In the wake of COINTELPRO and the Watergate scandal, Supreme Court Justice William O. Douglas sent a letter to a group of young lawyers at the Washington State Bar Association. "As nightfall does not come all at once," he wrote, "neither does oppression. In both instances there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air - however slight - lest we become unwitting victims of the darkness."[1]

The recent dramatic expansion of intelligence collection at the federal, state and local level raises profound civil liberties concerns regarding freedoms and protections we have long taken for granted. If people generally appear unaware of "change in the air," a large part of the reason is the unparalleled resort to secrecy used by the government to keep its actions from public scrutiny. According to the new American Civil Liberties Union (ACLU) report, "Drastic Measures Required," under President Obama (who had vowed to create "an unprecedented level of openness in Government" when he first took office), there were no fewer than 76,795,945 decisions made to classify information in 2010 - eight times the number made in 2001. 

There are layers of secrecy that cannot even be penetrated by most members of Congress. In the recent debate over the re-authorization of three sections of the USA Patriot Act with sunset provisions, Sen. Ron Wyden (D-Oregon), who is a member of the Joint Intelligence Committee, declared in the Senate in May 2011 that there was a secret interpretation of Patriot Act powers that he could not even tell them about without disclosing classified information. [2] "When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry," said Wyden. The determination of the Obama administration to imitate its predecessor and maintain a wall of secrecy around anything that could be connected (however tenuously) with "national security" is evident in the zeal with which it has pursued whistleblowers and its use of the state secrets privilege in judicial proceedings, including in the recent court challenge to the FBI use of the informant Craig Monteilh to spy on mosques in Orange County, California.

During a decade of relentless fearmongering about the terrorist threat, most Americans appear to have accommodated themselves to the visible signs of change without questioning their broad implications.  If searches on the subway, body scans at the airport and a Special Operations military drill targeting a Boston neighborhood are presented as necessary to keep the nation safe, they are for them.

But what would they make of the largely invisible architecture of surveillance that treats everyone as a potential suspect? Anyone who has a bank account and makes a financial transaction, or uses a phone or a computer to send emails or browse web sites, or visits a library, books a rental car, or purchases a airline ticket is within the surveillance net. The profiles that have been compiled on individuals by commercial data brokers might well have found their way into government databases, errors and all. A database error at El Paso Intelligence Center was responsible for John and Martha King being detained at gunpoint when they flew a single-engine plane into Santa Barbara airport. The plane had been wrongly reported as stolen. Or government errors might be imported into commercial databases. Take the case of Tom Kubbany of Humboldt County, California.  He was denied a mortgage after a credit report flagged him as being on the Treasury Department's terrorism watch list. As far-fetched as it seems, he appears to have been so designated because his middle name, Hassan, matched an alias used by one of the sons of Saddam Hussein. 

In addition to the harms perpetrated by database mistakes, databases containing sensitive information have been improperly accessed for a range of purposes. Erroll Southers, a former FBI agent who had been nominated by the White House to head the Transportation Security Administration (TSA), admitted in a letter to key senators that he had committed a "grave error in judgment" when he accessed criminal records to get information about his estranged wife's new boyfriend and passed it on to the police. In Massachusetts, police across the state were discovered to have repeatedly tapped into the state's criminal records system to gather information on celebrities and high-profile citizens, such as actor Matt Damon, singer James Taylor and football star Tom Brady. Politicians make an irresistible target, including presidential candidates whose private passport files were peeked into in 2008 by private contractors working for the federal government.

Some people may feel that the risk of data being wrong or misused is still a price worth paying in these fearful times, and that, anyway, they have nothing to hide since they haven't done anything wrong. It is unlikely that eight-year-old Mikey Hicks has done anything to earn government suspicion, but he has endured extra screening at airports since he was a toddler. Babies have been kept from boarding planes. The late senator Edward Kennedy, Rep. John Lewis (D-Georgia) and people with the names Robert Johnson and Gary Smith have struggled to get off terrorism watch lists. Former US assistant attorney general Jim Robinson - once the Justice Department's chief criminal prosecutor - has been delayed and interrogated at airports despite holding top secret security clearance. Former Marines with honorable discharges are also among those who are on the "no-fly" list and are not permitted to board planes.

We don't know much about the process used to add people to watch lists, or about what constitutes a "credible tip." We do know that the use of data mining to assemble a chain of associations and digital linkages could have serious consequences for anyone flagged by an algorithm primed to detect suspicious behavior.

In November 2006, the Federal Register disclosed the existence of the Automated Targeting System, which relies on a 5.3 billion-record government database to assign a numerical "terrorism risk rating" to each traveler who leaves and enters the US by air, train or land - the higher the score, the higher the risk.

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