Elliot D. Cohen: Why Haven't the Mainstream Corporate Media Covered the AT&T/NSA Domestic Spying Program?
A BUZZFLASH GUEST CONTRIBUTION
by Elliot D. Cohen, Ph.D.
The recently passed "Protect America Act of 2007" (S. 1927), which expands presidential powers under the Foreign Intelligence Surveillance Act (FISA) to spy on our overseas phone and e-mail communications without a court warrant, appears to be just the tip of the iceberg of government eavesdropping on American citizens. Yet, mainstream media (MSM) have given scant coverage to the NSA/AT&T domestic spying program, and a landmark case now pending before the 9th circuit federal appeals court, the outcome of which may mark the final blow to Fourth Amendment privacy rights in America.
On January 31, 2006, the Electronic Frontier Foundation (EFF) filed a class action suit against AT&T for allegedly collaborating with the National Security Agency (NSA) in electronically eavesdropping on the phone and e-mail messages of millions of Americans, both domestic and overseas, as these communications passed through the AT&T system. This program, which appears to have been approved by the President, first came to light in 2005 when an AT&T employee at the San Francisco hub blew the whistle on the program. The whistleblower (who produced photographs and other pertinent documents) claimed that AT&T kept a "secret" room requiring NSA clearance. As millions of phone and e-mail messages entered the hub, wires were spliced to reroute them through this room. The messages were then parsed for key language related to whatever the government was searching for -- presumably, terrorists. Other whistleblowers eventually reported similar secret rooms at other AT&T hubs in other U.S. cities, including St. Louis, Seattle, Atlanta, and Los Angeles.
Both AT&T and the Justice Department made motions to dismiss the case. Not denying the existence of the program, the Justice Department argued that the trial would require disclosure of top secret information. AT&T claimed immunity under a provision of the Electronic Communications Protection Act (18 U.S.C. 2511). However, presiding U.S. District Court Chief Judge Vaughn Walker denied both motions, arguing that "The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security." The Bush administration then appealed the decision to the 9th circuit, where amidst passage of S. 1927, it is now pending before the 9th circuit. There are also 54 other lawsuits involving NSA spying whose fates, along with the EFF case, await the 9th circuit's ruling.
Prior to the enactment of the "Protect America Act of 2007," FISA limited electronic surveillance without a court order to "the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers" (italics added) where there was "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." Otherwise a warrant from a FISA court had to be issued. Now, under the extended powers, no warrant is needed as long as the surveillance is "concerning persons reasonably believed to be outside the United States." In this regard, the revised law "clarifies" the previous FISA definition of "electronic surveillance" stating, "Nothing in the definition of electronic surveillance under section 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States" (Section 105A). Thus, for example, it does not matter whether an overseas communication is between two U.S. citizens-one located in the US and the other outside of it -- just as long as the surveillance is "directed at [the] person reasonably believed to be located outside of the United States." This means that all overseas communications coming in and out of the United States can be monitored without warrant or probable cause.
The "Protect America Act of 2007" also gives telecom companies such as AT&T and Comcast a central role in the acquisition of foreign intelligence by stipulating that the information acquired must be obtained from, or with the assistance of a communications service provider including any employee, agent, or officer thereof "who has access to communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications." Accordingly, the Act legalizes the role of telecom companies as accomplices in eavesdropping on the overseas communications of Americans.
But the plot thickens still. In addition to monitoring all overseas communications, and making the telecoms an accessory, the Bush administration now wants the 9th circuit to permit the AT&T/NSA spying program. Since this program indiscriminately monitors all communications made through a service provider, this would permit government eavesdropping on all communications occurring in the United States, including ones exclusively between American citizens -again, presumably, to "protect" America. The pattern here is by now a familiar one: violate the law, legalize the violation, and then use the legalized violation as precedent for legalization of further previously unlawful actions.
The present slippery slope toward the demise of Fourth Amendment protections also has implications for the First Amendment rights of freedom of speech and of the press. If government is authorized to police private communications without court warrants granted on the basis of probable cause, then this can have a chilling effect on what is said in these communications; and it is not difficult to foresee this progressive pattern of oppression leading toward the silencing of opinions deemed by the president "hostile" to "national security." (Legal precedent already exists for this. See, for example, the chilling new definition of "unlawful enemy combatant" in the Military Commissions Act of 2006.)
Unfortunately, there has been scant coverage by MSM of the AT&T/NSA spying program and the pending court cases against it, despite the imminent threat this program and its legalization poses to communication privacy in America, and indeed to democracy itself. So why haven't the MSM given due attention to this serious threat to national security?
The answer probably lies in the ever-increasing trend toward corporate media consolidation in America. First, the MSM corporations including News Corp (FOX), General Electric (NBC), Time Warner (CNN), Viacom (CBS), and Disney (ABC) have all enjoyed joint ventures with AT&T. Since these few giant media corporations that control network news in America are driven largely by their bottom lines, they are not likely to persist in exposing a serious business partner to bad press. Consequently, such stories are played down or not covered at all.
Second, the behemoth media and telecom companies have strong monetary incentives to cooperate with the government -- such as the receipt of lucrative military defense contracts, tax breaks, and relaxed ownership and antitrust rules. For example, the recent merger of Bell South with AT&T was possible only because the Federal Communication Commission (FCC), presently chaired by Kevin Martin, a Bush appointee with close ties to the White House, approved the merger.
It is therefore easy to see how these giant corporations have allowed themselves to become pawns of what may be the most powerful and controlling White House in American history. In the present situation, the Bush administration has exploited their voracious appetites for profit in order to eavesdrop on American citizens. Sadly, it is the American experiment in democracy that has paid the price.
In the end, democracies stand or fall on the collective, unified power of the people. If the American people, in substantial number, refuse to use (or reduce reliance on) the services of giant telecommunication corporations that cooperate with government in undermining our constitutional rights (enlisting when we can the services of other companies that refuse to cooperate), then these giant companies will be likely to listen -- since to do otherwise would mean lost revenues. Similarly, if we are willing to seek alternative, independent media to keep informed (and we must keep informed), then giant media companies such as News Corp, Time Warner, and General Electric will be less likely to censor and play down the stories that independent media are now competently covering. Unfortunately, most Americans get their news from the MSM, not from independent media such as Web-based sites. This would need to change if democracy in America is to survive.
A BUZZFLASH GUEST CONTRIBUTION
Elliot D. Cohen, Ph.D. is a media ethicist and critic. His most recent book is The Last Days of Democracy: How Big Media and Power-Hungry Government are turning America into a Dictatorship. He is also first prize winner of the 2007 Project Censored Award.
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