Michael Flynn
President-Elect Donald Trump’s like-minded choice of retired Lieutenant General Michael Flynn for national security advisor portends grave consequences for the survival of human freedom and dignity in an age of mass warrantless surveillance. The technology infrastructure is now in place for the abuse and manipulation of the masses, including racial profiling, by a government administration so inclined; and it now appears that we may be on our way to installing such a government. As surveillance technologies rapidly evolve, there will be increasing opportunity for such abuse and manipulation to expand beyond the comprehension of most.
A telling sign of a government administration with an inclination toward oppression is the silencing of an independent media and the refusal to tolerate criticism, including the exercise of the First Amendment right to free assembly. Trump has already shown animosity toward the media and peaceful protest by those dissatisfied with him. Nevertheless, we are now about to turn over to this individual and his future administration a colossal system of mass surveillance that has the ability to capture and inspect virtually all electronic communications on the planet, including the email messages, internet searches, and phone calls of millions of American citizens. With the advent of smart TVs, which are attached to the internet, it is even possible to peer into the living rooms of people’s households. With these technological capacities, and even more intrusive ones on the horizon, the nightmarish fiction of George Orwell’s 1984 may soon become a chilling reality.
Under the Obama administration there have allegedly been attempts by the Justice Department to spy on journalists. A Trump administration, which is particularly inclined to silence the press, will predictably engage in wide ranging, systematic surveillance of journalists. As a result, the First Amendment protection of a free press unimpeded by government interference would be subverted.
In Russia, government censorship has escalated in the past few years. According to the Electronic Frontier Foundation (EFF), the Russian government now targets news sites, bloggers, and politicians “under the slimmest excuse of preventing unauthorized protests and enforcing house arrest regulations.” ISPs are required to block major news sites on its “black list” and to take them down. Inasmuch as both President Elect Trump and National Security Advisor Flynn share a common affection for Russia despite its human rights violations, it would not be surprising if they found further common ground on Russian policy regarding internet censorship.
Presently, the National Security Agency (NSA) conducts mass internet sweeps of electronic information that swallow up the communications of U.S. citizens as well as foreign persons. The Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2008 permits government to conduct warrantless searches that (“unintentionally”) capture the communications of U.S. citizens, including wholly domestic ones. Section 702 of FISA has been interpreted by the FIS Court, which oversees such data collections, as allowing this so long as a “significant purpose” of the search was to target a non-U.S. Person. The Court does not require the NSA to get approval of the particular algorithms or search terms it uses to conduct surveillance activities. Instead it requires it to “minimize” the acquisition, retention, and use of information concerning non-consenting U.S. persons consistent with the U.S. need to obtain foreign intelligence information. Unfortunately, pursuant to these minimization standards, the Justice Department polices itself in this endeavor, so that an Attorney General who is willing to turn a blind eye on abuses of information-gathering involving non-consenting U.S. persons could permit such abuses to occur without judicial oversight. This underscores the need for an impartial Attorney General to fill the shoes of this office in a Trump administration. Unfortunately, Trump’s choice of an Attorney General, Jeff Sessions, has already raised questions due to alleged racist comments he made thirty years ago. Sessions has denied these allegations and, hopefully, should he be sworn into office, will avoid countenancing the targeting of U.S. persons along racial lines.
The concern that racism may fuel government surveillance of U.S. citizens is inflamed by the Trump team’s consideration of maintaining a Muslim registry whereby all Muslims would need to register with the government. Add to this that National Security Adviser Michael Flynn has made blatantly racist comments. “Islam is a political ideology,” he stated. “It definitely hides behind this notion of it being a religion…. It’s like cancer. … And it’s a like a malignant cancer, though, in this case. It has metastasized.” Since Flynn thinks that Islam is a “political ideology,” then, presumably, he does not believe that it deserves the First Amendment protection of freedom of religion; and there is a short step from there for him to connect it with terrorism, and therefore place it altogether outside the limits of constitutionally protected free speech. There is, indeed, a chill in the air about whether a Flynn-Trump NSA will conduct targeted sweeps of Muslim Americans, or other racial groups, in an attempt to round them up based on pretenses gleaned from spying on their personal electronic communications and internet searches, and put them in internment camps. This possibility is very real given the lack of direct judicial oversight of mass, warrantless surveillance and the views of the person now slated to direct it.
Nor is this possibility one that lacks precedent in the conducting of U.S. intelligence. According to a 2002 NSA document leaked by Edward Snowden, NSA and FBI targeted prominent Muslim Americans after the 9-11 attacks under the George W. Bush Administration. However, these surveillance activities were pursuant to search warrants issued by the FIS Court. An even more insidious possibility is that of the Trump administration’s conducting mass racial profiling barring any judicial oversight whatsoever. While, under the Obama administration, the Justice Department has sought to restrict the use of racial profiling in conducting electronic searches, intelligence agencies have, since 9-11, been inclined to defend it as necessary for gathering foreign intelligence. It is not unlikely that, under a Trump administration, new rules will be devised that grant federal agencies the authority to engage in unfettered racial profiling consistent with that of the Bush administration after the 9-11 attacks.
Unfortunately, the Obama administration has failed to install content filters or other built-in electronic safeguards on the spy network to prevent abuses of electronic data collections. It has also left intact the equivalent of the honor system in oversight of FISA Section 702 data collections. Moreover, overseas tap points have absolutely no FISA controls since they are outside the jurisdiction of U.S. law. The system is more powerful than ever before in sucking up personal data and creating digital footprints of individuals, including those of U.S. citizens, when strong selectors (names, addresses, etc) are entered. At the same time, the system is prone to produce hundreds of thousands of false positives when algorithms are entered in conducting mass surveillance sweeps. This means that masses of individuals who never committed any terrorist or other criminal activities can be falsely connected with such activities, and falsely singled out as targets of investigation, especially if the individuals in question happen to have ethnic names. As such, the potential for abuse by a government administration intent on exploiting this system to amass power and control over U.S. citizens is astronomical. As surveillance technologies evolve toward becoming even more intrusive, this crisis can only be exacerbated.
Presently, the Defense Advanced Researching Agency (DARPA), the arm of the U.S. Defense Department that has brought us the internet, is engaged in a 60 million dollar project to connect human brains directly to the internet through brain-computer interfaces. This would, in principle, enable people to use their thoughts to surf the internet. Conversely, it would allow internet enforcers to surf people’s brains. As a consequence, the possibility of “mind police,” who have the legal authority to arrest people for “subversive” thoughts, a theme explored in the 2002 film, “Majority Report,” could actually become a reality. Enter also the potential for government mind control of U.S. citizens, and the short-circuiting of their ability for independent thinking. Hindsight is, of course, better than foresight. Wishful thinking that this could “never happen” is oblivious to history and rationalizes the genuine threat inherent in an autocratic government takeover of technologies that lend themselves to ever-increasing oppression of human freedom and dignity.