities to trap, store and translate voice and data communications worldwide, including within the U.S.

In case you’re thinking, “Who cares what we do to terrorists?” take a look at the kinds of things that the current 18 USC § 2339(a) considers to be terrorist acts:

  • Carrying unlicensed mace (18 USC § 229)
  • Throwing red paint on the front door of the Burmese Embassy (18 USC § 956)
  • Breaking the window of an Armed Forces recruiting center (18 USC § 2155)
  • Participating in an Amnesty International-sponsored demonstration in which a riot cop caves in a protester’s skull (18 USC § 2332b) (why AI? Based in London)

In 2003, the Domestic Security Enhancement Act began circulating within the Justice Department (DOJ) and senior Bush Administration officials. Otherwise known as PATRIOT II, this proposed legislation included some truly spit-take-inducing provisions. The Act was quietly killed when its existence became public. However, in the 2032 America of South, PATRIOT II has made a comeback. While not all of its original measures were revived, the following were approved by Congress in 2020 (following a 2019 terrorist attack in Chicago):

  • Enhanced DOJ ability to deny releasing material through FOIA regarding suspected terrorists in government custody.
  • Authorized FISA surveillance for U.S. citizens with no ties to foreign individuals or groups.
  • Creation of a DNA database of “suspected terrorists” (no convictions needed).
  • Expanding authorization for use of pen registers and trap-and-trace devices on U.S. citizens without need to show connection to terrorism or national security.
  • Expanded definition of “terrorism” to include offenses that are not defined as terrorism crimes under federal law.
  • Creation of the “domestic security” category of investigations, with (lower) FISA-like evidentiary standards than the existing Title III criminal standards.
  • Sheltering from criminal prosecution federal agents engaged in illegal surveillance without a court order if they are following orders of high Executive Branch officials.
  • Termination of all consent decrees limiting local law enforcement’s surveillance of individuals and groups, and limitation of future court-ordered limitations.
  • Authorizing secret arrests in immigration cases or as material witnesses where the detained person is not criminally charged.
  • Limiting defense attorneys from challenging the use of secret evidence in criminal cases.
  • Authorized sharing sensitive consumer credit information and educational records with state and local officials without any limits and without any connection to a terrorism investigation.
  • Stripping U.S. citizens of their citizenship for association with “terrorist organizations” (thus subjecting them to the even less-stringent limits on surveillance of foreign nationals).

Think judicial review will deal with any abuses? South assumes the current Federal judiciary budget cuts will continue and will lead to crippling shortages of judges, support staff and courtroom space (already a problem in some areas). Federal trials in 2032 take six to seven years to reach a courtroom. In addition, sixteen years of conservative presidents and Congresses have stocked the Federal judiciary with a large number of right-wing judges inclined to defer to the interests of the security state and business. In essence, the Supreme Court of 2032 is the same ideological makeup as the one in place in the first quarter of the 20th Century.

Next: the technologies that make all this happen in 2032.

I’m not a lawyer, nor do I play one on TV. Let me know if I’ve missed anything (probably) or got something wrong. If you can, cite the applicable case law or U.S. Code section so I can look it up. Thanks.

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