A federal court ruled that Section 215 of the Patriot Act did not authorize bulk data collection, whereas the Freedom Act contains provisions to actually give the government that authority. …
Note that the so-called USA Freedom Act only addresses phone data collection and leaves untouched all the email data collection which is total. It also doesn’t address the total tracking of internet activity.
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World Affairs Brief, June 5, 2015 Commentary and Insights on a Troubled World.
Copyright Joel Skousen. Partial quotations with attribution permitted. Cite source as Joel Skousen’s World Affairs Brief (http://www.worldaffairsbrief.com).
PATRIOT ACT EXPIRES, SPYING CONTINUES
The media dutifully parroted the government claim this week that the NSA was dismantling whole spy buildings in compliance with the expiration of the PATRIOT Act, but there is no evidence of this whatsoever. Stopping domestic spying has never been an option for the NSA, and it will never stop. In fact, domestic spying is not about finding terrorists but about tracking dissidents and anti-government activists and their followers in the USA. The USA Freedom Act, which supposedly limits government spying, is a ploy to make it appear as if the NSA is being severely limited. Public outrage will now subside thinking that domestic spying is now restricted. It is not and that is why this “reform” bill was allowed to pass and why Obama will quickly sign it into law.
The NY Times gave an interesting commentary on the behind-the-scenes acrimony and maneuvers between government shills like Senate Majority leader Mitch McConnell (R-Ky) and his fellow Kentucky Senator, Rand Paul who is sincerely trying to stop government spying. The Times has subsequently published several pieces taking potshots at Paul—who is clearly the one they must not allow to be the GOP nominee for president:
The expiration of three key provisions of the Patriot Act means that, for now, the N.S.A. will no longer collect newly created logs of Americans’ phone calls in bulk. It also means that the F.B.I. cannot invoke the Patriot Act to obtain, for new investigations, wiretap orders that follow a suspect who changes phones, wiretap orders for a “lone wolf” terrorism suspect not linked to a group, or court orders to obtain business records relevant to an investigation.
However, the Justice Department may invoke a so-called grandfather clause to keep using those powers for investigations that had started before June 1, and there are additional workarounds investigators may use to overcome the lapse in the authorizations. [The government will always find some loophole or procedure to keep justifying what they want to do.]
Mr. McConnell and other national security hawks who failed to continue the program badly underestimated the shift in the national mood, [first time the Times has admitted that] which has found its voice with Democrats and the libertarian wing of the Republican Party. The moment also put him at odds with Mr. Paul, whom he has endorsed for president. [Only because Paul endorsed McConnell for re-election with an expectation for a quid pro quo.
Mr. Paul’s effort [to block the PATRIOT Act extension] clearly angered many of his Republican colleagues, who met without him an hour before the Senate began to vote Sunday night. Senator John McCain, Republican of Arizona [a neocon warmonger], who sparred with Mr. Paul on the floor over procedure, said later that Mr. Paul was not fit for the White House job he seeks. “I’ve said on many occasions that I believe he would be the worst candidate we could put forward,” he said.
Even as senators were trickling into the Capitol from the airport, Mr. McConnell attempted to extend some aspects of the law. He asked senators to consider a two-week continuation of the federal authority to track a “lone wolf” terrorism suspect not connected to a state sponsor and to conduct “roving” surveillance of a suspect, rather than of a phone number alone, to combat terrorists who frequently discard cellphones [the phony justifications go on and on].
But Mr. Paul objected, and Mr. McConnell denounced from the Senate floor what he called “a campaign of demagoguery and disinformation” about the program.
Many are celebrating the demise of the PATRIOT Act and its replacement with the USA Freedom Act, thinking that the establishment was defeated and only reluctantly accepted the Freedom Act. This comment by Philippe Gastonne is typical:
Almost everything the president says about the USA Freedom Act is false. He does not at all “welcome” the law’s passage. If Obama had his way, Congress would have never even considered this law because the National Security Agency’s illegal activities would still be secret.
He’s wrong about Obama not welcoming the passage of the Freedom Act. Obama will sign it because it actually authorizes spying in a more direct way than the PATRIOT Act ever did. And its requirements that the NSA access the now privately collected data via FISA court warrants are simply a fig leaf of token compliance. For years the secret FISA court has gone through the motions of authorizing a few thousand warrants for the NSA each year, all the while knowing that the NSA was spying on everything and everyone. The warrants are there to give lip service to the constitution’s fourth amendment, while covering for massive violations in secret.
The USA Freedom act is thus a masterful ploy to defuse growing public opposition to government domestic spying and make them think real reform is taking place. Let me walk you through the deception.
The government had long contended that Section 215 of the PATRIOT ACT authorized domestic telephone data collection. It did not and that is why they also maintained that their interpretation of the section was secret, and that the public wasn’t entitled to know. The Electronic Freedom Foundation (EFF) explains how this came unraveled.
EFF sued the Department of Justice (DOJ) on the 10th anniversary of the signing of the USA PATRIOT Act in October 2011 for answers about “secret interpretations” of a controversial section of the law. In June 2013, a leaked FISA court order publicly revealed that “secret interpretation”: the government was using Section 215 of the Patriot Act to collect the phone records of virtually every person in the United States.
Prior to the revelations, several senators warned that the DOJ was using Section 215 of the PATRIOT Act to support what government attorneys called a “sensitive collection program,” targeting large numbers of Americans. The language of Section 215 allows for secret court orders to collect “tangible things” that could be relevant to a government investigation – a far lower threshold and more expansive reach than a warrant based on probable cause. The list of possible “tangible things” the government can obtain is seemingly limitless, and could include everything from driver’s license records to Internet browsing patterns.
In response to a court order in our lawsuit, in September 2013, the government released hundreds of pages of previously secret FISA documents detailing the court’s interpretation of Section 215, including an opinion excoriating the NSA for misusing its mass surveillance database for years. In October 2013, the government released a second batch of documents related to Section 215, which showed, among other things, that the NSA had collected cell site location without notifying its oversight committees in Congress or the FISA court.
Now that their legal standing was undermined, the PTB had to concoct a strategy to change it that was a similar to the ploy used to establish the Federal Reserve. The original FED legislation was designed by powerful banking forces, who then pretended to oppose it so that the public with their anti-banking sentiment would be fooled into backing what the banks opposed.
In like manner Obama and the government falsely pretended that they were adamant that the PATRIOT Act provisions needed to be extended past last Monday’s sunset clause deadline. Rand Paul’s filibuster of the Patriot Act extension was sincere but he unknowingly played into their hands. It seemed strange to me that Paul’s filibuster ended because he didn’t have the votes to sustain it and yet the establishment then failed to find the votes to extend the PATRIOT Act.
Something was wrong with this picture. The establishment could have rounded up the votes to extend the act, but allowed it to expire instead. Then the press went to work promoting this new reform bill that would supposedly bow to public pressure and restrict the NSA. It sounded too good to be true, and it was. The US has billions of dollars in equipment all around the world tapping into every cable, fiber, microwave and satellite transmission network around the world. Those that believe these tentacles are being dismantled are woefully naive. The Washington Post wrote,
On Tuesday, a bipartisan group of lawmakers introduced a bill aimed at blocking the National Security Agency from collecting the phone records of millions of Americans. The effort was described by its sponsors as a balanced approach that would ensure the NSA maintains an ability to obtain the data it needs to detect terrorist plots without infringing on Americans’ right to privacy.
Congress failed to advance similar legislation last year, and some officials say the agency should not face new constraints at a time of deep concern over the threat from terrorist groups such as the Islamic State
Actually, the reason “similar” legislation did not advance last year is that the original bill outright prohibited spying directly or via the phone companies. The Freedom Act’s supposed “balanced” approach leaves the door wide open to spying. It pretends to limit NSA spying, but really authorizes it openly—which had never been done before. Ron Paul agrees
Passing the Freedom Act did not reform government snooping, so much as it made it legitimate, according to three-time presidential candidate Ron Paul. He asserts that Democrats and Republicans alike seek to reduce liberty for a promise of security.
“One thing in Washington, when they have the ‘reform’ of something, you cannot trust them, because reform usually means they’re making things a lot worse,” Ron Paul told Larry King on Politicking, Tuesday evening. “I think the reform act is a very, very dangerous thing. It’s not a slight improvement, as some people argue.”
The Freedom Act, adopted by the Senate on Tuesday and quickly signed by President Obama, actually makes the situation worse, Paul argued. A federal court ruled that Section 215 of the Patriot Act did not authorize bulk data collection, whereas the Freedom Act contains provisions to actually give the government that authority.
“That’s why a lot of people are voting for the reform act,” Paul said. “But actually it’s making things worse. Because the first thing is, it’s making government a partner with Big Business, so Verizon and AT&T are doing the government’s work. I don’t like that, I don’t like the mixture.”
Ever since WWII, Bell Telephone was allowing warrantless phone tapping by the government, though this pales in comparison with today’s total surveillance. Actually the big phone companies have always been in bed with government—this just makes it official. Electronic Frontier Foundation Executive Director Cindy Cohn said that the major American telecommunications companies will continue to cooperate eagerly with the US government and carry out its wishes just as during the past 14 years. “[Verizon and AT&T] have demonstrated that they are willing to cooperate with the US government”
The US phone and Internet providing corporations “do not have an obligation… to serve as an intelligence arm of the government,” the EFF Director said. “Most of these companies keep this information for at least 18 months,” she added. Cohn also said that the American public is kept in the dark about their rights to privacy and protection from surveillance because the US government refuses to inform them.
Only Qwest Telephone Company objected to NSA spying on its equipment in the beginning and the government made an example of its CEO, Joseph P. Nacchio, for his refusal to give customer data to the National Security Agency. He was convicted of trumped up charges of insider trading in Qwest stock on April 19, 2007. Since then there has been little opposition by telecommunication executives.
Note that the so-called USA Freedom Act only addresses phone data collection and leaves untouched all the email data collection which is total. It also doesn’t address the total tracking of internet activity. Documents leaked by Edward Snowden in response to the passage of the phony reform bill show that the US government has been doing warrantless surveillance of Americans’ Internet traffic for years.
But one of the most important issues here has hardly been addressed—the fact that Congress cannot authorize that which is unconstitutional. All warrantless spying is a violation of the 4th Amendment. Law professor Orin Kerr explains:
Don’t overlook one key feature of surveillance reform and the passage of the USA Freedom Act: It came from legislation, not the Fourth Amendment. A court had wrongly allowed the bulk surveillance program that Congress had not actually authorized. When the public became aware of the program, Congress restricted the program by passing a new law.
Note what wasn’t a significant influence on the reform: the Fourth Amendment. All but one of the judges who ruled on the issue concluded that the Fourth Amendment wasn’t implicated by the bulk telephony metadata law. In the one case where a judge ruled that the prior program violated the Fourth Amendment, that court stayed the ruling on appeal and the court of appeals on review seemed pretty skeptical about the ruling at oral argument.
The USA Freedom Act is a legislative reform. Given how surveillance debates so often focus on the role of the Fourth Amendment and the courts, it’s worth flagging that the reforms here came from Congress.
That speaks volumes about how little Congress thinks about the restrictions of the Constitution. The courts, which have a duty to enforce the constitution, are also controlled by powerful forces beyond government and refuse to do so.
