Opinion

John E. Sununu

Unbridled cellphone spying goes too far

04/02/14: Boston, MA: A fan shoots the show with a cellphone camera as Miley Cyrus is pictured during her concert appearance at the TD Garden. (Jim Davis/Globe Staff) section: living topic: 03miley_photos
jim davis/Globe staff/file 2014

How would Americans react if every time they left home, a federal agent was waiting on the front steps to check their identification? “Not to worry,” would come the assurance, “we’re just making sure that you are not on our target list. If everything checks out, you are free to go about your business without further surveillance.”

If you consider that scenario farfetched, think again. As The Wall Street Journal reported last week, the Department of Justice operates a program analogous to that description — only substitute “cellphone” for “front door.” Flying specially equipped aircraft, the US Marshals Service captures and examines the identity of thousands of cellphones in a single sweep while searching for signals that match a supposed target.

Gathering data from citizens’ cellphones, even if only briefly, may violate the Constitution — the program has yet to be challenged in court. At the least, it pushes the envelope of what ordinary Americans would consider to be appropriate information gathering on law abiding citizens. Equally striking, the system was developed with assistance from the Central Intelligence Agency, an organization specifically banned by law from domestic spying.

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Legal or not, the program represents every overindulgence of the homeland security state rolled into a single misguided effort. Start with the sheer breadth of the operation. As described in news reports, the system mimics cell tower operation to gather registration information from thousands of devices at once, and covers essentially everyone in the country. A spokesman for the Justice Department provided reassurance that the data gathering is “subject to court approval,” though precisely what that means remains unclear.

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That kind of ambiguity raises alarm bells at the Senate Judiciary Committee, whose chairman, Chuck Grassley, requested specifics about the program’s legal authority, oversight, and civil liberty protections. If the Justice Department actually obtains search warrants prior to deployment, it would seem they could accomplish the same objective with a targeted approach that locates specific phones using wireless companies’ existing networks.

That, of course, would deny the US Marshals the use of an exciting and expensive new technology – the stuff of which bureaucratic dreams are made. Today, it’s hard to find an American community of any significant size that hasn’t been struck by the fever for bomb detecting robots, stoplight cameras, or armored assault vehicles. The Marshals’ captivation with $500,000 sweeping devices simply represents the federal expression of that primal urge for shiny new objects.

All told, the CIA is estimated to have spent $100 million on the spy technology. That may be a great value, considering the uses it might find for gathering intelligence overseas, but turning the technology against US citizens is another story.

For decades, agencies like the CIA and National Security Agency have been explicitly prohibited from engaging in or assisting with domestic surveillance activity. Their mission is to develop foreign intelligence, not fight domestic crime. In response, the Department of Justice again offers vague assurance that this activity has been carried out “consistent with federal law.” Still, no one has provided any description of the extent to which the CIA helped to train, support, or conduct Marshals Service phone sweeps during the past decade.

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And lastly, none of this activity has been authorized by Congress. The DOJ doesn’t necessarily require approval to deploy new technology, but given the scope and sensitivity of this surveillance, most Americans — and members of Congress — would expect there to be legislation that carefully defines and limits such an undertaking.

To be sure, just like facial recognition software or license plate readers, this technology — properly deployed — could have a role to play in law enforcement. Broadly deployed, however, these systems’ indiscriminate scanning, identification, and registration crosses an important threshold of privacy. They push the boundaries of the Constitution and, more important, violate our sense of what it means to be free from the prying eyes of government.

Those who simply shrug off this encroachment of the surveillance state on everyday activities — “you were the one who chose to use a cellphone” — are debasing the Fourth Amendment, and with it, much of the central thrust of the Declaration of Independence’s “inalienable” right to liberty. To me, at least, that includes the ability to leave your home, speak with a friend, or use the telephone, with the confidence that — absent an authorized warrant against you — that the government is not identifying, photographing, monitoring, or tracking you.

You may think that’s paranoid, but is it really paranoia if they are flying in the sky above you, reading your cellphone?

John E. Sununu, a former Republican senator from New Hampshire, writes regularly for the Globe.

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