Don’t Trust Congress to Protect the 4th Amendment

While there are indications that there are some positive provisions in the latest incarnation of the USA Freedom Act, it certainly wouldn’t end unconstitutional spying. There are also some troubling issues that make the proposed fixes potentially dangerous. Some analysts think the new version may have a massive loophole – something that even give supporters of the bill pause.

On top of that there is another bill lurking under the radar that could make things even worse for the majority of Americans who care about their privacy.

Taken together, these issues raise some serious questions about whether or not we should trust Congress to rein in the spy-state.

History

The year long revelations of Edward Snowden sparked a demand for government to stop dragnet spying. Major privacy advocates spent much time and effort drafting the USA Freedom Act. The original bill was gutted by Congressional Intelligence Committee members to protect the NSA rather than restrict it.

So the Senate stepped in, creating a new version of the legislation. Sen. Patrick Leahy’s bill was a compromise between Congressional Intelligence Committee members, the Obama Administration, and privacy advocates and organizations.

This raises an important question: if congressional members rewrote the bill to protect the NSA the first time, can we trust Congress to stop the NSA this time? Will a step towards protecting privacy take us 10 steps back with the new USA Freedom Act?

On July 30th, Harry Pohlman, a political analyst and guest writer for the Washington Post, tackled this very same subject. He pointed out,

“There is one crucial provision that the civil libertarians that support Leahy’s bill have overlooked. Namely, that the bill includes the same language contained in the House bill that created a “backdoor” authority to collect phone records that evade all the limitations just listed…the text “carves out” the government’s authority to obtain telephone metadata from its more general authority to obtain “tangible things” under the PATRIOT Act’s so-called business records provision. This matters because only phone records that fit within the specific language of the “carve out” are subject to the above restrictions on the government’s collection authority. Those restrictions apply only “in the case of an application for the production on a daily basis of call detail records created before, on, or after the date of the application relating to an authorized investigation . . . to protect against international terrorism.”

This means that if the government applies for a production order of phone records on a weekly basis, rather than on a “daily basis,” then it is falls outside the restrictions. If the application is for phone records created “before, on, [and] after” (instead of “or after”) the date of the application, ditto. If the investigation is not one of international terrorism, ditto.”

He continued comparing the House bill to the Senate Bill,

The Senate bill therefore has the House bill’s problem: both create two separate frameworks for the production of phone call detail records. Those that fit the “carve out” are subject to the restrictions on government’s collection authority mentioned above. Those that do not need only satisfy the more general requirements of the “business records” provision: the phone records would merely need to be “relevant” to “an authorized investigation,” with a “specific selection term” (however broad) used in the application.

More possible expansion to the surveillance state

But it is not just the hidden legal language that can expand domestic spying from the USA Freedom Act. There are also issues with sharing between the NSA and private corporations. Cyber Information Sharing Act (CISA) is a zombie bill that keeps rising from the dead with a new name. It’s former names have been CISPA and SOPA.

CISA requires that a company share cyber threat indicators through a DHS liason. This data will then be shared with many federal agencies. Cyber collateral damage is not minimized. Innocent people have no expectation of privacy under CISA because it doesn’t require minimization of identifying information, nor does it provide that incidental collection be inadmissible in a court. Identifying information of non-target people will be swept up alongside targeted people. Of note, if any consequence of sharing cyber threat information occurs, as long as the measure was acted out in good faith, it will not result in civil or criminal penalties for the company nor the government.

Summation

Time and time again, the federal government has turned the other way and even reinforced constitutional violations and covered up lies with lies. That leaves little room for faith that Congress will actually reform the surveillance state in a meaningful way. Consider the following “fixes.”

• The USA Freedom Act, if passed, will likely result in the expansion of dragnet spying while curbing few privacy violations.
• CISA, if passed, will protect spying and integrate the government through private corporations.
• Even after the President admitted that executive agencies used torture in complete violation of US laws and international laws, calls for CIA director John Brenner to step down have been ignored by the president.
• There is no investigation into CIA drone strikes even though assassinations are banned by Executive Order 12333.
• There is no indictment for James Clapper, the director of National Intelligence, after he lied to congress under oat when asked by Senator Ron Wydon, does, the NSA collect “any type of data at all on millions or hundreds of millions of Americans” He responded, “No, sir … not wittingly.”
• When Chelsea Manning leaked videos of journalists murdered by US forces, no investigation ever occurred for those crimes, or even an investigation to hiding a crime under a security classification.

Don’t Give Up

I believe that privacy advocates are doing everything they can at the federal level. I just don’t have faith in Congress to do the right thing. But there is something you can do! You can help stop resources from being used at the state level to aid in our surveillance. We need to continue our effort to push on with the OffNow campaign in the states.

Turn it off and shut them down!

Introduce model legislation like the 4th Amendment Protection Act, the Electronic Data Privacy Act, and the Freedom From Location Surveillance Act in your state. Visit OffNow.org for model legislation.