Op-Ed: The federal government has been caught spying on American citizens (again)

America’s political elite largely ignore the fact that Federal intelligence and law enforcement agencies are illegally spying on private citizens. Evidence of routine abuses piles higher and higher, but most politicians are too preoccupied with other concerns to combat domestic spying. Only a few stand-outs regularly sound the alarm on Washinton’s Big Brotherism.

Enter U.S. Sen. Ron Wyden.

Fresh off of exposing problematic surveillance practices at the CIA, the Oregonian Democrat is calling for another investigation into Federal data gathering methods. In a now-public letter to DHS Inspector General Joseph V. Cuffari, Wyden alleges that the Phoenix office of Homeland Security Investigations (HSI), a component of DHS, has serially issued illegal customs summons (a type of subpoena) to obtain citizens’ financial data without warrant.

These subpoenas compelled Western Union and Maxitransfer Corporation to provide more than six million records to the Transaction Record Analysis Center (TRAC), a non-profit entity which “facilitate[s] law enforcement access” to the bulk transaction data of money transfer businesses. According to Wyden, TRAC has “enabled hundreds of law enforcement agencies to have unfettered access, without any supervision by the courts, to the financial transactions of millions of people.”

That’s bad news for all of us.

HSI Phoenix’s conduct raises several legal concerns. First off, customs summons are a statutorily limited tool, which may only be issued to obtain records directly relevant to a specific investigation – not to facilitate long-term bulk data collection. But the scope of HSI’s subpoenas were staggeringly broad. Records of any money transfer of $500 or more sent either to or from a party in California, Arizona, New Mexico, Texas, or Mexico were fair game. And there are only eight customs summons in question – but they forced the turnover of about 6,211,000 records (per Wyden’s letter). What’s more, there are plenty of security concerns to think about, given that Western Union and Maxitransfer were required to provide records not directly to law enforcement, but to TRAC — an entity not subject to Federal oversight. To make matters still worse, HSI Phoenix itself acted without appropriate oversight from HSI headquarters and did not conduct proper DHS legal and privacy reviews. All told, the rogue subpoena program operated for two and half years, ceasing only after Wyden’s office requested a briefing last January.

Although DHS officials are claiming to be ignorant and innocent, they’re neither. The agency must be transparent and forthcoming with further investigations into both HSI Phoenix’s abusive conduct and headquarters’ extended toleration thereof (be it tacit or otherwise). DHS brass should be hounded by politicians and media alike, and firings should probably happen. Given its record, Homeland simply doesn’t deserve the benefit of the doubt on these matters — its agents have historically abused the authority of customs summonses, engaged in mission creep to spy on law-abiding citizens, and improperly gathered intelligence on adversarial journalists.

Our politicians have responded to Wyden’s allegations with radio, television, and Twitter silence. In many ways, this general apathy is counterintuitive, as there is significant political incentive for vigorous opposition to HSI’s abuses across the political spectrum. Most Americans may not understand the extent of Federal spying, but they also don’t want to live under a lawless, unaccountable government. A widespread, concerted effort from elected officials to uncover, publicize, and eliminate unlawful surveillance methods would be met with a great deal of popular support. The lack of such an effort speaks to a bipartisan lack of foresight and leadership in Washington.

Eventually the citizenry must step in and inform their subordinates (the politicians and bureaucrats) that the status quo is unacceptable. But first, Americans have to become aware of just how much Washington is spying on us. Anybody can be targeted by a rogue agent or office. And although the Feds’ abuses often consist of dry legal subpoenas and endless data queries — probably not the activities Americans most readily associate with “spying” — they are nonetheless insidious violations of our rights.

Each new exposition of misconduct brings us a little closer to real change. Keep sounding the alarm, Senator Wyden.

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