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By Matt Trimpert
The 2000s and 2010s saw a perpetual and seemingly never ending expansion of state power. Whether it be repeated wars in the Middle East, the proliferation of drone technology, or the revelations Edward Snowden revealed about the National Security Agency’s activity, one is reminded of the famous quote by Founding Father James Madison.
“The means of defense against foreign danger historically have become the instruments of tyranny at home.”
Indeed, under section 215 of the Patriot Act, the FBI can force businesses to turn over any “tangible things” as long as the government agency demonstrates to the Foreign Intelligence Surveillance Court that the seizure is “relevant” to an international terrorism or clandestine investigation.
And, according to the Wall Street Journal, in the mid-2000s, FISC secretly accepted that collecting phone records of every American and storing them in a database is reasonably relevant for the potential future use of combating international terrorism.
The FISC judiciary system is a kangaroo court where the government is given a blank check to do as it pleases in secret. The court consists of eleven district court judges appointed by the Chief Justice of the Supreme Court. In the event of a surveillance request, a warrant application is assigned to one of the judges to be the sole arbiter on whether or not permission is granted.
If the request is denied, the government can appeal to a panel of three judges. Since the inception of the Foreign Intelligence Surveillance Act in 1979, almost 34,000 warrant applications have been approved, while only a marginal 11 have been denied. These astronomical odds were apparently not good enough.
The Foreign Intelligence Surveillance Act was amended in 2008 to allow the government to bypass the FISA court system and just garner approval from the attorney general and the director of national intelligence as long as “minimization requirements” are met.
One of these minimization guidelines allows the NSA to “retain and make use of ‘inadvertently acquired’ domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.”
Many legal experts, such as Rep. Jerrold Nadler, an attorney and member of the House Judiciary Committee, believe the NSA has used this provision to internally justify the collection and storage of phone data of every American.
The assertion is, because the NSA indiscriminately collects this data, and is not easily able to determine whether or not phone information originates from a foreign or domestic source, they are not targeting domestic persons and thus are obtaining the information “inadvertently.”
Edward Snowden exposed this classified practice as the program PRISM where phone metadata is collected along with video data, emails, documents, pictures, and credit card purchases from companies such as Facebook, AOL, and Yahoo on a massive scale. This enables the government to form a web-like map of any individual’s associates where past affiliations could be used as politically motivated ammunition.
As if this was not alarming enough, CNET revealed that the NSA is not only collecting and storing metadata, but the actual content of individual’s phone calls and emails. This is done under the NSA’s vastly under-reported program, NUCLEON, where telephone calls are intercepted and the spoken words are routed to a database.
It is unclear on what scale this is performed as intelligence officials have refused to offer an estimate of the number of Americans whose information has been stored on a content database.
Nevertheless, actions taken by the NSA and approved by the FISA court are clearly unconstitutional. The Fourth Amendment states that, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” and further “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
According to the Wall Street Journal’s Andy Barnett, the right of the people to be secure in their “papers” and “effects” guarantees “informational privacy.” Barnett further points out that cell phone company contracts with consumers do not permit data sharing with the government.
Probable cause should be used as the standard for the NSA to override consumers’ contractual agreement with their cell phone providers, as well as obtain any other information from American citizens. Section 215 of the Patriot Act, PRISM, NUCLEON, and other aforementioned practices of the intelligence apparatus are a clear threat to liberty.
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Updated by Joseph Simnett
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