NSA Seizures: Papers, Effects, and the Constitution

Randy Barnett has an interesting op ed in the Wall Street Journal arguing that the NSA’s seizure of voluminous data on U.S. citizens was unconstitutional and that the approval of the seizure by the secret FISA court was also unconstitutional.

Randy makes several important points:

1. “By banning unreasonable “seizures” of a person’s “papers,” the Fourth Amendment clearly protects what we today call ‘informational privacy.’”

2. The FISA Court’s approval of the “blanket seizure of data on every American” represents “indiscriminate data seizures” that “are the epitome of ‘unreasonable,’ akin to the ‘general warrants’ issued by the Crown to authorize searches of Colonial Americans.”

3. The program’s approval by the FISA Court violates due process, because “secret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law.”

These are powerful arguments and the entire essay is well worth reading.  I am not entirely sure if Randy is using an originalist methodology here.  If he is, here are my thoughts regarding each of his three points.

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What Does Peggy Hill Have to Fear from the NSA?

I work nights.

On my “days” off, I used to switch to a daytime wake/sleep schedule in order to spend quality time with my family, but I no longer do.  In my old(er) age, I have discovered that the amount of time I render myself useless due to lack of sleep, plus the amount of time it takes me to get back into night-mode after a 3-day weekend is just too much to be worthwhile for anyone anymore.  Consequently, I spend a lot of time watching King of the Hill in the early morning hours while waiting until it is time to wake my daughter for school.

During a particularly funny re-run, I saw something that just happened to illustrate the problem with the NSA’s, and many American’s, reasoning, “if you’re not doing anything wrong, what’s your problem with us monitoring you?”

This episode of KOTH starts with Bobby (son) going camping with Hank (dad) and the guys for the weekend.  Peggy (mom) assures Hank that she will be fine alone – getting some housework done, and maybe working a crossword puzzles over the weekend.  But while the guys were out getting scouting badges, something happens that Peggy hopes Hank and Bobby never find out.

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If You Like The Surveillance State, You’ll Love E-Verify

by Ron Paul

From massive NSA spying, to IRS targeting of the administration’s political opponents, to collection and sharing of our health care information as part of Obamacare, it seems every day we learn of another assault on our privacy. Sadly, this week the Senate took another significant, if little-noticed, step toward creating an authoritarian surveillance state. Buried in the immigration bill is a national identification system called mandatory E-Verify.

The Senate did not spend much time discussing E-Verify, and what little discussion took place was mostly bipartisan praise for its effectiveness as a tool for preventing illegal immigrants from obtaining employment. It is a tragedy that mandatory E-Verify is not receiving more attention, as it will impact nearly every American’s privacy and liberty.

The mandatory E-Verify system requires Americans to carry a “tamper-proof” social security card. Before they can legally begin a job, American citizens will have to show the card to their prospective employer, who will then have to verify their identity and eligibility to hold a job in the US by running the information through the newly-created federal E-Verify database. The database will contain photographs taken from passport files and state driver’s licenses. The law gives federal bureaucrats broad discretion in adding other “biometric” identifiers to the database. It also gives the bureaucracy broad authority to determine what features the “tamper proof” card should contain.

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FISA Court Colludes with NSA to Allow Unconstitutional Surveillance

Documents obtained by The Guardian (U.K.) reveal that the court that was ostensibly created to keep the federal domestic spy apparatus from invading the rights of Americans is actually routinely giving the National Security Agency (NSA) and others the go-ahead to use data “inadvertently” collected during unwarranted surveillance of American citizens.

The newspaper that broke the story of the NSA’s activities as revealed by whistleblower Edward Snowden published on June 20 “two full documents submitted to the secret Foreign Intelligence Surveillance Court.” Both documents were signed by Attorney General Eric Holder and were issued in July 2009.

According to the article written by Glenn Greenwald and James Ball, the documents “detail the procedures the NSA is required to follow to target “non-US persons” under its foreign intelligence powers and what the agency does to minimize data collected on US citizens and residents in the course of that surveillance.”

Not surprisingly, neither the Fourth Amendment nor the freedoms against tyranny that it protects are honored by Holder or the other architects and construction crews erecting the surveillance state.

As Greenwald and Ball report, the leaked documents demonstrate that when the NSA is conducting surveillance under the pretense of monitoring foreign targets, any U.S. communication caught in the dragnet is “collected, retained and used.”

Using Section 215 of the Patriot Act as justification, the NSA is now known to monitor and seize the phone records of millions of Americans who are not now or ever have been suspected of any crime that would justify the issuing of a search warrant. This wholesale watching of the telephone activities of citizens was revealed by The Guardian a few weeks ago as part of Snowden’s release of information on his former employer.

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Why They Really Spy on You

by Jacob Hornberger, Future of Freedom Foundation

If you’re a good little citizen who doesn’t make waves and loyally supports whatever the federal government does, always deferring to its authority and trusting its officials, and if you maintain this mindset for the rest of your life, the probability is that you don’t have anything to worry about with respect to the government’s keeping records of your telephone calls, your emails, and other aspects of your private life.

But if you’re the type who has an independent mindset, one that might come to recognize that the warfare state is one great big racket by which power-lusters use federal power to plunder and loot your wealth and income, and if you’re the type of person who might begin objecting to this racket and calling for a restoration of American freedom, then it’s entirely possible that the files that the government is keeping on your private life might come back to haunt you.

Recall what they did to Daniel Ellsberg, the man who disclosed the Pentagon Papers, which revealed that national-security state officials were knowingly lying to the American people about the progress of the Vietnam War. They went after him with everything they could. For revealing their lies, they considered Ellsberg to be a super bad guy, a traitor. He certainly wasn’t a good little citizen who deferred to authority.

So, what did they do?

For one, they had him indicted and tried to send him to jail for a long time.

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Nothing to See Here, Says the Mainstream Right?

Last week we received a few heckles for posting a Facebook meme of George Bush signing the Patriot Act. We stand by our intent – Republicans and Democrats, George Bush and Barack Obama – are sell-outs and equally culpable for the security-surveillance industrial complex of whose scary details were leaked to the press last week.

If you are the sporting type and keeping score, the Democrat-Republican Party is beating the Constitution by six touchdowns going into the fourth quarter. These dudes are on the same team, even if it took you half the game to figure it out. Behind the inexorable expansion of the state, the Right and the Left often stand as one.

Take, for instance, Rich Galen, a neo-con who blogs at Townhall.com, writing today about NSA-whistle blower Edward Snowden:

As a taxpayer, I’m not paying you to look out after my Fourth Amendment rights. I’m paying you to do whatever job you were hired to do, and if you find that job too ethically distasteful, then you should quit.

But keep your mouth shut.

Galen suggests a long federal prison sentence would be just deserts for Snowden for exposing a creepy, out-of-control national government sifting warrantlessly through our personal emails and internet searches. After all, Galen declares, he is a 66-year-old guy with nothing to hide.

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Government Spying: You Shouldn’t Be Shocked!

by Ron Paul

Last week we saw dramatic new evidence of illegal government surveillance of our telephone calls, and of the National Security Agency’s deep penetration into American companies such as Facebook and Microsoft to spy on us. The media seemed shocked.

Many of us are not so surprised.

Some of us were arguing back in 2001 with the introduction of the so-called PATRIOT Act that it would pave the way for massive US government surveillance—not targeting terrorists but rather aimed against American citizens. We were told we must accept this temporary measure to provide government the tools to catch those responsible for 9/11. That was nearly twelve years and at least four wars ago.

We should know by now that when it comes to government power-grabs, we never go back to the status quo even when the “crisis” has passed. That part of our freedom and civil liberties once lost is never regained. How many times did the PATRIOT Act need renewed? How many times did FISA authority need expanded? Why did we have to pass a law to grant immunity to companies who hand over our personal information to the government?

It was all a build-up of the government’s capacity to monitor us.

The reaction of some in Congress and the Administration to last week’s leak was predictable. Knee-jerk defenders of the police state such as Senator Lindsey Graham declared that he was “glad” the government was collecting Verizon phone records—including his own—because the government needs to know what the enemy is up to. Those who take an oath to defend the Constitution from its enemies both foreign and domestic should worry about such statements.

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The Role of Foreign Policy in Security-State Surveillance

by Jacob Hornberger, Future of Freedom Foundation

In the national discussion over the national-security state’s massive surveillance scheme over the American people, it’s imperative that we keep in mind how the national-security state’s foreign policy of empire and interventionism play into how we have ended up with an Orwellian system of national surveillance at the hands of the federal government.

How are statists justifying the NSA’s surveillance over the American people? Not surprisingly, they’re saying it’s all designed to “keep us safe.” The federal monitoring of everyone, they say, enables them to catch a small number of people who are planning terrorist attacks. Never mind, of course, that all that monitoring didn’t prevent the Boston bombing.

A critically important question has to be asked: Why are there people who are initiating terrorist attacks against the United States?

The answer is a simple one: Because the U.S. national-security state is killing, torturing, abusing, humiliating, impoverishing, and destroying people in foreign countries through such policies as coups, support of dictatorships, regime-change operations, interference with internal politics, intervention in foreign disputes, assassinations, torture, rendition, indefinite detention, secret imprisonment, and so forth.

The foreign victims of those policies get angry. A certain percentage of them go on the rampage with acts of anti-American terrorism. That’s in fact what the Boston bombings were all about. And the Ft. Hood killings. And the Detroit and New York City would-be bombers. And 9/11. And the USS Cole. And the attacks on the U.S. embassies in East Africa. And Benghazi.

So, here’s how the national-security system has developed.

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Lesson Learned on NSA Spying? Hopefully?

Dear Republican,

I hear you’re a little miffed at Obama’s National Security Agency collecting phone records of millions of innocent American Verizon customers. I read some comments on the “bombshell” over at Townhall.com. Guy Benson seems displeased.

I hear ya!

I’m more than a little perturbed myself. I was always under the impression that the Fourth Amendment limited the federal government’s power to snoop around in innocent people’s private affairs without a warrant.

But I have to admit, I’m a little confused about your indignation. After all, you made it all possible!

Remember the Patriot Act?

Yup. It was your guy, George W. Bush, who insisted the feds needed these broad, sweeping powers to “protect us from the terrorists.” When civil libertarians protested and invoked the Constitution, you ridiculed them and swore it was “only for the terrorists.” You insisted these powers were absolutely necessary to “keep us safe.” I guess you never stopped to think “your guy” wouldn’t remain in power forever.

Nice bed you made.

Comfy?

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Texas Senate Passes Bill to Nullify Warrantless Drone Spying, 29-1

A bill has passed through the Texas State Senate that aims to protect the privacy of their residents from the police state by instituting strict limitations on the use of unmanned drones in surveillance by law enforcement.

Dubbed the ‘Texas Privacy Act’, H.B. 912 is an attempt to rein in potential abuses related to the rapidly-developing drone technology that has made its hands into the hands of government at the state and federal levels. The bill was originally authored by Rep. Gooden (R-District 4) and has amassed over 100 co-sponsors since it was introduced Feb. 1, showing vast and bipartisan support for stopping the government’s Orwellian takeover of our skies.

The House passed the bill by a vote of 128-11 on May 10th. (roll call here)  And last Friday the Senate passed a slightly amended version of the bill by a vote of 29-1. (roll call here).  HB912 will now go back to the State House to either concur on the amendments or form a conference committee to approve a final version acceptable to both the House and Senate.  Then it’s off to Governor Perry’s desk for a signature.

BILL INFORMATION

The bill states that “a person commits an offense if the person uses or authorizes the use of an unmanned vehicle or aircraft to capture an image without the express consent of the person who owns or lawfully occupies the real property captured in the image.” The offender would be charged with a Class C misdemeanor if they were caught violating this part of the law.

Data gathered by law enforcement illegally ‘may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding’ according to the bill and ‘is not subject to discovery, subpoena, or other means of legal compulsion for its release.’ This incentivizes police to not misuse the drone technology unless they wish to risk jeopardizing their entire investigation.

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