The Government is Spying on You & this Law Could Help End It
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We live in a country so rhetorically committed to “freedom” that we sing about it at baseball games. Yet despite legal protections for dissent so fundamental that we embed them in our Constitution, enabling those protections to (ahem) trump other laws, our government has used surveillance and “intelligence” to suppress dissent for a century. Today, California policymakers have a critical opportunity to protect privacy and dissent today by requiring public oversight.
U.S. history is replete with government surveillance undermining dissent. Among the FBI’s first acts were the 1919-20 Palmer Raids targeting labor organizers. Later came a 40-year assault on democracy by J. Edgar Hoover’s FBI during the COINTELPRO era: a congressional investigation uncovered a longstanding FBI program to infiltrate and “neutralize” groups promoting civil rights, as well as peace in Vietnam, native American rights, Puerto Rican independence, and more.
The FBI witch hunt continued throughout the 80s, targeting thousands of activists working in solidarity with Latin America through CISPES (the Coalition in Solidarity with the People of El Salvador). It continued into the 90s when dozens of peaceful animal rights activists were prosecuted as terrorists, landing them in prison, where many still languish.
Surveillance in the U.S. has never been limited to ensuring public safety.
It started by monitoring black bodies to support forced labor and servitude. Today, we monitor brown bodies to prevent migration driven by our own country’s trade, foreign, and drug policies. The United States has a sad, deplorable, and continuing history of discriminatory surveillance.
In our country, surveillance has always been politicized.
On the one hand, government surveillance has bipartisan fingerprints. The establishment wings of both the Republicans and Democrats—led by Nancy Pelosi and Paul Ryan—have repeatedly endorsed effectively limitless power for the executive branch to spy on Americans in secret.
On the other hand, these powers threaten democracy uniquely at the moment, since these limitless powers are currently wielded by a clown show led by a kleptocrat. The specter of surveillance driven by an “official” agenda poses as severe a risk to our Republic as Russian interference with our elections.
How does our government spy on Americans? And what can we in California do about it?
How They Spy
Secret government surveillance might bring to mind the Snowden revelations—and it should, since Congress has never finished the job of responding to them, or even bothered to ever invite any of several NSA whistleblowers as a witness in any oversight hearing.
But don’t forget that the FBI audiotaped Dr. Martin Luther King, Jr. and wrote fake letters encouraging his suicide. Joined by Chicago police, the FBI also assassinated a young black organizer of free breakfast programs in his bed while he slept.
And don’t forget the Ferguson uprising of 2014, which brought into stark relief not only militarized weaponry in the hands of police, and its use to suppress dissent (ironically responding to indiscriminate police violence) but also the local dimension of surveillance.
Cops from the LAPD to CHP increasingly wield surveillance tools, many originally developed for the military. Whether or not we think that’s OK, one would hope that in any freedom loving country—especially one with our regrettable history of betraying our own stated principles—we would want a public discussion, transparency, oversight, and accountability.
Otherwise, the documented pattern of federal employees and contractors spying on their former lovers could become just the tip of an iceberg.
In 2003, a few months after graduating from law school (and literally the day before learning I passed the California bar exam), I joined a demonstration in Miami protesting international trade agreements that undermine labor and environmental protections. After confronting brutal state violence, we eventually learned that Miami police used military surveillance tools to essentially misdirect and tap cell phone traffic.
But it took ten years to find out.
At the time, no one outside the military, law enforcement, or the corporate contractors who manufactured the devices knew they even existed. To this day, cell-site simulators (which have evolved dramatically since the original Stingray model) remain largely unregulated.
Thankfully, California adopted an Electronic Communications Privacy Act in 2015 (CALECPA) that imposes a warrant requirement for police to use cell-site simulators. We remain at the vanguard of privacy, as similar protections have been disregarded in other states. But what about tomorrow’s spy technology? Or, for that matter, current tech outside CALECPA’s requirements, like Automated License Plate Readers that collect nearly two million records every week in Los Angeles alone?
What We Can Do
For two years in a row, a set of reforms that would force transparency and enable local public oversight has passed the State Senate. Last year, it died before the Assembly Appropriations Committee without receiving a vote.
This year, S.B. 1186 is back before the same committee. Chairwoman Assembly Member Lorena Gonzalez Fletcher represents a district stretching south along the coast from San Diego to the border which has been no stranger to surveillance.
She has the power to end the era of secrecy and empower communities across California. Or she could kill it, by not letting it have an up & down vote.
To be honest, the measure is not a solution. Like the USA FREEDOM Act passed by Congress in 2013 after learning from Snowden how the PATRIOT Act had been abused for over a decade, S.B 1186 would represent just a beginning.
In particular, it would give the public the right to comment on proposed surveillance tools before they are acquired. It would force police to document the risks to privacy as part of a public proposal. And it would let local elected officials decide whether or not any proposal could proceed.
Transparency, oversight, and accountability are process requirements, far short of the substantive limits on data collection,retention, sharing, and use that we ultimately need to ensure that surveillance doesn’t become a tool of thought police.
But as Agent Orange threatens to turn the Bush-Obama surveillance state into Big Brother, a requirement for local public process could be the difference between a foot in the door and the nail in a coffin.
Shahid Buttar is a constitutional lawyer, electronic musician, and former congressional candidate. Professionally, he serves as Director of Grassroots Advocacy for the Electronic Frontier Foundation. This article represents his individual views, and do not necessarily reflect those of his employer.