Post-9/11 privacy and secrecy: A report card

By Declan McCullagh and Anne Broache
Staff Writer, CNET News.com

Published: September 8, 2006, 4:00 AM PDT

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This is the second in a two-part series that looks back at the five years since Sept. 11, 2001. The first installment, published on Thursday, reviews the government's mixed record using technology against terrorism.

news analysis In January, the U.S. government convened a public meeting at the Marriott Hotel in Dulles, Va. The purpose was to ask area residents, business owners and pilots what they thought about airspace security restrictions near the nation's capital.

High Impact

What's new:

The federal government is concealing more information about its own activities, while engaging in more surveillance of Americans' private lives.

Bottom line:

Some say the shift reflects a loss of individual freedoms, while others defend the programs as necessary in time of war.

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The extensive and complicated restrictions--imposed after the Sept. 11, 2001, terrorist attacks, supposedly as a temporary measure--drew an overwhelmingly negative response. Lt. Cmdr. Tom Bush, for instance, a U.S. Navy F-18 Hornet pilot who also flies a small general aviation plane, dubbed them simply irrational.

Soon afterward, the Defense Department's North American Aerospace Defense Command abruptly demanded that the meeting's transcript be yanked from a government Web site--a move that some attendees attributed to the harsh public criticism. After CNET News.com reported on the deletion in March, the transcript was restored.

That incident highlights what has become an unmistakable trend in the five years since the attacks on the World Trade Center and the Pentagon: The federal government is concealing more information about its own activities, while engaging in more surveillance of Americans' private lives.

"Controls on information are growing significantly, and official efforts to exploit personal data are also on the rise," said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, or FAS.

The change has been dramatic. In the 1997 fiscal year, the federal government spent $3.4 billion on securing classified information, a figure that rose to $7.7 billion for 2005. Similarly, the government declassified 204 million pages of documents in 1997 but a mere 29.6 million in 2005. (Those numbers come from calculations by OpenTheGovernment.org, an umbrella group that includes FAS, the Reporters Committee for Freedom of the Press, the Electronic Frontier Foundation, and the Society of Professional Journalists.)

At the same time, surveillance of Americans by the federal government has steadily increased. President Bush has acknowledged bypassing the checks and balances of the courts when enlisting the National Security Agency in an extensive surveillance program. Congress is discussing whether to rewrite that law.

A lawsuit pending in San Francisco has yielded allegations of far more extensive NSA surveillance. Former AT&T employee Mark Klein released documents alleging the company spliced its fiber optic cables and ran a duplicate set for the NSA to Room 641A at its 611 Folsom St. building in San Francisco. Redacted documents show that AT&T has tried to offer benign reasons for the existence of such a room. (AT&T refuses to comment.)

The Bush administration has been especially secretive about the extent of the NSA program and how it works. But even the far smaller number of known wiretaps performed under court order has grown since 2001, government statistics show. Not only has eavesdropping on criminal activities increased, but Internet and telephone wiretaps performed under the Foreign Intelligence Surveillance Act have roughly doubled from 2001 to 2005.

That has happened as executive branch agencies have become far more resistant to Freedom of Information Act requests. "The very fabric of our democracy is undergoing a kind of a mutation, in which access to information is no longer a given," said FAS's Aftergood. "It's something that you increasingly have to struggle for or make a conscious effort to obtain."

In addition, new justifications for not releasing unclassified government documents to the public are proliferating. In the last few years, especially, terms like "For Official Use Only," "Controlled But Unclassified," "DEA Sensitive," "Confidential Business Information" have appeared on more and more documents--even though, in almost all cases, there's no legal justification for them.

"Such unchecked secrecy threatens accountability in governments and promotes conflicts of interest by allowing those with an interest in disclosure or concealment to decide between openness or secrecy," a recent report by OpenTheGovernment.org states.

In addition, some expansions of government secrecy--perhaps including NORAD's deletion of the transcript--appear to be driven by fear of public criticism. In 2003, the U.S. Army surreptitiously pulled the plug on one of its more popular Web sites after a report embarrassing to the military appeared on it. In another example, the names of the members of the Defense Science Board--an obscure but influential advisory body that influences military policy and had a budget of $3.6 million a year--have vanished from the group's public Web site.

That also happened in 2002 when the Defense Department tried to quell public concern about the now-defunct Total Information Awareness project by deleting files from the Web.

First, biographical information about TIA project leaders, including retired Adm. John Poindexter, disappeared. Then the TIA site shrank even more, with the slogan and logo for the TIA project--a Masonic pyramid that eyeballs the globe--vanishing, a highly unusual move for any government agency. Finally, a few weeks later, a diagram that explained the TIA project was erased.

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