In New York City they show up out of the blue, unannounced and unexpected. Dressed all in black, gloved hands clutching menacing assault rifles or short-barreled shotguns, heads covered with storm-trooper helmets, they clamber out onto the crowded streets where stunned New Yorkers look on in awe and fearful silence. “No one sees them coming,” wrote Popular Mechanics contributing editor Brad Reagan in a special story on the NYPD in June 2006. “There are no flashing lights, no sirens. The black suburban simply glides out of Fifth Avenue traffic and pulls into a no-parking zone in front of the Empire State Building.”
This paramilitary show of force is put on periodically by a special group of NYPD officers known as a “Hercules” team. Its abrupt appearance on the streets of the Big Apple is designed, according to the Suburban Emergency Management Project (SEMP) — a clearinghouse for disaster preparedness information — to be “asymmetrical, unpredictable and they deliberately follow no pattern.”
It’s also designed to deliver shock and awe to onlookers and to potential terrorists. When a Hercules team is deployed, a detective from the NYPD’s Intelligence Division monitors its actions remotely via video camera. One of these detectives, Abad Nieves, spoke to Popular Mechanics about the purpose of Hercules team deployments. “The response we usually get is, ‘Holy s***!’” Nieves told Popular Mechanics. “That’s the reaction we want. We are in the business of scaring people — we just want to scare the right people.”
But who wouldn’t be scared by the sudden appearance of heavily armed commandos on what is otherwise a peaceful, civilian street? And being too surprised by the deployments might be just enough to get you into trouble with the NYPD. According to Popular Mechanics’ Brad Reagan, when Nieves is monitoring Hercules team deployments, “he monitors the response of people loitering in the area. Is anyone making notes or videotaping? Does anyone seem especially startled by the out-of-the-blue appearance of a heavily armed NYPD squad?”
Supporters say that deployments of paramilitary squads like the Hercules teams are probably somewhat effective as a deterrent of terrorism. Increased NYPD activity near the Brooklyn Bridge is, for instance, credited with preventing a terrorist attack aimed at destroying that national landmark. In 2002, Pakistani Lyman Faris, an al-Qaeda operative who was also being used as a double agent by the FBI, was supposedly sent by the terrorist organization to reconnoiter the Brooklyn Bridge as part of a plot to destroy the structure. Police presence there allegedly deterred the attack. According to a report in the Telegraph, a British paper, Faris “sent a coded email to al-Qa’eda leaders, telling them: ‘The weather is too hot,’” an apparent reference to NYPD activity.
But even if paramilitary deployments prove somewhat helpful in the fight against terrorism, they come at a substantial cost to privacy and freedom. There is a proper role for police in a free society. They are needed to protect lives and property, to respond in emergencies, and investigate crimes — and the NYPD and America’s other local police departments have long served admirably and honorably in this role. But in a militarized society, one in which the police are no longer accountable to local civil authorities and become instead an instrument of a central government in Washington, the central government could be expected to abuse its newfound law-enforcement powers. And the police, rather than being a representative body of and within society, could be converted into agents of oppression and arbitrary force.
During a transition to a militarized society, government, jealous of its special position and prerogatives, begins to fear the people it was originally intended to protect. Like a frightened animal, it can respond with aggression, and the agency through which that aggression propagates is often the police.
To a substantial degree this illuminates the NYPD’s decision to utilize Hercules teams. The only reason to send an armed brigade into the streets as a random show of force is because all citizens are now suspect and all activities are now suspicious. But paramilitary police teams are only the most aggressive, and therefore noticeable, aspect of the post-9/11 world. Across the country, in ways sometimes subtle and sometimes obvious, government seems increasingly suspicious of its citizens and Americans as a result are coming under an increasing amount of surveillance.
This trend runs counter to American legal tradition and philosophy. In a free society, citizens are innocent until proven guilty. If government, the arbiter of the law, presumes its citizens are innocent, it has no reason to keep them under surveillance. The fact that government now is increasingly surveilling civil society strongly indicates that government no longer trusts the people. In a society in which police task forces are used to intimidate citizens and in which people are placed under constant surveillance, government no longer serves the people, but seeks to be their master. This adversarial relationship between citizens and the state has increasingly characterized the United States since 9/11 — and the result is a society in which citizens come under increasing and near-constant scrutiny by government.
Spy Nation
In 1787, British economist and philosopher Jeremy Bentham proposed a new design for a prison that he called “Panopticon,” which he believed could be used to keep inmates more thoroughly under the control of jailers by either keeping them under surveillance at all times or by making them believe that they were under such surveillance, even when they weren’t. According to French philosopher Michel Foucalt, the purpose of the Bentham’s Panopticon is “to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So to arrange things that the surveillance is permanent in its effects, even if it is discontinuous in its action.”
Even though Bentham proposed that the Panopticon could in principle be expanded beyond the confines of a single building or institution, he’d no doubt be surprised that, in the 21st century, his vision for a surveillance state had been extended across the whole of society. Hard as it is even for those who live in the modern world to believe, everyone today lives under the threat of near-constant surveillance. Today’s reality is that of the Panopticon brought to life, of the “Big Brother” state firmly rooted not just in the fiction of the novel 1984, but also in the reality of 2007. (For more on George Orwell and 1984, see article "Orwell Was Right and Wrong.")
The most obvious tools of this surveillance state are the now almost-ubiquitous closed-circuit TV (CCTV) cameras that have increasingly popped up on commercial buildings, street corners, highways, and intersections. In New York City, the New York Civil Liberties Union (NYCLU) points out that a 2005 “survey found 4176 cameras below Fourteenth Street, more than five times the 769 cameras counted in that area in 1998.” The New York system is still expanding. According to the NYCLU, “The New York City Police Department, spurred by the promise of $9 million in Federal Homeland Security grants and up to $81.5 million in federal counter-terrorism funding, announced this year that it plans to create ‘a citywide system of closed-circuit televisions’ operated from a single control center.”
Video surveillance is not just confined to New York City. CCTV cameras are showing up in significant numbers around the country. Proponents argue that the law-abiding have nothing to fear — after all, if you have nothing to hide, why worry about the cameras? Columnist Jacob Sullum of Reason magazine is worried: “Knowing that you are being watched by armed government agents tends to put a damper on things. You don’t want to offend them or otherwise call attention to yourself,” he says. Sooner or later, he writes, “people may learn to be careful about the books and periodicals they read in public, avoiding titles that might alarm unseen observers. They may also put more thought into how they dress, lest they look like terrorists, gang members, druggies or hookers.” More to the point, perhaps they will worry about how they look to the NYPD Hercules team.
And perhaps they should also worry about how they sound, and whether or not they want a faceless government bureaucrat eavesdropping on their private conversations, since online privacy, and the privacy and security of personal and business phone calls, is also becoming a thing of the past. According to several former AT&T employees, the communications company has been cooperating with the secretive National Security Agency (NSA) to spy on Americans’ online activities.
Based on revelations from retired AT&T technician Mark Klein, in April 2006 Wired News reported: “AT&T provided National Security Agency eavesdroppers with full access to its customers’ phone calls, and shunted its customers’ internet traffic to data-mining equipment installed in a secret room in its San Francisco switching center.”
In a statement Klein recalled:
While doing my job, I learned that fiber optic cables from the secret room were tapping into the Worldnet circuits by splitting off a portion of the light signal. I saw this in a design document available to me, entitled “Study Group 3, LGX/Splitter Wiring, San Francisco” dated Dec. 10, 2002. I also saw design documents dated Jan. 13, 2004 and Jan. 24, 2003, which instructed technicians on connecting some of the already in-service circuits to the “splitter” cabinet, which diverts some of the light signal to the secret room. The circuits listed were the Peering Links, which connect Worldnet with other networks and hence the whole country, as well as the rest of the world.
One of the documents listed the equipment installed in the secret room, and this list included a Narus STA 6400, which is a “Semantic Traffic Analyzer.” The Narus STA technology is known to be used particularly by government intelligence agencies because of its ability to sift through large amounts of data looking for preprogrammed targets. The company’s advertising boasts that its technology “captures comprehensive customer usage data … and transforms it into actionable information.... [It] provides complete visibility for all internet applications.”
According to Klein, similar NSA installations were performed at other AT&T facilities around the country. One of the main locations, according to other whistle-blowers who came forward to speak with the online magazine Salon, was in St. Louis. There, according to the AT&T workers who spoke to Salon, secret government work has been underway in a highly secured room in an important AT&T facility. According to one of the unidentified workers, “It was very hush-hush. We were told there was going to be some government personnel working in that room. We were told, ‘Do not try to speak to them. Do not hamper their work. Do not impede anything that they’re doing.’”
What they have been doing has been open to speculation, but at least one former NSA agent believes the operation is likely to be run by his former employer. “You’re talking about a backbone for computer communications, and that’s NSA,” former NSA officer Russ Tice told Salon. “Whatever is happening there with the security you’re talking about is a whole lot more closely held than what’s going on with the Klein case,” he concluded. How invasive could the snooping be? “The network sniffer with the right software can capture anything,” one of the whistle-blowers told Salon. “You can get people’s e-mail, VoIP phone calls [calls made over the Internet] — even passwords and credit card transactions — as long as you have the right software to decrypt that.”
All of this snooping has been forced on carriers by the Communications Assistance for Law Enforcement Act (CALEA). Enacted in 1994 and expanded in 2005 by the FCC at the request of the Department of Justice and the FBI, the measure requires service providers to build surveillance technology into their networks. The Electronic Frontier Foundation, a watchdog organization that closely follows issues related to online privacy and security, describes it this way: “If we applied the FBI’s logic to the phone system, it would state that every individual phone should be designed with built-in bugs. Consumers would simply have to trust law enforcement or the phone companies not to activate those bugs without just cause.” That trust, it seems, would be misplaced. In May 2006, USA Today reported: “The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth.” No doubt the technology installations reported by Klein and the other AT&T employees who have come forward have played a key role in the collection of this data.
Though the Bush administration argues that the snooping is legal under the president’s current authority, the surveillance is really an unreasonable search and seizure and an unconstitutional invasion of privacy, according to a number of constitutional scholars and former government officials who wrote an open letter to Congress that was published in the New York Review of Books on February 9, 2006. The authors, who included former FBI Director William S. Sessions, Harvard law professor Laurence H. Tribe, and University of Chicago constitutional law professor Geoffrey Stone, wrote: “Although the program’s secrecy prevents us from being privy to all of its details, the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.”
It is a matter that hopefully will find a hearing in a courtroom. On January 31, 2006, the Electronic Frontier Foundation filed a class action suit against AT&T “accusing the telecom giant of violating the law and the privacy of its customers by collaborating with the National Security Agency (NSA) in its massive, illegal program to wiretap and data-mine Americans’ communications.” The Bush administration has sought to stymie the lawsuit, filing a motion to dismiss in May 2006. That failed, and now the administration is seeking congressional help in granting immunity to the service providers who cooperated with the NSA program. According to the April 14 New York Times, the Bush administration has proposed changes to the Foreign Intelligence Surveillance Act of 1978 that “would provide new legal immunity for telecommunications companies that have been sued for cooperating with the government as it conducts domestic wiretapping.” This drew the ire of Senator Arlen Specter (R-Pa.), who pointed out that the White House has not given Congress information about the role played by the companies in the NSA program. “That provision is a pig in the poke,” Specter said according to the Times. “There has never been a statement from the administration as to what these companies have done. That’s an intolerable situation.”
Future Surveillance
The next step in surveillance comes straight from Star Trek: The Next Generation, the second version of Gene Roddenberry’s iconic sci-fi program. In that program the location of any officer can be tracked via his or her communicator. In real life, existing technology is moving just as fast. Today almost all off-the-shelf cellphones — the real-life equivalent of the Star Trek communicator — have unique serial numbers, are equipped with Global Positioning System (GPS) capabilities, and, as long as they are on, send frequent signals to cellphone towers. All told, these capabilities mean that cellphone operators — and regulatory agencies — have the ability to know where each and every one of their customers is at all times, as long as the user’s cellphone is not switched off.
Missouri is slated to be the first state to begin systematically monitoring users’ cellphone signals. As part of a Missouri Department of Transportation project, state officials were to begin using cellphone signals to monitor traffic flow on 5,500 miles of the state’s roads and highways in 2006. The Missouri system will work by plotting cellphone signals on a map of the highway system, providing real-time information on the location and speed of each cellphone.
The system is supposed to be anonymous, but with enough data contained in each cellphone stream, the tracked data could prove tempting to law enforcement and state security officials who may want to take the system to the next level. “Each phone is uniquely identified and the information is compared with a highway map to record on what road each motorist is traveling at any given time,” reported TheNewspaper.com, which describes itself as an online journal of the politics of driving. “The system also records the speed of each vehicle, opening up another potential ticketing technology.” The Missouri plan has raised privacy concerns. “Even though it’s anonymous, it’s still ominous,” Daniel Solove, a privacy law professor at George Washington University, told the Associated Press. “It troubles me because it does show this movement toward using a technology to track people.”
Cellphones, however, are not the only technologies that could be used to track people without their knowledge. These days, in the age of highly computerized and automated cars, it may be your vehicle that is spying on you. If you own a luxury car with an always-available roadside assistance program like GM’s OnStar system, the technology can be used to eavesdrop on car occupants. That, in fact, has already happened, prompting a ruling from the 9th Circuit Court of Appeals as long ago as 2003.
According to technology reporter Declan McCullagh of c/net News, the court ruled in a case in which “FBI agents remotely activated the system and were listening in, [and] passengers in the vehicle could not tell that their conversations were being monitored.” The court found that this potentially interfered in the contractual agreement between the service provider and the customer on grounds that the FBI monitoring may have made the system inaccessible when, under the contract, the customer had a reasonable expectation that the system would be available at all times.
David Sobel of the Electronic Privacy Information Center characterized the ruling as only a “pyrrhic victory” for privacy. According to Sobel, “The problem [the court had] with the surveillance was not based on privacy grounds at all. It was more interfering with the contractual relationship between the service provider and the customer, to the point that the service was being interrupted. If the surveillance was done in a way that was seamless and undetectable, the court would have no problem with it.”
That’s not the only way cars can spy on their owners. Most new cars today include a black box that is similar to, if not as capable as, the black boxes that capture data about flight characteristics and operation in airplanes. In cars they are known as “event data recorders” (EDRs), and they typically record and store up to 20 seconds or more in data about the manner in which a car is being operated.
EDR technology is new and its current capabilities only hint at what is to come, leading to worries that cars of the near future will continuously spy on their owners. “There are a number of directions in which this technology is likely to go,” wrote the Cato Institute’s Jim Harper. “It could collect and retain more information for longer periods. It could interact with Global Positioning Systems (GPS) to record where a car has traveled. And it could combine with communications systems to signal authorities in real time.”
A Police State?
In its discussion of surveillance trends and technologies, the Electronic Frontier Foundation observed: “Most kinds of surveillance have gotten much easier in the digital age. Agents can tap mobile phones, gain access to reams of electronic communications such as email, conduct DNA identification tests, and track people’s locations using cell phone signals.” Moreover, as the NYPD has demonstrated with its Hercules deployments, some police departments are willing to dispatch officers on missions to intimidate civilians. Many suggest that these developments are needed to ensure security, but because these efforts cast such a wide net, they suggest that government has had a profound loss of trust in its own citizens and now views all citizens with suspicion — a situation that seems to be leading to the construction of an all-encompassing police/surveillance state.
Congressman and presidential candidate Ron Paul brought this issue to the floor of the House of Representatives on June 27, 2002. “With respect to a police state, where are we and where are we going?” Congressman Paul asked. “Let me make a few observations: Our government already keeps close tabs on just about everything we do and requires official permission for nearly all of our activities. One might take a look at our Capitol for any evidence of a police state. We see: barricades, metal detectors, police, military soldiers at times, dogs, ID badges required for every move, vehicles checked at airports and throughout the Capitol. The people are totally disarmed, except for the police and the criminals. But worse yet, surveillance cameras in Washington are everywhere to ensure our safety.”
In 2002, despite his ominous observations, Congressman Paul decided that America is not yet a police state, but that “it is fast approaching.” Five years later, America is still not a police state, but we are much closer to its realization than many of us may think. For now, many of the tools of surveillance are still controlled by disparate authorities at the local, state, and federal levels. But, as with local police generally, local agencies are coming more and more under the control of the executive branch of the federal government. Human nature being what it is, the accumulation of what is becoming a monopoly of power in Washington, D.C., will eventually be used to impose tyranny, unless of course we work to reverse that trend, and to maintain the separation of powers so essential to preserving our liberties.
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