The events of 9/11 radically changed the way the US combats foreign threats such as terrorism. Ultimately, through Edward Snowden’s revelations, we’ve learned that the NSA is destroying privacy and Constitution protections. Faced with public opposition, politicians in D.C. responded with a “fix,” known as the USA Freedom Act. But to actually pass it through committee, it was amended to appease the intelligence committees in both the House and Senate, proving yet again that we cannot depend on federal fixes.
Appalled by the secret expansive interpretation of the Patriot Act he authored, Rep Jim Sensenbrenner, wrote the USA Freedom Act to address a number of overreaches, including backdoor searches.
What’s a back door? The NSA shifts through metadata from internet and phone providers using identifiers of individuals like phone numbers, IP addresses, email address, etc. Analysts then collect and store that information in their own databases without a warrant, without notifying an individual they are under suspicion of a crime. Internet and phone providers are then gagged from telling their customers that every bit of communications are being watched.
The original text to stop back doors in the USA Freedom Act read,
(2) CLARIFICATION ON PROHIBITION ON SEARCHING OF COLLECTIONS OF COMMUNICATIONS OF UNITED STATES PERSONS.—
(A) IN GENERAL.—Except as provided in subparagraph (B), no officer or employee of the United States may conduct a search of a collection of communications acquired under this section in an effort to find communications of a particular United States person (other than a corporation).
(B) CONCURRENT AUTHORIZATION AND EXCEPTION FOR EMERGENCY SITUATIONS.—
Subparagraph (A) shall not apply to a search for communications related to a particular United States person if—
(i) such United States person is the subject of an order or emergency authorization authorizing electronic surveillance or physical search under section 105, 304, 703, 704, or 705, or title 18, United States Code, for the effective period of that order;
(ii) the entity carrying out the search has a reasonable belief that the life or safety of such United States person is threatened and the information is sought for the purpose of assisting that person; or
(iii) such United States person has consented to the search.
The USA Freedom Act, unlike many other anti-spying bills Congress came up with, was supported by organizations like the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation (EFF), Downsize DC, and many others. It was the best of all the solutions.
But the problem with looking for solutions at the federal level is that the feds have no desire to limit federal power. The mindset seems to be if people think domestic spying is illegal, just rewrite the statute to make it legal! The USA Freedom Act was stalled in committee until it was amended to keep the back door searches and many other provisions in place. Or in other words it has been restructured to provide another “legal” framework to continue the dragnet spying.
The Managers Amendment reads,
The Attorney General, in consultation with the Director of National Intelligence, shall adopt minimization procedures that
(A) meet the definition of minimization procedures under section 1801 (h) of this title or section 1821 (4) of this title, as appropriate, for acquisitions authorized under subsection (a) ; and
(B) consistent with such definition, minimize the acquisition, and prohibit the retention and dissemination, of any communication as to which the sender and all intended recipients are determined to be located in the United States and prohibit the use of any discrete, non-target communication that is determined to be to or from a United States person or a person who appears to be located in the United States, except to protect against an immediate threat to human life.
As Jennifer Granick wrote in an article on justSecurity.org, this bill now does nothing it was planned to do.
“First, there is no prohibition on such searches. By deleting the original language, and against the backdrop of the Oct. 3, 2011 FISC decision, it would allow searches in an effort to find communications of a particular United States person.
Second, the minimization mandate contains a loophole allowing the use of the fruits of back door searches for foreign intelligence and law enforcement purposes. The Manager’s Amendment language prohibits the “use” of discrete communications of U.S. persons with non-targets. However, there are two limitations (1) “consistent with such definition” and (2) except to protect against an immediate threat to human life. Assuming we know what (2) means, let’s take a look at (1).”
This is just one of many of the things the Managers Amendment does that will continue the federal governments dragnet spying. Check out Marcie Wheeler’s article from emptywheel.net about call records, section 215, 702, and many other critiques on the USA Freedom Act and it’s newly amended language here.
The original USA Freedom Act was a great starting point to end dragnet spying. It was even supported by many civil liberties organizations. But, Congress doubled down instead of pursuing liberty.
So what now? You could wait for the Supreme Court to rule on NSA spying. Of course, the Supreme Court refused to even consider NDAA detention.
There is another solution that doesn’t involve D.C. Nullify at the local and state level instead.
Take action in your state in 3 different ways.
1. Introduce the 4th Amendment Protection Act. This act would ban a state from taking actions which provide “material support” or assistance to warrantless federal spying programs. This includes provisioning of resources, and banning the state from using data obtained without warrant in state court.
2. Introduce the Electronic Data Privacy Act. For those states where legislators are not yet willing or able to get the full 4th Amendment Protection Act passed, the Electronic Data Privacy Act is a powerful first step. By banning the use of warrantless data in court, this state legislation can thwart some of the practical effects of federal spying programs.
3. Introduce the Freedom From Location Surveillance Act. A narrow, but important first step against the growing surveillance state, the Freedom From Location Surveillance Act bans state and local law enforcement from obtaining the location information of a person’s electronic device without a warrant.
Click here to be directed to OffNow.org to see how you can stop aiding in your own surveillance.
Latest posts by Kelli Sladick (see all)
- Knowledge is Power: Cheat Sheet of Federal Surveillance Laws and Orders - October 9, 2014
- Jerry Brown Supports Surveillance without Warrant, Vetoes Bill Aimed at Drones - September 29, 2014
- The Constitution and Just War - September 10, 2014