Driving while Brown on America's Imperial Infobahn

Last week while hunting for whistle-blower Edward Snowden, the United States government managed to get five European nations to assist in reminding the nations of the global South of their lesser status as peoples. The U.S. inspired violations by France, Italy, Spain, Portugal and Austria of international law while checking the President of Bolivia's aircraft for a wanted man like it was the trunk of a car pulled over on a highway in rural South Carolina.

Snowden's revelations in the Guardian have indelibly proven that the government spy agencies are privy to American's every written and spoken word transmitted via phone, email and social media. While a compliant American press has focused on the superficial appearance of Snowden’s girlfriend, or whether or not his whistle-blowing constitutes treason, scant attention has been paid to the actual facts or their implications. Less attention has been paid to the beginnings of a democratic push-back in this country, and to lawsuits recently launched or advanced to stop the wholesale spying on American citizens.

Some attention has been paid to the implications for those children of lesser Gods who live in first world Europe. The American press has almost complete ignored revelations about NSA spying for American corporations in what is often chauvinistically referred to as America's backyard. The fact that this spying was not done in the name of counter-terrorism, but merely for corporate advantage was missed. What also has not been reported is legalized spying for American energy corporations that may lead to the murder of dozens or hundreds at the hands of corporate sponsored death squads.

Glenn Greenwald took a detour from covering the nuances of NSA spying on Americans earlier this week to reveal that the NSA had been spying on cellular customers in Brazil, Argentina, Venezuela, Mexico and other Latin American nations. The revelations were published in O Globo, the leading newspaper in Brazil where he resides.

In the story, the NSA is accused of using its ties with American companies to partner with the Brazilian telecommunications industry to collect 2.3 billion phone calls originating in Brazil or made by Brazilian cellphone subscribers traveling overseas. The second most spied-on nation in South America was Columbia. NSA operations also focused on the oil industries of Venezuela and Mexico.

Although the President of Brazil was “concerned, even outraged,” and Brazil has launched congressional, regulatory and criminal investigations into the matter, the lone New York Times story quoted an opposition politician as saying "the good relations we have with the United States will not be interrupted." O Globo is the leading newspaper in Brazil and the 36th most visited website in the world according to Alexa.com. The New York Times ranks 136th on the same scale as of today.

Other Brazilian legislators were less amused. “National sovereignty requires drastic oversight of the unacceptable and invasive conduct on the part of the North American government,” House Deputy Ivan Valente said. “The streets should execrate and repudiate the 'police of the world' attitude of the United States."

The furor that has erupted across the continent has yet to produce a definitive shift in diplomatic policy as Latin American leaders have vowed to take their concerns to the UN and are planning various high level meetings to discuss the issue. The final form of these diplomatic shifts has yet to be seen, and has overshadowed the implications in a case of U.S. court ordered corporate spying on human rights activists and journalists in South America.

In 2011, an Ecuadorian court imposed a judgment of 18 billion dollars on Chevron for pollution caused by its oil operations in the Amazon. Rather than bow to the sovereignty of the court, Chevron sued the activists and their lawyers in federal court in New York claiming fraud. As part of the suit Chevron demanded the metadata from the email of over 50 people, including lawyers, journalists and human rights activists. Chevron claims it needs the information, including the IP address of every single email login for nine years, to prove a pattern of fraud against it. This fraud apparently consists of having the temerity to report on, protest and sue over environmental and human rights abuses.

The judge in the case, Lewis Kaplan, inserted himself into it by special designation to rule on the subpoena brought in the Northern District of New York from his seat in the Southern District. Torture supporting Kaplan previously gained notoriety as ruling that two years of interrogation in the CIA's black sites and five years extrajudicial detention did not interfere with a defendant’s right to speedy trial.

Judge Kaplan ruled that the subjects of the subpoena, who are not defendants in the case or plaintiffs in the original judgment, do not have First Amendment rights to speak and write about the case because they are not citizens. According to their counsel, Nate Cardozo, a staff attorney at the Electronic Frontier Foundation (EFF), “First of all we moved for reconsideration because it’s based on a mistake of fact, because at least one of our clients is a citizen. The judge never asked if our clients were citizens, he just assumed they were not, and was just plain wrong in that assumption.” Cardozo continued “As a more general matter the fact the judge brushed aside the first amendment as though it had no meaning online is simply wrong. The important thing to remember is that our clients are not defendants. They are third parties yet the court says they have no rights and under that logic no one has any rights.”

The ruling echoes a general attack on the rights of a free press as the subpoenaed parties are “Activists and bloggers and journalists and Chevron would rather them not speak publicly. These subpoenas are easily the most broad we've seen in a context like this. Why they want the information is beyond me. But it’s clear they issued the subpoenas to intimidate the targets.” according to Cardozo.

The ire of Chevron can be an intimidating thing. In 1998, Chevron was implicated in the death squad killings of two activist in Nigeria and the detention torture of others after residents complained that Chevron's environmental practices had destroyed their traditional subsistence base, much the same way they have in Ecuador. Chevron went so far as to loan a company helicopter for the operation. American courts have consistently backed the claims of Chevron as the plaintiffs are non-citizens.

The implications of the NSA corporate spying are not just constitutional questions for Americans to ponder through the “if you are doing nothing wrong you should have nothing to hide” lens. For non-citizens, even national presidents, the global surveillance state means stop and frisk, indefinite detention, torture, extrajudicial detention and potentially death squad murder for journalists and activists. While Obama claims he welcomes a national conversation about spying, while simultaneously keeping all relevant facts secret, the world is having a conversation about human rights, and the world is asserting that the limits of our humanity are not defined by citizenship.

The Free Press will follow both the response of South American governments and the EFF's planned appeal in future stories.