Retaliation

Mass surveillance and data collection expose us to the danger of retaliation for actions and choices that are legal, but that others regard as controversial, immoral, or disloyal. We should be able to make private decisions, protest injustices, or blow the whistle on our employer without fear of reprisal.

Many of the illegal or improper disruptive efforts directed against American citizens and domestic organizations succeeded in injuring their target… Sometimes the harm was readily apparent – destruction of marriages, loss of friends or jobs. Sometimes the attitudes of the public and of government officials responsible for formulating policy and resolving vital issues were influenced by distorted intelligence. But the most basic harm was to the values of privacy and freedom that our Constitution seeks to protect and which intelligence activity infringed on a large scale.

Report of the U.S. Senate “Church Committee,” 1975

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Mass surveillance and data collection can lead to retaliation for a person’s lawful actions and choices to which the government or private entities object. We should be able to make decisions, protest injustices, or blow the whistle on our employer without fear of reprisal.

The congressional Church Committee, which investigated unconstitutional abuses by federal intelligence and law enforcement agencies in the 1960s and 1970s, famously found that covert programs had been used “to disrupt the lawful political activities of individual Americans and groups and to discredit them, using dangerous and degrading” retaliatory techniques. Such tactics included sending anonymous letters to activists’ family or employers accusing them of infidelity, drug use, and disloyalty. The committee found one internal FBI memo calling for “more interviews with New Left subjects,” reasoning that although they would probably turn up no valuable information, they would “enhance the paranoia endemic in these circles.” Modern surveillance tools – which can secretly track individuals’ movements for months, monitor email and web browsing, or identify every cell phone in the area of a protest – make these abuses easier than ever. Moreover, since much of this data is available to all as a public record or through comprehensive privately organized databases, the risk of retaliation by private parties is even greater. An abusive spouse might use ALPR data to discover his or her partner is visiting an abuse counselor or divorce lawyer, or an extremist group could use it to find out who works at a local reproductive health clinic.

One specific danger – one that can undermine government accountability – is the increased risk of retaliation against whistleblowers. We rely on government employees to inform agency heads, elected officials, the press, and the public of wasteful, abusive, and irresponsible conduct they observe on the job. By bringing the truth forward, however, they frequently earn the ire of their colleagues, supervisors, and powerful government figures. In an attempt to discredit or retaliate against them, officials have often launched investigations into the whistleblowers themselves, trawling their communications for contact with journalists or watchdogs or even seeking personal information that could be used to cast aspersions on their competence, honesty, or loyalty. If the government can use conduct surveillance to build files on whistleblowers, many will refuse to come forward with what they know.

Examples of Use

Location::
Silver Spring, MD
Spying on whistleblowers
Few would expect the Food and Drug Administration – the federal agency that regulates food, tobacco, pharmaceuticals, and medical devices – to use cutting-edge surveillance technology to illegally monitor communications among scientists, journalists, White House lawyers, and congressional staffers. However, that’s exactly what the FDA did for nearly two years. In 2010, agency managers launched an electronic surveillance operation to investigate FDA medical researchers they suspected of “collaborating” with outside watchdogs to tarnish the agency’s image. The researchers had repeatedly argued that flawed reviews had led to the approval of medical imaging devices that emitted dangerous levels of radiation. Frustrated by their supervisors’ inaction, they had taken their concerns to the press, Congress, and the Obama Administration. In response, the agency installed spy software on five of its own scientists’ computers. “The software,” according to the New York Times, “tracked their keystrokes, intercepted their personal emails, copied the documents on their personal thumb drives, and even followed their messages line by line as they were being drafted.”

Questioned by the House Government Oversight Committee, FDA managers insisted that the purpose of the software was to identify the employee who had compromised a General Electric trade secret months before the investigation began. The committee’s report noted that if that were the case, it would have been pointless. The software served only to monitor the employees’ current activities, not to look for past leaks.

Recommendations

When government agencies consider acquiring and using surveillance systems, communities and their elected officials must both weigh the benefits against the costs to civil liberties and carefully craft policies and procedures that help to limit the negative effects that surveillance will have on fundamental rights. For a useful list of considerations, please visit the recommendations page.