Sunday, May 10, 2015

NSA Means Always Having to Say You’re Sorry

No matter how you cut it, no matter which side of the political spectrum you embrace, there’s something deeply disturbing about any government program that can probe your personal emails, phone calls, etc. Even when Intelligence Courts issue warrants, the process is so secret, so hard to monitor, the entire process seems to be violative of our Fourth Amendment’s ban on unreasonable searches and seizures. Warrants from secret courts really don’t feel like real warrants.
Sure we have a determined planet filled with ruthless enemies and terrorists in a digitally linked and dependent world that did not remotely exist when the Bill of Rights was added to the Constitution. We know it is a balancing act. But at what stage do we become like the enemy we fear? When are our policies and procedures ruthless “disregards” of our own Constitutional rights? Is it a fine line or a broad barrier? Is Edward Snowden a hero or a traitor for opening this all up for public discussion and scrutiny? Could there have been another path to foment change? Really? There are no easy answers.
Our courts have found that there is a difference between internal domestic surveillance and links to overseas communications. Congress has waddled through statutes, particularly the overbroad Patriot Act which is currently undergoing severe review by a Congress (the renewal is needed by June 1st), finally coming to grips with its disturbing privacy intrusions. And now our federal appellate courts have stepped into the fray, with a rather clear ruling that NSA’s current practices do not even fall within the four square corners of the Patriot Act itself… without even having to address the broader constitutional questions.
On May 7th, a three-judge panel from Second U.S. Circuit Court of Appeals (seated in New York City) issued an opinion, written by Justice Gerald Lynch, that included the following language: “In light of the asserted national security interests at stake, we deem it prudent to pause to allow an opportunity for debate in Congress that may (or may not) profoundly alter the legal landscape…If Congress decides to authorize the collection of the data desired by the government under conditions identical to those now in place, the program will continue in the future under that authorization… If Congress decides to institute a substantially modified program, the constitutional issues will certainly differ considerably from those currently raised." The court didn’t instantly stop the surveillance practices, allowing enough time for Congress to act to amend the statutes and reshape NSA’s prerogatives accordingly.
But there is anything but uniformity in the Congressional factions that are dealing with this issue. The lines of demarcation are complicated: “Republicans and Democrats in the House have agreed on a bill to end the government's bulk collection of the records, but Senate leaders are backing a competing measure that would maintain the status quo. [Which, according to the Court, is no longer tenable.] One of the sponsors, intelligence committee chairman Richard Burr, has said he is open to a compromise, however.
“The divisions on the issue don't run neatly along partisan lines. Libertarian-leaning Republicans have joined many Democrats in arguing that a secret intelligence agency should not be storing the records of every American phone call, even if the data is only examined under limited circumstances. Some Democrats and Republicans assert that the program is needed now more than ever, given the efforts by the Islamic State group to inspire extremists to attack inside the U.S.

“The House Judiciary Committee last month overwhelmingly passed the latest version of a bill known as the USA Freedom Act. The measure seeks to codify President Barack Obama's proposal to end the NSA's collection and storage of the phone records. Instead, it would allow the agency to request records held by telephone companies under a court order in terrorism investigations.

“Under that proposal, the NSA might end up with access to even more data. As it stands, the program doesn't collect data on most mobile calls, but under a new arrangement, the NSA could request mobile records as needed from phone companies… The 2nd Circuit noted that telephone metadata includes a call's length, the phone number from which it was made and the phone number called.
“Opponents of the program say the information can enable the government to learn, for instance, whether someone has called a domestic violence, rape or suicide hotline or whether someone has reported a crime. They say it can also reveal civil, political or religious affiliations, an individual's social status and whether the person is involved in an intimate relationship.”, May 7th.
Maybe the court’s ruling will spur appropriate Congressional limitations on its surveillance activities, and put the lid on those factions desiring to expand NSA’s powers, knowing that the Second Circuit would most probably rule against such expansion. Perhaps, however, these elected officials would prefer mounting a challenge in the hopes that such expansion might be sustained by the Supreme Court, assuming that the this highest court would even agree to hear the case. But with Congress all over the map, we can only hope that this court ruling will motivate rapid and appropriate controls on what seems to have become an intrusive and abusive process.
I’m Peter Dekom, and no matter the result, just having such powers within a government agency feels deeply un-American.

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