The FBI has a lead. A prominent religious leader and community advocate is in contact with a suspected sleeper agent of foreign radicals. The attorney general is briefed and personally approves wiretaps of his home and offices. The man was born in the United States, the son of a popular cleric. Even though he’s an American citizen, he’s placed on a watchlist to be summarily detained in the event of a national emergency. Of all similar suspects, the head of FBI domestic intelligence thinks he’s “the most dangerous,” at least “from the standpoint of … national security.”
Is this a lone wolf in league with foreign sponsors of terrorism? No: This was the life of Martin Luther King Jr. That FBI assessment was dated Aug. 30, 1963—two days after King told our country that he had a dream.
We now find ourselves in a new surveillance debate—and the lessons of the King scandal should weigh heavy on our minds. A few months after the first Edward Snowden revelation, the National Security Agency disclosed that it had itself wiretapped King in the late 1960s. Yet what happened to King is almost entirely absent from our current conversation. In NSA reform debates in the House of Representatives, King was mentioned only a handful of times, usually in passing. And notwithstanding a few brave speeches by senators such as Patrick Leahy and Rand Paul outside of the Senate, the available Senate record suggests that in two years of actual hearings and floor debates, no one ever spoke his name.
There is a myth in this country that in a world where everyone is watched, everyone is watched equally. It’s as if an old and racist J. Edgar Hoover has been replaced by the race-blind magic of computers, mathematicians, and Big Data. The truth is more uncomfortable. Across our history and to this day, people of color have been the disproportionate victims of unjust surveillance; Hoover was no aberration. And while racism has played its ugly part, the justification for this monitoring was the same we hear today: national security.
The FBI’s violations against King were undeniably tinged by what historian David Garrow has called “an organizational culture of like-minded white men.” But as Garrow and others have shown, the FBI’s initial wiretap requests—and then–Attorney General Robert Kennedy’s approval of them—were driven by a suspected tie between King and the Communist Party. It wasn’t just King; Cesar Chavez, the labor and civil rights leader, was tracked for years as a result of vague, confidential tips about “a communist background,” as were many others.
Many people know that during World War II, innocent Americans of Japanese descent were surveilled and detained in internment camps. Fewer people know that in the wake of World War I, President Woodrow Wilson openly feared that black servicemen returning from Europe would become “the greatest medium in conveying Bolshevism to America.” Around the same time, the Military Intelligence Division created a special “Negro Subversion” section devoted to spying on black Americans. Near the top of its list was W.E.B. DuBois, a “rank Socialist” whom they tracked in Paris for fear he would “attempt to introduce socialist tendencies at the Peace Conference.”
This pattern is not limited to the past. For years after Sept. 11, the New York Police Department—with significant help from the CIA—monitored bookstores, restaurants, and nightclubs in Muslim neighborhoods and placed informants, known as “mosque crawlers,” in places of worship, where they reported on sermons and recorded the license plates of innocent congregants. (The program was notoriously ineffective, and the NYPD settled two lawsuits over this conduct earlier this month.) Other reports show that the Department of Homeland Security—an agency founded to protect against terror attacks—has been tracking Black Lives Matter activists. If you name a prominent civil rights leader of the 20th or 21st centuries, chances are strong that he or she was surveilled in the name of national security.
Every day, we hear about the power and promise of pervasive surveillance. We are losing sight of its victims. Instead, an NSA debate that could have surfaced a long line of black, Latino, Asian, and Muslim victims of surveillance was cast as an argument between the U.S. military and Snowden—national security versus the hackers.
This narrow focus may have blinded Congress to a little known but especially troubling aspect of the NSA scandal. In June 2013, the headlines were that the NSA was logging everyone’s phone calls. We now know that the NSA’s call records program—the single largest domestic spying program in our nation’s history—was effectively beta-tested for almost a decade on American immigrants.
In 1992, the Drug Enforcement Administration began a call records program that’s considered the blueprint for the NSA’s program, which began after Sept. 11 and received court approval in 2006. The DEA program logged virtually all calls made from the United States to a list of countries, regardless of who made them or why. Over time, 116 countries were added to that list—including Mexico and most of Central and South America. This means that for almost a decade before the NSA call records program, countless immigrants’ calls were tracked by the DEA when they called home. This is particularly true for Hispanic immigrants, who make up a large part of what is now the largest minority group in the country. We do not know what transpired in Congress’ closed-door discussions about the NSA or DEA call records programs, but public debates largely ignored these facts.
The next NSA debate will peak at the end of 2017. That’s the expiration date of another surveillance law that allows the government to read—without a warrant—certain messages stored on companies’ U.S. servers where at least one party to the communication was a foreigner living abroad. Will Congress probe the likely disparate impact of this law? If not, when will Congress reckon with the color of surveillance?
Today’s surveillance debate concerns encryption. Led by FBI Director James Comey, leaders in law enforcement are calling for technology companies to build “backdoors” into their products to let government investigators read—or listen—to otherwise inaccessible encrypted communications.
Comey is no J. Edgar Hoover. He requires that all new FBI agents visit King’s memorial site in Washington and study the agency’s treatment of King. As a personal reminder, he keeps on his desk a copy of the original FBI request to wiretap King.
But wiretaps were only the beginning of the government’s violations against King—or the broader civil rights movement. The FBI used information gleaned from taps and secret listening devices to smear King to the press and potential funders, and to engage in repugnant, sexual blackmail. And government surveillance went far beyond King. It extended to Chavez, Fannie Lou Hamer, and Whitney Young of the National Urban League. It extended to their forefathers, DuBois, Marcus Garvey, and countless others who knew that the government was watching—and listening—waiting for them to make a mistake.
“The arc of the moral universe is long, but it bends towards justice,” said King. What would that arc have looked like if every time he picked up the phone, he knew that he was beyond the government’s reach? What would it have looked like if he and every other civil rights activist had had access to unbreakable, encrypted communications? How much more sharply would that arc have bent toward justice?
On April 8, 2016, Georgetown Law and the Center on Privacy & Technology will hold a conference titled “The Color of Surveillance: Government Monitoring of the African American Community.”