It's not a conspiracy. It's a bureaucracy.
 
 
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AMERICAN SURVEILLANCE will be a three part documentary series asking whether we are sacrificing too many of our constitutional rights and traditional American values in the mission to protect public security? As the government expands its secret travel-based surveillance of average citizens beyond the airport, rating them for their 'threat' to national security; individuals are fighting back in the courts, congress and sometimes within agencies themselves. At stake is whether American constitutional protections and even traditional legal concepts like "innocent until proven guilty" and due process will survive in Post 9/11 America. 

Featuring over 15 exclusive interviews with former national security officials, privacy advocates and regular citizens who, despite being completely innocent, were targeted up by the National Security bureaucracy.

It could happen to you

Steve Bierfeldt sued the TSA after being illegally detained.

Today in America, you could be taking a photograph of a beautiful bridge. If someone doesn’t like the way you look, they can call in your suspicious activity to the police. That report can pass from the police to a Fusion Center, a high tech information swapping center established to smooth information sharing between local, state and federal police and intelligence authorities.  The report could be further disseminated to all 72 Fusion Centers across the United States, which would automatically place it in the files of the Director of National Intelligence and the FBI. No body is sure how long it would stay in the DNI’s files, but it would remain in the FBI’s databases forever. While it is stored in these databases, the information in the files and other information about you could be shared with other agencies operating in the War on Terror, the War on Drugs or even Human trafficking investigations. It could be run against algorithms which the 200 + agencies use to determine whether you may be a suspicious person.  At every step, you will have no opportunity to dispute the information, to confront your accuser or to have the information independently judged by a jury of your peers or even a judge basic rights guaranteed to every American by our constitution.

Most of the time you won’t even know.

Stripping away these rights has already become more than a theoretical exercise.  This episode will look at 3 cases in which completely innocent people were targeted by the government or harassed by agents abusing their authority.  In the Bierfeldt case, an airline passenger was illegally detained by the TSA. When he simply and politely asked whether he was required to answer the TSA agent’s questions, he found himself in a “room the size of a bathroom” being harangued for half -an-hour by up to 6 TSA agents and local Missouri police. Their reason?  They wanted to know why he had $4700 in cash and checks in a church cashbox, which he had willingly placed on the luggage conveyor belt for x-ray.  It was only the intervention of a superior that kept him from being arrested and taken to local police headquarters for further questioning. But that is not the most chilling part of the case. 

Bierfeldt freely admits that he was hesitant to cooperate with their questioning. Because at the time he was a ad hoc treasurer for Congressman Ron Paul’s Campaign for Liberty.  And a report compiled by Missouri’s Fusion Center had recently identified people in that organization along with people who talked about the constitution a lot as potential militia members aka domestic terrorists. We may not agree with Ron Paul and may even find some of his notions to be crackpot ideas, but when the state issues a report calling followers of those ideas potential criminals, then the state has gone too far.

But this was not a public report. It was a secret report. The only reason Bierfeldt knew about it was because someone had leaked it on WIKILEAKS five weeks before his encounter with the TSA and Missouri police.

Simple retribution was at the heart of Stacey Armato’s ordeal. While flying through Phoenix’s Sky Harbor Airport, she asked the TSA team not to x ray her breast milk and instead use an alternate screening. That team either did not know what the procedure was or didn’t want to take a little extra time to follow the agency’s rules.  Their delays made her miss her flight and she complained.  The next week, she was flying and encountered the same team — a rarity.  When Ms. Armato reached for a print out of the rules, which is what the TSA customer support team had told her to do, her hand was swatted away and she was led to a plexiglass cell in the middle of the checkpoint where a succession of cops advised her to play ball with the TSA. Armato stuck to her guns and complained again.  Even a third time with a TSA undercover agent slightly behind her in line, the agents at the gate balked at following their own rules.  And this is hardly a rarity. People wishing to film their family members being patted down have been threatened with ejection from the airport and worse.

Two years later when she had a second child nothing had changed, so Armato sued. Her ordeal at the hands of government lawyers was as trying as the detention in the plexiglass cell.

But these cases pale in comparison to the ordeal of Dr. Rahinah Ibrahim, the first person to sue and successfully force the government to remove her name from all of its watch lists.  While reading this it should be remembered that the United States government freely admitted at her trial that she poses no threat and never posed any threat to the United States or US aircraft. While attempting to board a flight to Hawaii, Dr Ibrahim was mistakenly arrested in front of her 14 year old daughter for being on the No-Fly-List.  That morning, a representative of the Department of Homeland Security told her it was a mistake, that she was not on the No-Fly-List.  She continued on eventually to her native Malaysia where she intended to finish her Stanford University thesis.  But when she realized this was difficult to do from half way around the world, she spent her savings on a ticket back to the US.  But she never made that flight. At the Koala Lumpur airport she was told by Malaysian airline personnel that there was a note by her name to call police and have her arrested. With the help of Stanford alumnus’s firm, Dr. Ibrahim began an arduous legal quest to clear her name from the government’s shadowy system of anti-terror databases.  When the trial reached a US court eight years later, she still was not allowed to come to the US to work with her attorneys or attend her own trial. There were many other oddities, but at the end, the government lost and the judge ordered them to strike any reference to her from all of its databases and if there was information left in a file, it was to be tagged with a warning that it was unreliable information and could not be used for any judgement by the government about her. 

Her attorneys were named California Lawyer Magazine’s lawyers of the year.  The verdict probably encouraged a second judge to come to a similar ruling in a case brought by the ACLU in Oregon.  In that case, the judge declared the No Fly List unconstitutional.  But so far all of Dr Ibrahim’s visa requests to return to the United States have been denied for unspecified secret reasons.

As it wraps up, asking poignantly what is happening to the rule of law in America, and whether the benefits are worth sacrificing constitutional protections, the first episode will set the stage for Episodes 2 and 3 which will cover THE LISTS and FIGHTING BACK and SECURITY THAT WORKS respectively.

 

Exclusive Interviews for the Episode include:

Steven Bierfeldt, passenger, passenger who sued the TSA and Department of Homeland Security

Jay Stanley, ACLU

Stacey Armato, passenger who sued TSA

Elizabeth Pipkin, lawyer for Dr Rahinah Ibrahim

Christine Peak, lawyer for Dr. Rahinah Ibrahim

James McManis, Partner McManis & Faulkner, the firm which worked for Dr Ibrahim pro bono

Dr. Rahinah Ibrahim, passenger who sued the government to remove her name from its watchlists

Bruce Schneier, Airline Security Expert

Ed Hasbrouck, Privacy Expert

 

 
 

Kip Hawley is a former Administrator of TSA

 

THE LISTS

Ironically, in the years after 9/11, the American public was more skeptical of government programs that would invade our privacy than the public of today.  In 2003/4 the TSA set out to use publicly sourced data to run algorithms on in order to predict who might be a potential terrorist.  The program called CAPPS II was a disaster leading ultimately to widespread public protest and even congressional action that appeared to block information gathering.

You would expect that Jay Stanley of the ACLU would voice concerns about the data gathering as would other rights advocates like Ginger McCall of the Electronic Privacy Information Center.  But Kip Hawley, a former administrator of TSA and arguably the architect of the agency isn’t a fan of programs like CAPPS II or even its successor PreCheck. Former TSA executive Stephanie Rowe is also openly skeptical that such programs can even work. Ms. Rowe redesigned the checkpoints after 9/11 and served at TSA until the end of the Bush administration. 

The first Chief Privacy Officer of the Department of Homeland Security, Mary Ellen Callahan openly opposed broader sharing of personal data during the Obama administration, but the scare of the underwear bomber overruled calmer voices and data collected from ordinary citizens was now stored in files for testing of algorithms for potential terrorists, drug runners and human traffickers. Callahan argued that this was a sea change in how the government treated its citizens and undercut the basic American legal principle of presumed innocence. Now we would all be presumed potentially guilty, subject to the same analysis of our private data as known criminals and terrorist allies.

John Mueller, an analyst who has studied every terrorist prosecution between 2011 and 2012 has spent years examining every terrorist prosecution for plots against the US. He reminds us how the threat is exaggerated.  Mike German a privacy advocate and former FBI counter terrorism expert and Mueller relate how the fascination with expanding lists increase the likelihood of missing some of the bad guys because the information coming in from NSA taps and Fusion Center suspicious activity reports is largely unreliable. But all of it must be followed up; taking away valuable time and resources from watching the most likely bad guys. Incidents including the Underwear Bomber, the Mumbai massacre and the Boston Marathon bombing were all committed by known potential terrorists on the lists. But authorities were busy chasing down other leads.

Jay Stanley of the ACLU points out that the places where these lists are being employed are expanding as all of the invasive techniques deployed at airports are now spreading to train stations and sports and political events.  You Tube videos taken by citizens show that all Americans may be stopped and asked to prove their citizenship anywhere within 100 miles of the border by Customs and Border Protection personnel. This can even happen if you are on a road that doesn’t cross the border.

Does this hurt us though? Aren’t we better off safe rather than sorry. Ed Hasbrouck of The Identity Project and Pro Pubblica reporter Julia Angwin recall that the regimes which our grandparents and parents fled were authoritarian societies that practiced these methods.  And Hasbrouck in particular recounts that it has happened here - more than once.

The lawyers who tried the Ibrahim case point out chillingly that the only reason for a list is to know who to round up when the time comes.

This episode’s rap up teases the final episode of the series.  Fighting Back and Security That Works.

 

Exclusive Interviews include:

Kip Hawley, Former Administrator TSA

Stephanie Rowe, Former Director of Innovation, TSA

Mary Ellen Callahan, Former Chief Privacy Officer, Department of Homeland Security

Mike German, Privacy Advocate and Former FBI Counter Terrorism Expert

Jay Stanley, ACLU

Ginger McCall, Electronic Privacy Information Center

John Mueller, Terrorism Expert

 

 
 

Fighting back,  security That Works and Fixing what doesn't

I don’t want what happened to me to happen to anybody else.
— Dr. Rahinah Ibrahim
 
 

Elizabeth Pipkin and Christine Peak won the first verdict forcing the government to expunge their client's name from its watchlists.

 
 

One of the common denominators of the cases profiled in Episode 1 is that they all resulted in lawsuits.  It’s arguable that in every case, the success of the cases has been undercut by a general tendency to ignore their agreements by the agencies charged with defending America against the terrorists.  Bierfeldt recounts that he had been contacted by people who’d been illegally asked about money they were carrying well after his case resulted in TSA re-training people in the limits of their powers of search. A viral video taken in the baggage claim area of LAX shows TSA hassling a traveller to ask him how much money he was carrying.

Mike German, a privacy advocate and Steve Lord of Government Accountability Office recount how proof of racial profiling in a controversial terrorist spotting program has resulted not in closing the program but instead doubling down on the program by expanding its uses to include catching drug couriers.

CAPPS II which was suspended by an act of congress actually made a comeback in 2013. It turns out that congress included a loophole specifying that the agency could resume using publicly collected data once they showed that there were privacy safeguards in place to protect the data.

Even the notoriously unpopular patdowns, which were loudly railed by the public in 2012 have made a brief reappearance in 2017 under the Trump administration. A video featuring part time CNN contributor Angela Rye went viral early in the year.

Scanners were banned from airports after a successful campaign in congress led by Electronic Privacy Information Center. But Ginger McCall recounts that they have reappeared in port security facilities and more chillingly at border checkpoints and street security vans that patrol major public events.

In a visualization, we will look at the powerful forces controlled through the Department of Homeland Security and map out the zones where even law abiding Americans can be stopped and searched without any probable cause.  And we will remind the audience how badly some of those encounters can turn out for law abiding citizens, who did nothing wrong except anger the official.

Meanwhile Bruce Schneier and Kip Hawley who squared off in a famous Economist magazine debate “Do We Need the TSA?” actually agree that the best security works before anyone gets to the airport. The case of the liquid bomber plot illustrates this perfectly.  British authorities using good old fashioned detective work arrested the team planning to use liquid based bombs at their homes.  But there was no way to know if this was a solo plot or one of many missions as happened on 9/11. Coordination between the British and TSA actually rolled out the liquid ban in more than 450 airports in a matter of hours. one of the most impressive feats of securing the public to date.

In a final summation, the experts will weigh in on the need to do something — even when we think we can’t win. The key is congress and to some degree the White House.

This is more of a tradition in America than we are led to believe. Key decisions against the government have been reached even at the height of Cold War hysteria.  The Supreme Court established the right to fly in the 1950’s handing a loss to the government effort led by John Foster Dulles, a powerful Secretary of State then regarded as one of the most powerful men in the world. In both the Ibrahim case and the subsequent Oregon case, the courts ruled against the government and the No-Fly-List. It is possible, but as Christine Peak, one of the lawyers for Rahinah Ibrahim recounts, “You’ve got to fight” (for your rights.)

Because as Jay Stanley of ACLU chillingly observes once we give up our rights, it’s hard to get them back.

 

Exclusive Interviews include:

Steven Bierfeldt, passenger who sued the TSA and Department of Homeland Security

Jay Stanley, ACLU

Bruce Schneier, Airline Security Expert

Stacey Armato, passenger who sued TSA

Elizabeth Pipkin, lawyer for Dr Rahinah Ibrahim, who sued and forced the Government to remove her name from its watchlists

Christine Peak, lawyer for Dr. Rahinah Ibrahim, who sued and forced the Government to remove her name from its watchlists

James McManis, Partner McManis & Faulkner, firm which worked for Dr Ibrahim pro bono

Kip Hawley, Former Administrator TSA

Stephanie Rowe, Former Director of Innovation, TSA

Mike German, Privacy Advocate and Former FBI Counter Terrorism Expert

Ginger McCall, Electronic Privacy Information Center

John Mueller, Terrorism Expert

Ed Hasbrouck, Privacy Expert

 
 
 
 

The Team

Michael Jacobs is a veteran of film and online media with a reputation for developing pioneering content. His internet work, funded by online giants, AOL and Softbank has been recognized by Entertainment Weekly magazine and DEMO, the premier American showcase event for emerging technologies. Two of his films have opened in the Top 5 on Variety's Boxoffice charts. In 2009 he was awarded an Emmy for his work as a producer of the Peabody Award winning documentary, NANKING. 

Mr. Jacobs is author of the graphic novel MONKEY TRIAL, which is currently being developed as a feature with producer Gretchen Somerfeld (PUSH) at Radar Pictures. He serves as both a writer and executive  producer on the project.

He is currently producing and directing AMERICAN SURVEILLANCE.

 

CHRISTINA NEFERIS

Christina Neferis is a multifaceted filmmaker.  Her short documentary webisodic, LA Stories has profiled politicians, activists and rock stars.  Her recent credits include DONS '51 for ESPN and FEMME, which has garnered festival awards worldwide.  Other projects include and award winning campaign for SAVE THE CHILDREN and AT&T DAYBREAK.

She is currently producing and editing AMERICAN SURVEILLANCE.

Bio's here

 
 


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