Despite the “terrorism” justification, the new rules affect every single American.  The agency now has free rein to, as the New York Times’ Charlie Savage put it, “retrieve, store and search information about Americans gathered by government agencies for purposes other than national security threats ” and expands the amount of time the government can keep private information on innocent individuals by a factor of ten.

From the New York Times :

The guidelines will lengthen to five years — from 180 days — the amount of time the center can retain private information about Americans when there is no suspicion that they are tied to terrorism, intelligence officials said. The guidelines are also expected to result in the center making more copies of entire databases and “data mining them” using complex algorithms to search for patterns that could indicate a threat. (emphasis ours)

Journalist Marcy Wheeler summed the new guidelines up nicely saying, “So…the data the government keeps to track our travel, our taxes, our benefits, our identity? It just got transformed from bureaucratic data into national security intelligence.”

The administration claims that the changes in the rules for the NCTC—as well as for the Office of the Director of National Intelligence (DNI), which oversees the nation’s intelligence agencies—are in response to the government’s failure to connect the dots in the so-called “underwear bomber” case at the end of 2009, yet there was no explanation of how holding onto innocent Americans’ private data for five years would have stopped the bombing attempt.

Disturbingly, “oversight” for these expansive new guidelines is being directed by the DNI’s "Civil Liberties Protection Officer" Joel Alexander, who is so concerned about Americans’ privacy and civil liberties that he, as Marcy Wheeler notes, found no civil liberties concerns with the National Security Agency’s illegal warrantless wiretapping program when he reviewed it during President George W. Bush’s administration.

As other civil liberties organizations have noted, the new guidelines are reminiscent of the Orwellian-sounding “Total Information Awareness ” program George Bush tried but failed to get through Congress in 2003—again in the name of defending the nation from terrorists. The program, as the New York Times explained , sparked an “outcry” and partially shut down Congress because it “proposed fusing vast archives of electronic records — like travel records, credit card transactions, phone calls and more — and searching for patterns of a hidden terrorist cell.”

The New York Times reported , the new NCTC guidelines “are silent about the use of commercial data — like credit card and travel records — that may have been acquired by other agencies,” but information first obtained by private corporations has ended up in federal databases before. In one example, Wired Magazine found FBI databases contained “200 million records transferred from private data brokers like ChoicePoint, 55,000 entries on customers of Wyndham hotels, and numerous other travel and commercial records.” The FBI would be one of the agencies sharing intelligence with the NCTC.

Despite Congress’ utter rejection of the “Total Information Awareness” program (TIA) in 2003, this is the second time this month the administration has been accused of instituting the program piecemeal. In his detailed report on the NSA’s new “data center” in Utah, Wired Magazine’s James Bamford remarked that the new data storage complex is “the realization” of the TIA program, as it’s expected to store and catalog “all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches.”

Unfortunately, the new NCTC guidelines are yet another example of the government using the word “terrorism” to infringe on the rights of innocent Americans. Aside from the NSA’s aforementioned warrantless wiretapping program, we have seen the Patriot Act overwhelmingly used in criminal investigations not involving terrorism, despite its original stated purpose. As PBS Frontline’s Azmat Khan noted in response to the new guidelines, investigative journalist Dana Priest has previously reported how “many states have yet to use their vast and growing anti-terror apparatus to capture any terrorists; instead the government has built a massive database that collects, stores and analyzes information on thousands of U.S. citizens and residents, many of whom have not been accused of any wrongdoing.” 

This problem has been well documented for years, yet Congress and both the Bush and Obama administrations have continued to use terrorism as a justification for expansive laws, and Americans’ constitutional rights have become collateral damage. 

As we said last year, this deal is tilted against subscribers . That's not surprising, given that no one solicited subscriber input in advance. In fact, some online commenters have expressed concern that the agreement runs afoul of antitrust law .

One key problem is the arrangement shifts the burden of proof: rather than accusers proving infringement before the graduated response process starts against a subscriber, the subscriber must disprove the accusation in order to call a halt to it. Worse, accused subscribers have to defend themselves on an uneven playing field. For example, they have only ten days to prepare a defense, and with only six pre-set options available. Of course, there's no assurance that those who review the cases are neutral, and the plan sorely lacks consequences for an accuser who makes mistaken or fraudulent claims.

There are still more problems. The plan calls for "education" after the first accusations, but based on the information now available on the website launched last year by the Center for Copyright Information (the entity charged with administering the system), it's likely to be both deceptive and scare-mongering. And the whole system lacks in transparency: while it includes some minimal reporting requirements, those reports need not be made public. 

The final rub: subscribers will doubtless be paying for their own "re-education," as ISPs pass on their portions of the administration costs in the form of higher fees.

What can users do at this point? In some cases, they can vote with their feet. This agreement is voluntary for now, and while the participating ISPs include many major companies — AT&T, Verizon, Comcast, Cablevision, and Time Warner Cable — there are other options. Users lucky enough to have a choice of providers for their Internet service should consider switching to a service that opted not to "cooperate." For example, companies like Sonic and Cox Communications have a history of fighting for their users where they can, and are notably absent from this arrangement.

Otherwise, users have little choice for now but to watch their ISP roll out this new system against their interests, and maybe familiarize themselves with the six pre-approved responses available to them after an accusation. EFF will continue to follow developments in this agreement closely, and will be offering users a way to speak out against it soon. Stay tuned to updates about these actions on our EFFector mailing list , or by following EFF on Identi.ca or Twitter .