• U.S. Court of Appeals rules against top spy agency.
• Maverick rep. warns about passage of PATRIOT Act II.
By Mark Anderson —
On May 7, the United States Court of Appeals for the Second Circuit ruled that the collection of billions of telephone calls made or received by Americans by the National Security Agency (NSA) is not authorized by Section 215 of the USA PATRIOT Act and is unlawful. U.S. Representative Justin A. Amash (R-Mich.) called the ruling “a big win for privacy and civil liberties advocates a big win for privacy and civil liberties advocates who have long argued that Section 215 clearly does not contemplate the type of mass collection we now know is occurring.”
Action on that act could come soon. Senator Michael Shumway “Mike” Lee (R-Utah) tried to abruptly switch May 19’s Senate floor business from fast-track trade negotiating power for Obama to a proposed passage of the FREEDOM Act to no avail.
Amash remarked that the welcome court ruling “will be short lived if H.R. 2048, the latest version of the USA FREEDOM Act that’s scheduled to be considered by the House of Representatives . . . becomes law.”
The FREEDOM Act would provide the legal basis for spying that Section 215 arguably does not provide, said Amash.
He stated this disturbing development plainly: “H.R. 2048 gives our intelligence agencies, for the first time, statutory authority to collect Americans’ data in bulk. In light of the second circuit’s opinion that the NSA has been collecting our information in bulk without statutory authority for all this time, it would be a devastating misstep for Congress to pass a bill that codifies that bulk collection and likely ensures no future court will ever again be positioned to rule against the government for over-collecting on statutory grounds.”
And that’s the problem with the FREEDOM Act. Amash concluded that H.R. 2048 falls woefully short of ending the mass collection of citizens’ communications data and instead drags the country in the wrong direction by authorizing it in violation of the Fourth Amendment to the Constitution.
Amash added the PATRIOT Act’s much-despised Section 215 “authorizes the government to collect records and other ‘tangible things’ that are ‘relevant’ to a terrorism or foreign intelligence investigation. To support the bulk collection of data pertaining to millions of law-abiding Americans, the government has effectively claimed that all records everywhere are potentially relevant to a current or future investigation, and thus all records are fair game for collection.”
So the Second Circuit had little choice but to reject the government’s broad interpretation of “relevant,” given that “the rest of the statute gives no indication Congress ever contemplated collection on such a mass scale,” Amash said.
Second Circuit CONCLUSION
“For the foregoing reasons, we conclude that the district court erred in ruling that § 215 authorizes the telephone metadata collection program, and instead hold that the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates § 215. Accordingly, we VACATE the district court’s judgment dismissing the complaint and REMAND the case to the district court for further proceedings consistent with this opinion.”
The FREEDOM Act’s original sponsor, notably, is Representative Frank James “Jim” Sensenbrenner, Jr. (R-Wisc.).
According to Amash, some outside advocacy groups have been arguing that H.R. 2048 ends bulk collection.
True, the bill ends the government-backed phone dragnet as it’s currently known. Instead, phone companies will be obligated to hold, search and analyze mass telephone data at the government’s request.
But that may be worse in many ways, given the broader set of data the companies hold, Amash noted.
The FREEDOM Act “actually expands the statutory basis for the large-scale collection of most data,” Amash said. “H.R. 2048 does this by authorizing the government to order the production of records based upon a ‘specific selection term’ (i.e., like a search term used in a search engine). The records sought still must be relevant to an investigation, so it’s possible the court’s ruling will continue to restrain the government in some fashion. But it’s more likely a court looking at H.R. 2048’s language will see the ‘specific selection term’ as defining the outer limits of what Congress considers acceptably ‘relevant’ under Section 215.”
In fact, in reforming Section 215, the second circuit encouraged Congress to make a “congressional judgment as to what is ‘reasonable’ under current circumstances.”
Bottom line, “specific selection term” is defined so broadly under the bill as to have little effect on narrowing the scope of items the government may obtain through a 215 order.
“Specific selection term” may be a specific person, including a corporation, such as Western Union, account, address or personal device, but it also may be “any other specific identifier,” and the bill expressly contemplates using geographic regions or communication service providers (such as Verizon) to define the records sought, so long as it’s not the only identifier used as part of the specific selection term.
In other words, the bill may not let the government require a company like Verizon to hand over all its records without limits, but apparently nothing stops the government from requiring Verizon to turn over all its records for all its customers, say, in the state of New York.
The pro-privacy Electronic Frontier Foundation clarified that the entire PATRIOT Act is not going to expire June 1, as many assume, but three provisions do expire as June 1 arrives: “Section 215, the ‘Lone Wolf’ provision, and the ‘roving wiretap’ provision.”
AMERICAN FREE PRESS readers should contact Congress right away to laud Senator Randal Howard “Rand” Paul (R-Ky.) for his 10-hour filibuster against reauthorization of the PATRIOT Act’s worst aspects.
“I’m going to lead the charge in the next couple of weeks as the PATRIOT Act comes forward,” Paul told the New Hampshire Union Leader. “We will be filibustering. We will be trying to stop it. We are not going to let them run over us. And we are going to demand amendments and we are going to make sure the American people know that some of us at least are opposed to unlawful searches.”
As of this revised story, the House had passed HR 2048 [The USA FREEDOM Act] in mid-May but, as of May 22, a motion to proceed on the act had been made in Senate, which is not a final vote but is merely a green light to pursue a final vote. Those opposed to HR 2048 would do well to contact their Senators the morning after Memorial Day onward. Any Senate (or House) member can be contacted via the Capitol Switchboard, 202-224-3121 or 225-3121.
AFP Roving Editor Mark Anderson is a veteran reporter who covers the annual Bilderberg meetings and is chairman of AFP’s new America First Action Committee, designed to involve AFP readers in focusing intensely on Congress to enact key changes, including monetary reform and a pullback of the warfare state. He and his wife Angie often work together on news projects.
Will Congress Finally Rein in NSA?
By Former Rep. Ron Paul —
In mid-May the Sixth Circuit Court of Appeals ruled that the National Security Agency’s (NSA) metadata collection program was not authorized in U.S. law. The PATRIOT Act, under which the program began, was too vague, the court found. But the truth is the act was intended to be vague so that the government could interpret it in the broadest possible way.
But this is really more of a technicality, because illegality and unconstitutionality are really two very different things. Even if Congress had explicitly authorized the government to collect our phone records, that law would still be unconstitutional because the Constitution does not grant government the power to access our personal information without a valid search warrant.
Even though the court found the NSA program illegal, it did not demand that the government stop collecting our information in this manner. Instead, the court kicked the ball back in Congress’s court, as these provisions of the PATRIOT Act are set to expire at the end of the month and the appeals court decided to let Congress decide how to re-authorize this spying program.
Unfortunately, this is where there is not much to cheer. If past practice is any lesson, Congress will wait until the spying program is about to expire and then in a panic try to frighten Americans into accepting more intrusions on their privacy. Senate Majority Leader Mitch McConnell (R-Ky.) has already put forth a new bill as a stop-gap measure to allow time for a fuller debate on the issue. His stopgap? A five year re-authorization with no changes to the current program.
The main reform bill being floated, the FREEDOM Act, is little better. Pretending to be a step in the right direction, the FREEDOM Act may actually be worse for our privacy and liberties than the PATRIOT Act.
One silver lining in the court decision is that it should exonerate Ed Snowden, who risked it all to expose what the courts have now found was illegal U.S. government activity. That is the definition of a whistleblower. Shouldn’t he be welcomed back home as a hero instead of being threatened with treason charges? We shouldn’t hold our breath.
This week Snowden addressed a conference in Melbourne, Australia, informing citizens that the Australian government watches all its citizens “all the time.” Australia’s program allows the government to “collect everyone’s communications in advance of criminal suspicion,” he told the conference. That means the government is no longer in the business of prosecuting crimes, but instead is collecting information in case crimes someday occur.
How is it that the Australian government can collect and track “pre-crime” information on its citizens? Last month Australia passed a law requiring telecommunications companies to retain metadata information on their customers for two years.
Why do Australia’s oppressive laws matter to us? Because the NSA “reform” legislation before Congress, the FREEDOM Act, does exactly what the Australian law does: it mandates that U.S. telecommunications companies retain their customers’ metadata information so that the NSA can access the information as it wishes.
Some argue that this metadata information is harmless and that civil libertarians are over-reacting. But, as Snowden told the Melbourne conference, “under these mandatory metadata laws you can immediately see who journalists are contacting, from which you can derive who their sources are.”
This one example of what happens when the government forces corporations to assist it in spying on the people should be a red flag. How can an independent media exist in the U.S. if the government knows exactly whom journalists contact for information? It would be the end of any future whistleblowers.
The only reform of the PATRIOT Act is a total repeal. Accept nothing less.
Ron Paul, a former U.S. representative from Texas and medical doctor, continues to write his column “Texas Straight Talk” for the Foundation for Rational Economics and Education.