Monday, February 14, 2011

Watch the Banks First

Frank Pasquale

I have not been a big fan of Wikileaks. I believe in diplomacy and the rule of law as cornerstones of a civilized society. But the recent revelations about a clandestine campaign to discredit Wikileaks supporters forces reconsideration of a pro-state, anti-Wikileaks position.

According to numerous press accounts, the DOJ advised Bank of America (BofA) to consult with a law firm that, in turn, consulted with "security firms" about how to address possible revelations from Wikileaks about BofA. A leaked report "suggested numerous ways to destroy WikiLeaks . . . including planting fake documents with the group and then attacking them when published; 'creat[ing] concern over the security' of the site; 'cyber attacks against the infrastructure to get data on document submitters.'"

If such actions were commissioned as part of a broad plan to protect national security, I could understand them. But what's truly astonishing here is that the government seems to be encouraging a megabank to engage in questionable surveillance and smear tactics, while itself lacking even basic modes of understanding what's going on in our "too big to fail" behemoths.

SEC Chair Mary Schapiro recently observed that "the technology for collecting data and surveilling our markets is often as much as two decades behind the technology currently used by those we regulate." James K. Galbraith has documented that, "after 9/11 500 FBI agents assigned to financial fraud were reassigned to counter–terrorism and (what is not understandable) they were never replaced." As the financial economy continues to grow and dwarf the real economy in size, it becomes a potential source not merely of “systemic risk,” but of far more profound disruptions. Nevertheless, high officials seem more committed to pursuing those who might expose those risks, rather than the risk-takers themselves.

This asymmetry is part of a larger trend toward punishing whistleblowers. Bradley Birkenfeld was imprisoned for uncovering massive tax evasion. British police have used tear gas against UK Uncut, a group trying to call attention to tax evasion by major corporations, and have classified an 85-year-old peace activist as a "domestic extremist." In a similar situation in Maryland, "some of the so-called terrorists were actually Catholic nuns."

As Danielle Citron and I have argued, there has to be some way of watching the watchers to deter civil liberties abuses. Leading law enforcement officials are also starting to agree. As noted in The Guardian recently,

Senior police officers complain that spies hired by commercial firms are – unlike their own agents – barely regulated. Sir Hugh Orde, the president of the Association of Chief Police Officers, which until recently ran the secretive national unit of undercover police officers deployed in protest groups, said in a speech last week that "the deployment by completely uncontrolled and unrestrained players in the private sector" constituted a "massive area of concern". . .

The environmental activists are angry that, by posing as a supporter, [a private sector spy] has gained access to emails and meetings where tactics and strategies are discussed. [An organizer] said: "It's frightening that in a meeting about how to stop the fossil fuel industry, the person sitting next to you might be a spy paid for by the energy giants themselves."

The question now for government is whether it prioritizes the protection of free association, or instead allows further unaccountable behavior from a shadowy private sector intelligence apparatus. Unmonitored drilling, tax evasion, and gambling is a greater threat to national security than the peaceful protesters who seek to call attention to these activities.

X-Posted at Concurring Opinions.

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