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WASHINGTON, D.C. — Amid waves of criticism, the National Security Agency has expanded its black box of domestic surveillance. Effective immediately, the NSA will screen domestic emails for “culturally or racially insensitive material.”
According to sources and a press announcement by Attorney General Eric Holder, the NSA is now searching virtually every email that is sent in the entire continental U.S. for certain racially and culturally charged keywords or phrases. To accomplish this, the NSA reportedly is making a copy of nearly every email by culling data from the major internet service providers. It then searches that cloned data, keeping all of the emails containing certain keywords and deleting the rest – all in a matter of seconds.
If you emailed a friend, family member or colleague in the last several days, chances are that the NSA made a copy of that email and searched it for the new “sensitivity” keywords.
The White House issued a statement describing the purpose of the sensitivity keywords: “Cultural and racial insensitivity cause disruption, increase social discord and sometimes lead to violence. By searching for insensitive materials in cyberspace our intelligence community can stop the damage before it reaches the outside world.”
Cal-Berkeley Law Professor Sandra T. Rubino, an expert on Fourth Amendment issues, said that the searches may be warranted. “The Constitution is not a ‘suicide pact,’ so the government has to take reasonable measures to ferret out dangerous communications,” she said. “I think we all can agree that even private emails are no place for racial insensitivity.”
The Justice Department has not ruled out federal hate crime prosecutions based upon NSA data. “We use every available source of information to detect illegal activity,” said Attorney General Eric Holder at a press conference on Friday. “If people are sending private emails that say ‘black people love watermelons’ or ‘Asian men are not blessed in the pants area’ well, there is no place for that,” said Holder. “Eventually, all that hate makes it into the public sphere and can lead to violence.”
If you have to think about it, you’re better off not sending it.”
Holder also noted that the Justice Department will set formal guidelines as to what insensitive speech will be targeted. In the meantime, those that choose to email should be wary of emails that include “hateful stereotypes of dietary preferences, disproportionate dancing or musical talent, odd first names or lesser driving ability within any race or distinct ethnic group.”
The government claims that hate crime surveillance is authorized by a statute passed in 2008 that allows the government to target foreigners for surveillance. Although the government has frequently defended that law as a necessary tool in gathering foreign intelligence, the government has not fully informed the public about the extent to which the statute implicates Americans’ communications.
Some observers claim that expanding email surveillance to include insensitive speech is a disturbing harbinger of future surveillance. “Who is to decide what is ‘insensitive’ speech?” said Victor Kiam, the founder of Americans for Limited Government. “Is it hate speech if I email my friend and say that I find Indian women attractive but they smell funny when they sweat?” Kiam hastened to add that he does not think that Indian women smell, but used the comment as an example of “borderline” speech that will be stymied for fear of detection and prosecution.
Attorney General Holder might have an answer for civil libertarians such as Kiam. On Friday he told reporters: “If you have to think about it, you’re better off not sending it.”