Where Terror, Crime and Law Abiding Citizens Meet

The American Constitution was intended to constrain the government’s investigative authority, but that seems more and more like a thing of the past, especially with the new ICREACH program.

Many of the advocates of online surveillance use the terror threat as the main reason to justify the incredible invasion of privacy going on worldwide. And although some might agree that intelligence agencies should have this ability to fight terror at home and overseas, it makes no sense that the same spying powers should be granted to other governmental agencies. But this is exactly the case, as revealed recently by yet another Snowden leak.

Turns out, the DEA and FBI may know what medical conditions you have, whether you are having an affair, where you were last night, and more—all without any proof that you have ever broken a law and without them playing any official part in the counter terrorism campaign. That’s because the DEA and FBI, as part of over 1000 analysts at 23 U.S. intelligence agencies, have the ability to peer over the NSA’s shoulder and see much of the NSA’s metadata with ICREACH. Metadata is transactional data about communications, such as numbers dialed, email addresses sent to, and duration of phone calls, and it can be incredibly revealing. ICREACH, exposed by a release of Snowden documents in The Intercept, is a system that enables sharing of metadata by “providing analysts with the ability to perform a one-stop search of information from a wide variety of separate databases.” It’s the latest in a string of documents that demonstrate how little the intelligence community distinguishes between counter-terrorism and ordinary crime—and just how close to home surveillance it may really be.

The argument goes like this: Metadata can’t be privacy invasive, isn’t very useful and therefore its collection isn’t dangerous—so the Constitution shouldn’t protect it and it can be shared among agencies. Even the President said, “what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at people’s names, and they’re not looking at content” — as if that means there is no privacy protection for this information.

Metadata is king

But that’s not a credible claim. As former director of the NSA and CIA Michael Hayden recently admitted: “We kill people based on metadata.” And former NSA General Counsel Stu Baker said: “metadata absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content.” In fact, a Stanford study this year demonstrated exactly what you can reconstruct using metadata: “We were able to infer medical conditions, firearm ownership, and more, using solely phone metadata.” Metadata can show what your religion is, if you went to get an abortion, and other incredibly private details of your life.

And now every law agency is about to use it. As The Intercept article pointed out, one serious concern is that data obtained through ICREACH could be used for parallel construction— the practice through which the DEA obscures the source of tips it receives from the NSA and then passes on to other law enforcement agencies. The DEA will “recreate” investigative trails, and hide the source of the information from defense lawyers, judges, and prosecutors. With parallel construction, NSA data can be used in ordinary criminal investigations, without any way to challenge the collection of that data in court. This runs blatantly counter to notions of due process and the right to a fair trial, to question and confront witnesses, and have competent counsel.

So there you have it. Americans are an open filing cabinet for law agencies and even local police force to sip through it. If you had an affair and aborted an unwanted pregnancy, someone in the government knows it. If you own a gun and went under a period of depression, you might be on file and since laws are ever changing, you could be facing charges even if you’ve done nothing wrong at the time.

Would you like your metadata to go to the police? Leave a comment and tell us!