As Republican attention remains fixed on the presidential prize fight between a tycoon who supports expanding domestic surveillance and a senator who was recently responsible for reining it in, President Barack Obama’s federal agencies are busy taking advantage of the distraction.
Two years after the public outrage sparked by Edward Snowden’s revelations, and one month after a federal appeals court ruled the NSA's bulk metadata collection program illegal, Congress finally mustered a reform effort with passage of the USA Freedom Act last June.
(Photo by Allison Shelley/Getty Images)
This compromise bill shut down the NSA’s metadata collection program, while still allowing the government to collect information on designated terror suspects after obtaining a warrant from the controversial Foreign Intelligence Surveillance Court (FISC).
While President Obama ostensibly supported these reforms, his agencies are already hard at work finding ways around them – with or without Congress.
The first change was set in motion several weeks ago when Obama's NSA quietly loosened the rules surrounding the sharing of intercepted data between agencies.
This means that if you place an international call, not only will your data be subject to warrantless spying by the NSA, but will also be available to any other federal agency with whom they choose to share.
Few, if any, protections against this kind of interdepartmental data-sharing exist.
And it’s not just limited to phone records. According to the New York Times, the policy extends to massive amounts of data harvested by phone, email, web interactions, and satellite communications.
On the heels of this significant but largely-ignored shift comes a new report that the FBI is changing its rules with relation to data they access through the NSA.
While it is implied that the changes will help allay privacy concerns, the scant details and liberal use of the “classified” tag are unnerving, as well as the connotative revelation that such practices were almost entirely ungoverned prior to this, and that any limitations are evidently subject to the whims of department chiefs - hardly comforting to privacy advocates.
There is a mountain of precedent and a wall of secrecy protecting these programs, and accoutability is in short supply.
To put it simply, this snowball has been rolling since the ‘80s, and it’s not going to be stopped easily.
According to the Times:
The executive branch can change its own rules without going to Congress or a judge for permission because the data comes from surveillance methods that lawmakers did not include in the main law that governs national security wiretapping, the Foreign Intelligence Surveillance Act, or FISA...In the absence of statutory regulation, the agency’s other surveillance programs are governed by rules the White House sets under a Reagan-era directive called Executive Order 12333.
Civil libertarians have long deplored the expansive powers granted to federal agencies by the 2001 Patriot Act, but have paid less attention to the dangerous precedents set by Cold War-era executive orders and extended through FISA.
This negligence could be our undoing as the argument for privacy begins to shift from one of constitutionality to one of convenience. The ongoing squabble between Apple and the FBI regarding cell phone encryption and law enforcement backdoors demonstrates this shift, as the primary question in the national mind has become whether privacy concerns outweigh the needs of federal investigators.
Despite the fact that law enforcement has secured a warrant for the search, constitutional concerns remain about the demand that Apple produce a software backdoor for the FBI – like the fact that the terms of the warrant in no way extend to an unaffiliated third party like Apple.
The fact of the matter is that since Sept. 11, 2001, Americans have been far too willing to bend on the minimal requirements of the Fourth Amendment for the sake of stopping terrorism, with virtually nothing to show for it.
The coming legislative calendar presents opportunities for Congress to continue last year’s theme of surveillance reform by allowing the authorizing portion of FISA to expire – an effort that is certain to spark a firestorm of resistance from neoconservative surveillance state Republicans as well as staunch democratic backers of the administration.
Due to the millennial revival of libertarianism within the GOP, issues like this are among the few that can gain bipartisan traction in a congress now more divided between the moderate leadership and polar ideologues on both sides, than between Republicans and Democrats.
Despite the hypnotizing effect of this insane and embarrassing presidential contest, those who care about liberty have to remain vigilant, and gear up for the important legislative fights heading toward us – including another broadside assault on the Fourth Amendment by rebuffed surveillance state authoritarians in both parties.
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