Sen. Lindsey Graham (R-SC) demanded to know why the FBI wasn’t tracking the Boston bombing suspect’s web traffic during an appearance on Fox News this morning, possibly validating civil liberties activist fears that the attack would lead to calls for further digital surveillance:
“If you Google terrorists you will find the older brother on the web, Youtube videos of him declaring war on us, saying we’re a Christian nation. We’re infidels. How could the FBI after the interview in 2011 not pick up that traffic where this guy is visiting radical web sites?“
The type of tracking Graham suggests the FBI should have been doing goes far beyond what the law allows in situations like Tamerlan Tsarnaev’s because when the FBI interviewed him in 2011, no evidence of foreign or domestic terror links was found. While the FBI has petitioned internet service providers (ISPs) to retain records retain records of consumers browsing histories for law enforcement purposes for years, there are technical barriers and a subpoena or warrant would be required for most types of data retained in such a system under current statute. In fact, for ISPs to keep logs of actual URLs of web sites visited by consumers, they would need to use deep packet inspection (DPI) — a method of data processing that examines packets sent across networks to determine how to process or reroute the information that can also be used to determine the content of web traffic. While it has legitimate network management uses, it has been abused by repressive regimes as a cost effective way to snoop on citizens and its use by ISPs to collect web traffic content information on all consumers would likely violate the Wiretap Act.
This is not the first time the tragedy in Boston has been used to question internet related national security practices. Rep. Mike McCaul (R-TX) then invoked the tragedy to argue for the passage of Cyber Intelligence Sharing and Protection Act of 2013 (CISPA), a controversial bill with privacy gaps many civil liberties organizations believe could lead to increased digital surveillance, saying the proposal would protect from Americans from “digital bombs.”
Activist group Demand Progress cited McCaul’s remark among a number of other concerns in a recent petition calling for the protection of civil liberties in the wake of the Boston tragedy. But activist groups aren’t alone in worrying about over reaching responses to this type of tragedy: A Washington Post poll released Monday showed 48 percent said they thought the government “will go too far” in compromising constitutional rights to investigate terrorism.
These fears may be rooted in the government reaction to the 9/11: The USA Patriot Act was passed forty-five days after the attack, giving law enforcement new authority to monitor phone and email communications, financial records, and track online activities in order to fight terrorism. However, many of the provisions have been used against American citizens in ordinary criminal complaints. Several provisions of the bill were extended for four more years in 2011.
The New York Times also revealed in 2005 that President Bush secretly authorized the National Security Agency (NSA) to eavesdrop on Americans and others inside country without court-approved warrants as part of anti-terrorist investigations shortly after 9/11. At least one former NSA analyst source claimed the NSA had “access to all Americans’ communications — faxes, phone calls, and their computer communications” and particularly targeted journalists for surveillance. Court cases challenging the legality of the original program and it’s Foreign Intelligence Security Act (FISA) based successor have as of yet been unsuccessful at getting a court to rule on the issue.
As to other claims made by Sen. Graham, ThinkProgress was unable to find any videos of Tamerlan Tsarnaev declaring war on America, although it appears he did start a Youtube account after his FBI interview and travels to Dagestan that featured playlists of extremist content. Sen. Graham has also called for younger brother Dzhokhar Tsarnaev to be tried as an “enemy combatant” despite that fact that he is a U.S. citizen, bypassing the normal judicial system.