Yes, I’m done making sausage for now, and back on this Constitution vs. The Surveillance State kick of mine. Feel free to ignore this if you don’t care too much about your civil rights.
The board of experts approved by Congress to oversee actions resulting from the Endless War on Terror, and the effects they have on the citizenry’s liberties, issued this report yesterday basically concluding the government’s domestic spying operations are out of control and need to stop:
The statute creating the Privacy and Civil Liberties Oversight Board (“PCLOB” or “Board”) directs the Board to analyze and review actions taken by the executive branch to protect the nation from terrorism, “ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties.” In pursuit of this mission, the PCLOB has conducted an in-depth analysis of the bulk telephone records program operated by the National Security Agency (“NSA”) under Section 215 of the USA PATRIOT Act (“Patriot Act”)…
Section 215 is designed to enable the FBI to acquire records that a business has in its possession, as part of an FBI investigation, when those records are relevant to the investigation. Yet the operation of the NSA’s bulk telephone records program bears almost no resemblance to that description.
First, the telephone records acquired under this program have no connection to any specific FBI investigation at the time the government obtains them. Instead, they are collected in advance to be searched later for records that do have such a connection. Second, because the records are collected in bulk — potentially encompassing all telephone calling records across the nation — they cannot be regarded as “relevant” to any FBI investigation without redefining that word in a manner that is circular, unlimited in scope, and out of step with precedent from analogous legal contexts involving the production of records. Third, instead of compelling telephone companies to turn over records already in their possession, the program operates by placing those companies under a continuing obligation to furnish newly generated calling records on a daily basis. This is an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole, because it circumvents another provision that governs (and limits) the prospective collection of the same type of information. Fourth, the statute permits only the FBI to obtain items for use in its own investigations. It does not authorize the NSA to collect anything.
In addition, the Board concludes that the NSA’s program violates the Electronic Communications Privacy Act. That statute prohibits telephone companies from sharing customer records with the government except in response to specific enumerated circumstances — which do not include orders issued under Section 215…
The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the Board recommends that the government end the program.
Without the current Section 215 program, the government would still be able to seek telephone calling records directly from communications providers through other existing legal authorities. The Board does not recommend that the government impose data retention requirements on providers in order to facilitate any system of seeking records directly from private databases.
Once the Section 215 bulk collection program has ended, the government should purge the database of telephone records that have been collected and stored during the program’s operation, subject to limits on purging data that may arise under federal law or as a result of any pending litigation.
The Board also recommends against the enactment of legislation that would merely codify the existing program or any other program that collects bulk data on such a massive scale regarding individuals with no suspected ties to terrorism or criminal activity. Moreover, the Board’s constitutional analysis should provide a message of caution, and as a policy matter, given the significant privacy and civil liberties interests at stake, if Congress seeks to provide legal authority for any new program, it should seek the least intrusive alternative and should not legislate to the outer bounds of its authority.
Here’s the funny thing (and not at all in the ha-ha sense). President Obama knew when this report would be released. I believe he was briefed well in advance and knew precisely what the report would conclude. Yet he chose to hold a national press conference six days before the report came out – not to announce that he wholeheartedly agreed with the report’s conclusions and was ending the daily intrusion into all Americans’ privacy – but to announce that the daily mass spying on millions of innocent citizens will continue. But maybe someone besides the NSA will own the computers on which their spy database records reside.
One is left to wonder, why is this president so hell-bent on nurturing and growing Big Brother in the United States, even in the face of exhaustive evidence that this is illegal. And even though, as the board report notes, “The classified briefings and materials the Board has received have not demonstrated that the increased speed, breadth, and historical depth of the Section 215 program have produced any concrete results that were otherwise unattainable.”
And why, one also wonders, are so many of our so-called leaders – such as past presidents and the future anointed (i.e. Hillary Clinton) so silent as this country’s civil liberties continue to be shredded?
Update: This is ironic. It is not the Democrats, who used to see themselves as champions of civil liberties, who are calling for an end to the spying. It is the long-time defenders of the military-industrial complex – the Republicans.
From Time: “In the latest indication of a growing libertarian wing of the GOP, the Republican National Committee passed a resolution Friday calling for an investigation into the “gross infringement” of Americans’ rights by National Security Agency programs that were revealed by Edward Snowden.”