Temptations no civil servant should have at their fingertips

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How do you get politicians to care about privacy?
Film maker Cullen Hoback explains how he has used his anti-surveillance documentary - and two NSA whistleblowers - to push for policy reform in Washington
By Cullen Hoback, January 13, 2014

Beneath the US Capitol building there is one of the swankiest theatres in which I’ve screened my film, Terms and Conditions May Apply, to date.

The space is usually reserved for tours during the daytime, but at night if you have the magic key - a Congressman- movie magic can happen for Capitol Hill’s elite.

Our magic key was Congressman Justin Amash, a second-term representative from Michigan who made a splash this summer with his stance on government surveillance. He introduced a narrowly defeated amendment (205-217) that would have defunded the mass data collection that Section 215 of the FISA Amendments authorises. It has since become known as the Amash Amendment, and it was the first beacon of hope that Washington might reform the Patriot Act.

While introducing the film, the Congressman laid out a somewhat bleak view regarding his leadership role in the field of privacy, “Civil liberties have been my focus in Congress, maybe in some ways unintentionally, I wish there were more people who cared about civil liberties here.”

So how do you get Congressmen to care about privacy?

One way might be to show them a film that clearly lays out the stakes, then bring out a panel of NSA whistleblowers to let them know that when it comes to the surveillance state, we are very much all in this together.

So that’s what we did.

Russ Tice and Thomas Drake, two whistleblowers that used to work for the NSA, took to the stage after the credits rolled. It turns out the intelligence community doesn’t take kindly to those who shine a light on their behavior. While Edward Snowden was forced to take hiding in Russia, Drake now spends his days working at an Apple store.

I asked them point blank “whether or not members of Congress are being spied on by the NSA?”

Tice responded: "Back in 2004, 2005, the first hard target that the NSA was going after was Secretary Colin Powell and they were doing that with space systems at the time. When I got together with my friends that were working the terrestrial side, and that means fibre optics [...] they were mainly members on the intel committees, the armed services committees, and all of the senior leadership [...] NSA was wiretapping all of those individuals in Congress."

You can imagine the chilling effect this had as it fell on the ears of members of Congress and their staffers. Having been in DC meetings where the phrase ‘off the record’ isn’t used lightly, I can tell you that there’s no better way to scare a Congressman than letting them know they’re being spied on too.

I also can’t help but think that the effects of this conversation reverberated through the Congressional halls in its wake. Just this week, Rep. Bernie Sanders repeated my question to General Alexander: “Are you spying on members of Congress?”

Alexander’s response was “Members of Congress have the same privacy protections as all US persons.”

That’s comforting.

While I am deeply concerned for the rights of the average citizen - my film shows case after case of perfectly innocent people and protestors having their lives upended by these spy systems - I’m far more concerned about spying on members of Congress. Ask any Congressman what the value of a secret is. Unsavoury and unethical secrets can topple legacies, and a secret found by looking at phone conversations, emails, web history, and GPS data - even taken out of context - can be used to leverage and blackmail.

Heck, blackmail and leverage are the bedrock of every plot in House of Cards, a show about political ambition and how to accomplish things in Washington (people in DC love this show). Obama even joked that he wished he had a majority whip like the character Kevin Spacey plays in the show because he’s “getting a lot of things done". Or ask any journalist who is trying to protect a source, a source who allows us to know that corruption exists.

What is the relationship between the NSA and Congress?

During the discussion, Russ Tice named Congresswoman Dianne Feinstein directly as someone he knows the NSA was spying on as far back at 2004-2005. I have no hard evidence that this is true. The man is a whistleblower, and you have to decide for yourself if you want to believe him; unfortunately he didn’t leave with 10,000 pages of classified proof. But remember, bureaucracies don’t go down without a fight.

Why might the NSA have a particular interest in Dianne Feinstein? Well, she is the head of the Senate Intelligence Committee. If you’re part of this privileged group, you’re granted access to highly classified information surrounding the NSA’s activities. And when an agency operates outside the parameters of the Constitution, as Thomas Drake, the other whistleblower that day put it, “there’s an extraordinary temptation to spy on even those who have oversight over you, spy on those who would pass legislation that would affect you.”

What these whistleblowers made clear is that Congress is being spied on: what and how that information is being used is the only thing that’s up for debate.

And the power needed to capture a vote from a politician is the very same power that can be used to catch a source leaking to a journalist. We know this has already happened with The Associated Press and Al Jazeera. In other words, the NSA has the power to spy on the systems that are supposed to check and balance them.

Interestingly, on the same day we screened Terms and Conditions May Apply, Rep. Jim Sensenbrenner introduced his own bill called The USA Freedom Act. If you’re unfamiliar, not only does this bill provide sweeping reform and oversight of the NSA, but it has over 70 co-sponsors from both sides of the aisle, including our host Congressman Amash, and it is supported by the American Civil Liberties Union. And the most jaw-dropping part is that Rep. Sensenbrenner is the same guy who fathered The Patriot Act!

If the man who helped pen The Patriot Act wants to reform it, why isn’t everyone who voted for it on board?

It was a powerful and paradoxical moment, screening Terms and Conditions May Apply under the US Capitol. On the one hand, democracy may well be facing its greatest threat in a generation. On the other hand, we were able to openly discuss these problems with two NSA whistleblowers in front of legislators.

But many of those legislators might be “pwned” - that is, owned by a spy bureaucracy three times the size of the CIA. The same could be true for judges and any number of government officials. This is why the Fourth Amendment exists in America; because secrets do matter.

And if you have the ability to know a secret about a powerful person, that power becomes yours. This is a great temptation, a temptation no civil servant should have at their fingertips.
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