"If you're not doing anything wrong, you have nothing to worry about."
Many Americans have said this, or heard it, when discussing the expanded surveillance capabilities the government has claimed since 9/11. But, it turns out you should be concerned. Just ask peace activists in Pittsburgh, anti-death penalty activists in Maryland, Ron Paul supporters in Missouri, an anarchist in Texas, groups on both sides of the abortion debate in Wisconsin, Muslim-Americans and many others who pose no threat to their communities.
Some of them were labeled as terrorists in state and federal databases or placed on terror watch-lists, impeding their travel, misleading investigators and putting these innocent Americans at risk.
The Fourth Amendment requirement that you must be suspected of wrongdoing before the government searches your private records risks becoming a quaint notion. Congress weakened the laws designed to protect our privacy, while the executive branch secretly re-interprets or simply ignores the law with no consequence.
While your privacy is being sacrificed, there's little evidence the new spying programs are catching terrorists.
The question should be, "If you're not doing anything wrong, why is the government snooping on you?"
After 9/11, Congress hastily passed the Patriot Act, the first of many changes to surveillance laws making it easier for the government to spy on you without having any evidence, or even suspicion you've done something wrong, often with no meaningful judicial oversight.
These loosened surveillance laws provide access to a growing trove of electronic information about your everyday life: who you talk to or e-mail, where you shop, your credit rating, the websites you visit, where you bank, what you read and more; without having to show a judge any evidence you've done anything wrong.
With a National Security Letter, the FBI can go directly to a bank or internet service provider and compel them to turn over records on people who are not even suspected of having terrorist ties. Audits of the FBI's use of this tool discovered that 40-50,000 of these letters are issued every year.
If the government wants to make a really deep grab for information, it can go to a secret intelligence court and obtain an order for 'any tangible thing' or a year-long directive for bulk collection of your communications coming into and out of United States.
The FBI has also claimed new powers to investigate you using "assessments," which allow unlimited physical surveillance, using informants, and conducting interviews of neighbors or co-workers, all without having any indication you are engaged in illegal activity or pose a national security threat.
The FBI opened more than 82,000 of these assessments from March 2009 to March 2011, only 3,315 of which discovered any information to justify starting an investigation. But the FBI keeps all of the personal information gathered in the 79,000 cases that found no wrongdoing, essentially forever.
These are the programs we know about. Secret government surveillance programs, like the National Security Agency's illegal warrantless wiretapping program, rely on secret re-interpretations of the law to justify ignoring the law.
Senator Ron Wyden, a member of the Senate Intelligence Committee, believes most Americans would be shocked to know how broadly the government interprets the Patriot Act. He recently said there is a, "gap between what the public thinks the law says and what the American government secretly thinks the law says."
There is little evidence these spying programs have thwarted attacks. Inspectors general of key security agencies who reviewed the NSA warrantless wiretapping program found no hard evidence the program made us safer, despite its unprecedented scope. Similarly, though the FBI made close to 150,000 National Security Letter requests from 2003 to 2005, the Department of Justice Inspector General documented only one conviction in a terrorism case using the data during that period, and found no instance in which they helped prevent an actual terrorist plot.
Investigating innocent people doesn't help find guilty people. Spying on innocents makes us less safe by diverting security resources from investigations with actual suspicion of wrongdoing.
But rather than learn from these results, the government demands more authority. Last year, it asked to get sensitive records about people's internet use without warrants, and this year, it is proposing a broad new cyber-security scheme allowing communication providers to routinely turn over our private information to the Department of Homeland Security.
With so many well-documented cases of abuse, it's long past time for Congress to narrow these surveillance authorities and hold the intelligence agencies publicly accountable.
ABOUT THE WRITER
Michelle Richardson is a legislative counsel with the American Civil Liberties Union Washington Legislative Office, focusing on national security issues such as the Patriot Act, warrantless surveillance and state secrets. She can be reached by email at media@dcaclu.org.
McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.
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