March 31, 2015
Part of the Washington mystique is to call things by names that lull the public into believing the government is diligently protecting our nation from foreign enemies – case-in-point: the USA Patriot Act, the Foreign Intelligence Surveillance Act, the USA Freedom Act. However, as NSA contractor Edward Snowden clearly demonstrated, all of these acts purportedly give US intelligence collection agencies the authority to spy on Americans despite the Bill of Rights prohibiting unreasonable intrusions by the government.
Today the Senate will hold a rare Sunday session to debate the fate of the contentious Patriot Act that expires at midnight. At the heart of the debate is the much talked about Section 215 that allegedly allows the government to collect telephone metadata records from all Americans. Last week Senator Rand Paul filibustered on the floor of the Senate for 10 ½ hours to prevent the extension of the Act, forcing Senate leaders into another legislative cliffhanger. Today the Senator hopes his legislative maneuvering will spell the beginning of the end of the domestic surveillance of Americans.
Most of the news reporting centers on the controversial Section 215, which allows the federal government via the NSA to obtain and store “any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the Constitution.”
The government argues that under Section 215 relevant agencies only collect metadata like length of a call or how many times the user called particular phone numbers but no actual content of emails or texts. Civil liberty critics point out the lack of specific warrants in Section 215 violates First and Fourth Amendment rights of Americans.
However, Section 215 appears to be nothing more than a smoke and mirrors debate for politicians to flaunt in front of news cameras. Further, they are claiming the USA Freedom Act, a bill that passed in Congress in a bi-partisan landslide 329-88, curtails Section 215 abuses, but the proof is in the pudding and Section 215 simply shifts the storage of the records to the telephone carriers (many say they will charge the government even more money to turn over the records as well as pass on additional cost to users). The government still retains broad liberal access to continue government surveillance prompting civil liberty groups like the ACLU to highlight the new legislation attempts to legalize programs several courts have ruled unconstitutional.
Looks like what Uncle Sam gives with one hand he invariably takes with the other. For example, let’s introduce you to the little known and even less reported surveillance tool used by US law enforcement, Section 702 of the Foreign Intelligence Surveillance Act Amendments (FISA) of 2008 (that President Obama signed into law in early 2009). In a document cache, NSA whistleblower, Edward Snowden, released information on an NSA program called PRISM, which allows the NSA, through Section 702, to not only collect the CONTENT of phone conversations of “foreigners,” something the NSA and government officials said they didn’t have the technology to do (listen to content), but they only need a 51 percent confidence that the person whom they are invasively recording conversations, reading texts or emails has engaged or intends to engage in terror-related acts.
The civil liberties organization, Electronic Frontier Foundation (EFF), analyzed Section Section 702 upon which the NSA relies to collect metadata of phone calls, texts and emails, and further highlighted the government’s massive buildings needed to store all the electronic data for years to come. EFF suggests Americans ask their lawmakers and the President the following questions:
• Most of the discussion around the NSA has focused on the phone records surveillance program. Unlike that program, collection done under Section 702 captures content of communications. This could include content in emails, instant messages, Facebook messages, web browsing history, and more.
• Even though it’s ostensibly used for foreign targets, Section 702 surveillance sweeps up the communications of Americans. The NSA has a twisted, and incredibly permissive, interpretation of targeting that includes communications about a target, even if the communicating parties are completely innocent. As John Oliver put it in his interview with former NSA General Keith Alexander: “No, the target is not the American people, but it seems that too often you miss the target and hit the person next to them going, ‘Whoa, him!'”
• The NSA has confirmed that it is searching Section 702 data to access American’s communications without a warrant, in what is being called the “back door search loophole.” In response to questions from Senator Ron Wyden, former NSA director General Keith Alexander admitted that the NSA specifically searches Section 702 data using “U.S. person identifiers,” for example email addresses associated with someone in the U.S.
• The NSA has used Section 702 to justify programs in which the NSA can siphon off large portions of Internet traffic directly from the Internet backbone. These programs exploit the structure of the Internet, in which a significant amount of traffic from around the world flows through servers in the United States. In fact, through Section 702, the NSA has access to information stored by major Internet companies like Facebook and Google.
• Section 702 is likely used for computer security operations. Director of National Intelligence James Clapper noted Section 702’s use to obtain communications “regarding potential cyber threats” and to prevent “hostile cyber activities.” Richard Ledgett, Deputy Director of NSA, noted the use of intelligence authorities to mitigate cyber attacks.
• The FISA Court has little opportunity to review Section 702 collection. The court approves procedures for 702 collections for up to a year. This is not approval of specific targets, however; “court review [is] limited to ‘procedures’ for targeting and minimization rather than the actual seizure and searches.” This lack of judicial oversight is far beyond the parameters of criminal justice.
• Not only does the FISA Court provide little oversight, Congress is largely in the dark about Section 702 collection as well. NSA spying defenders say that Congress has been briefed on these programs. But other members of Congress have repeatedly noted that it is incredibly difficult to get answers from the intelligence community, and that attending classified hearings means being unable to share any information obtained at such hearings. What’s more, as Senator Barbara Mikulski stated: “‘Fully briefed’ doesn’t mean that we know what’s going on.” Without a full picture of Section 702 surveillance, Congress simply cannot provide oversight.
• Section 702 is not just about keeping us safe from terrorism. It’s a distressingly powerful surveillance tool. While the justification we’ve heard repeatedly is that NSA surveillance is keeping us safer, data collected under Section 702 can be shared in a variety of circumstances, such as ordinary criminal investigations. For example, the NSA has shared intelligence with the Drug Enforcement Agency that has led to prosecutions for drug crimes, all while concealing the source of the data.
• The President has largely ignored Section 702. While the phone records surveillance program has received significant attention from President Obama, in his speeches and his most recent proposal, Section 702 remains nearly untouched.
• The way the NSA uses Section 702 is illegal and unconstitutional—and it violates international human rights law. Unlike searches done under a search warrant authorized by a judge, Section 702 has been used by the NSA to get broad FISA court authorization for general search and seizure of huge swathes of communications. The NSA says this is OK because Section 702 targets foreign citizens. The problem is, once constitutionally protected communications of Americans are swept up, the NSA says these communications are “fair game” for its use.
EFF concludes that even if the USA Freedom Act passes Congress and is signed by President Obama, the government would be allowed to continue the allegedly “unwitting” collection of billions of records under the Section 702 program, without missing a beat or a warrant.
A Department of Justice report illustrates what the FBI can use
A Justice Department inspector general’s report released last week established that the FBI also employs Patriot Act provisions to accumulate significantly more personnel data than business records. According to the Guardian, “The Patriot Act allows the FBI “large collections” of Americans’ internet metadata, as long noted by journalist Marcy Wheeler, including the to/from lines of emails, texts, instant messages, web addresses, and probably internet protocol addresses.”
Even brand new DOJ Attorney General, Loretta Lynch, said on Wednesday that the expiration of Section 215 means “a serious lapse in our ability to protect the American people.” Also weighing in of the government snooping program was the Department of Homeland Security Secretary, Jeh Johnson, who said it was “alarming … the legal authorization for activities critical to national security, law enforcement and public safety will expire.”
The problem is, a new DOJ report debunks the governments scare tactics and points out there are plenty of tools in the toolbox for the intelligence community to employ for terrorist activity.
“[T] he agents we interviewed did not identify any major case developments that resulted from use of the records obtained in response to Section 215 orders, but told us that the material produced pursuant to Section 215 orders was valuable in that it was used to support other investigative requests, develop investigative leads, and corroborate other information,” the report elucidated.
What does President Obama think?
“As a nation we have to find the right balance between privacy and security, between executive authority to face threats and uncontrolled power. What protects us, and what distinguishes us, are the procedures we put in place to protect that balance, namely judicial warrants and congressional review. … These are concrete safeguards to make sure surveillance hasn’t gone too far,” is what Senator Obama said in 2006 when he voted against CIA director hopeful General Michael Hayden (He got the job).
Then in 2007, Mr. Obama had harsh words for the Patriot Act on the campaign trail. “I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom. That means no more illegal wiretapping of American citizens. No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war. No more ignoring the law when it is inconvenient.”
Quite the Mr. Smith goes to Washington moment, but as history shows President Obama re-upped the Patriot Act in his first month in office, and again in 2013.
The President’s new NSA mantra goes something like this; “The USA Freedom Act strikes a balance between security and privacy, reauthorizing important measures that give our national security professionals the authorities they use to keep us safe, while also implementing reforms that enhance the privacy and civil liberties of our citizens. The Act also includes other changes to our surveillance laws — including more transparency — to help build confidence among the American people that your privacy and civil liberties are being protected.”
He went on to say these “tools are not controversial” in his weekly address. Unfortunately for the President there are several lawsuits against the government’s Patriot Act and a federal court ruled 10 days ago that Section 215 was unconstitutional.
And unlike the heavy arm-twisting mixed with flattery the President used to get the TPP trade bill across the finish line, but in his weekly address, Obama went for the throat over Section 215 by expressing his distain towards Presidential hopeful Senator Rand Paul.
But will Senator Rand Paul really stand for American freedom?
The politicking involved with the Patriot Act has reached a boiling point between “law and order” factions and “rule of law” supporters with Republicans demeaning Republicans and Democrats pushing to keep the police state going.
“Some folks are trying to use this debate to score political points,” Obama said this week. “A small group of senators (he is talking about Rand Paul) is standing in the way.”
Yesterday, Mr. Paul ended the suspense and said he would block the Patriot Act’s renewal. He noted that the time was right and he would ensure the Patriot Act expires at the stroke of midnight Sunday.
“Forcing us to choose between our rights and our safety is a false choice and we are better than that as a nation and as a people,” Paul tweeted throughout Saturday. “It’s why I have been seeking for months to have a full, open and honest debate on this issue — a debate that never came.”
“Let me be clear, I acknowledge the need for a robust intelligence agency and for a vigilant national security. I believe we must fight terrorism, and I believe we must stand strong against our enemies. But we do not need to give up who we are to defeat them. In fact, we must not,” Paul explained. “There has to be another way. We must find it together. So tomorrow, I will force the expiration of the NSA illegal spy program.”
The new Senate under GOP majority leader Mitch McConnell runs on unanimous consent rules that led to a stunning upset when Senator Paul’s filibuster forced the defeat of the USA Freedom Act.
Senator McConnell will look to move quickly when the Senate reconvenes on Sunday afternoon by invoking cloture on the first vote, that will most likely fail, but it is the first of many steps the chamber must follow to get a bill to President Obama’s desk.
It typically takes 30 hours of debate before the first cloture vote takes place, but unlike the 10-½ hour filibuster Paul successfully completed last week, he will only need one hour to wind the clock down, preventing the bill from passage. Nevertheless, it is unlikely that the Patriot Act will die forever; legislative watchers and insiders say the plan will simply move toward the USA Freedom Act being passed in the next week or two.
In addition to Section 215 is the lessor known executive order 12333 that intelligence agencies can use “to gather information on foreign communications, including communications made by Americans that communicate over computer services hosted outside of the United States.” The federal Second Circuit appeals court, ruled the Section 215 program by the Obama administration “was illegal and beyond the scope of the law as written be Congress. The constitutional issues, however, are sufficiently daunting to remind us of the primary role that should be played by our elected representatives in deciding, explicitly and after full debate, whether such programs are appropriate and necessary,” said Judge Gerald Lynch. There are currently two other federal court cases waiting to adjudicate Section 215 and the ultimate decision may be left to the Supreme Court.
(Excerpt) House leader John Boehner corralled his party and scooped a majority of Democrats in an effort to give the illusion Congress is reigning in the National Security Agency (NSA) by passing HR 2048, the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015 aka USA Freedom Act. The legislation claims to inaugurate strong reforms in the intelligence sector by restraining the NSA’s ability to collect cell phone metadata from Americans. The 338-88 vote illustrates Congressional lawmakers, who are closest to their representatives, may have heard but did not heed the concerns of the voters regarding the continued erosion of civil liberties and an overly aggressive government that believes intrusive surveillance is necessary to keep the homeland safe.
© Copyright 2015 Kimberly Dvorak All Rights Reserved.