US Citizens' (Small) Victory in Fight Against Govt. Search & Seizure

Posted Saturday, June 13, 2015 in Customer Experience by Patricia Seybold

Thanks to courageous stands taken by Republican Senator Rand Paul and Democratic Senator Ron Wyden, and to an outpouring of calls and emails from American voters (thank you!), the three portions of the US Patriot Act that authorized the mass collection and data mining of the phone records of US citizens expired on June 1st, 2015.

 The Customer Revolution Continues....U.S. Patriot Act Expires

Edward Snowden Comments on USA Freedom Act Passage

Edward Snowden: "Expiration of Portions of the Patriot Act = Historic Victory for the Rights of Every Citizen"

In a video interview with The Guardian and then in an Op Ed column in the Sunday New York Times, Edward Snowden commented on the victory:

"Privately, there were moments when I worried that we might have put our privileged lives at risk for nothingthat the public would react with indifference, or practiced cynicism, to the revelations.

Never have I been so grateful to have been so wrong.

Two years on, the difference is profound. In a single month, the N.S.A.’s invasive call-tracking program was declared unlawful by the courts and disowned by Congress. After a White House-appointed oversight board investigation found that this program had not stopped a single terrorist attack, even the president who once defended its propriety and criticized its disclosure has now ordered it terminated.

This is the power of an informed public.

Ending the mass surveillance of private phone calls under the Patriot Act is a historic victory for the rights of every citizen, but it is only the latest product of a change in global awareness. Since 2013, institutions across Europe have ruled similar laws and operations illegal and imposed new restrictions on future activities. Sign Thanking Snowden on a busThe United Nations declared mass surveillance an unambiguous violation of human rights. In Latin America, the efforts of citizens in Brazil led to the Marco Civil, an Internet Bill of Rights. Recognizing the critical role of informed citizens in correcting the excesses of government, the Council of Europe called for new laws to protect whistle-blowers."

Edward Snowden: "Our Right to Privacy Remains Under Threat"

In the same NYT Op Ed piece, Snowden goes on to say:

"Though we have come a long way, the right to privacy — the foundation of the freedoms enshrined in the United States Bill of Rights — remains under threat. Some of the world’s most popular online services have been enlisted as partners in the N.S.A.’s mass surveillance programs, and technology companies are being pressured by governments around the world to work against their customers rather than for them. Billions of cellphone location records are still being intercepted without regard for the guilt or innocence of those affected. We have learned that our government intentionally weakens the fundamental security of the Internet with “back doors” that transform private lives into open books. Metadata revealing the personal associations and interests of ordinary Internet users is still being intercepted and monitored on a scale unprecedented in history: As you read this online, the United States government makes a note."

Edward Snowden, NYT, June 7, 2015

USA Freedom Act Replaces the Patriot Act

Not surprisingly, one day after three major provisions of the Patriot Act expired on June 2nd, Congress passed replacement legislation--the USA Freedom Act.

The US Senate passes the USA Freedom Act

The US Senate passed the USA Freedom Act with a vote of 67 to 32. President Obama signed it into law within a few hours.

 

What did US citizens gain? And where does the new law fall short in protecting citizens' rights against unlawful search and seizure (the 4th amendment of our constitution)?

Dan Froomkin of The Intercept explained in a post entitled: USA Freedom Act: Small Step for Post Snowden Reform, Giant Leap for Congress (The emphasis is mine):

"The Freedom Act explicitly reauthorizes — or, rather, reinstates, since they technically expired at midnight May 31 — other programs involving the collection of business records that the Bush and Obama administrations claimed were authorized by Section 215 of the Patriot Act. In fact, even the bulk collection of phone records, which was abruptly wound down last week in anticipation of a possible expiration, may wind up again, because the Freedom Act allows it to continue for a six-month transition period.

And while the Freedom Act contains a few other modest reform provisions‚ such as more disclosure and a public advocate for the secretive Foreign Intelligence Surveillance Court, it does absolutely nothing to restrain the vast majority of the intrusive surveillance revealed by Snowden.

It leaves untouched formerly secret programs the NSA says are authorized under section 702 of the FISA Amendments Act, and that, while ostensibly targeted at foreigners, nonetheless collect vast amounts of American communications. It won’t in any way limit the agency’s mass surveillance of non-American communications."

What was the "Giant Leap for Congress" to which Froomkin alludes?

"This marks the end of a vast expansion in surveillance authorities that began almost immediately after the 9/11 terror attacks. Indeed, the Freedom Act represents the single greatest surveillance reform package since the 1970s.

But that’s a low bar.

After 14 years of rubber-stamping executive-branch requests for pretty much anything related to terrorism, Congress had an extraordinary moment of opportunity to pass genuine reform."

Dan Froomkin, The Intercept

Stop Spying Protester

Nothing has Changed!

According to Andrew Napolitano, a former judge of the Supreme Court of New Jersey and an analyst for the Fox News Channel, explained in "Lies the Government is Telling You: The 'Compromise' USA Freedom Act Fails to Curtail US Spying" published in the Washington Times on June 10th (again, the emphasis is mine):  

"By permitting one section of the Patriot Act to expire and by replacing it with the USA Freedom Act, the federal government is taking credit for taming beasts of its own creation.

In reality, nothing substantial has changed.

Under the Patriot Act, the NSA had access to and possessed digital versions of the content of all telephone conversations, emails and text messages sent between and among all people in America since 2009. Under the USA Freedom Act, it has the same. The USA Freedom Act changes slightly the mechanisms for acquiring this bulk data, but it does not change the amount or nature of the data the NSA acquires.

Under the Patriot Act, the NSA installed its computers in every main switching station of every telecom carrier and Internet service provider in the United States. It did this by getting Congress to immunize the carriers and providers from liability for permitting the feds to snoop on their customers and by getting the Department of Justice to prosecute the only CEO of a carrier who had the courage to send the feds packing.

In order to operate its computers at these facilities, the NSA placed its own computer analysts physically at those computers 24/7. It then went to the U.S. Foreign Intelligence Surveillance Act (FISA) Court and asked for search warrants directing the telecoms and Internet service providers to make available to it all the identifying metadata — the times, locations, durations, email addresses and telephone numbers used — for all callers and email users in a given ZIP code or area code or on a customer list."

NSA, Central Security Service, US Cyber Command

"The first document revealed by Edward Snowden two years ago was a FISA court search warrant directed to Verizon ordering it to make available to NSA agents the metadata of all its customers — more than 113 million at the time. Once the court granted that search warrant and others like it, the NSA computers simply downloaded all that metadata and the digital recordings of content. Because the FISA court renewed every order it issued, this arrangement became permanent.

Under the USA Freedom Act, the NSA computers remain at the carriers’ and service providers’ switching offices, but the NSA computer analysts return to theirs; and from there they operate remotely the same computers they were operating directly in the Patriot Act days. The NSA will continue to ask the FISA court for search warrants permitting the download of metadata, and that court will still grant those search warrants permitting the downloading. And the NSA will continue to take both metadata and content."....

Come Back with a Warrant

"When politicians tell you that the NSA needs a court order in order to listen to your phone calls or read your emails, they are talking about a FISA court order that is based on government need — not a constitutional court order, which can only be based on probable cause. This is an insidious and unconstitutional bait and switch."

Andrew Napolitano, The Washington Times, June 10th, 2015

What Can we Do to REALLY End Surveillance?

We need to remain vigilant against the surveillance state and to work on new laws that will protect our privacy.

Beware Cybersecurity Legislation

Within 10 days of the passage of the USA Freedom Act, Senator Mitch McConnell attached a cybersecurity amendment to a defense policy bill. Luckily, the sneaky amendment didn't pass. According to Jennifer Steinhauer of the New York Times, "The measure, which failed, 40 to 56, was similar to an expansive bill passed by the House two months ago that would push companies to share access to their computer networks and records with federal investigators." She is referring to the Cyber Information Sharing Act of 2015 (or CISA)--a bill, that according to Gabe Rottman of the the ACLU:

"[CISA] says that any and all privacy laws, including laws requiring a warrant for electronic communications, and those that protect financial, health or even video rental records, do not apply when companies share “cybersecurity” information, broadly defined, with the government. For much more detail, please see this blog and coalition letter and a deep dive by the Open Technology Institute.

Once that information is shared, it will be automatically disseminated government-wide, including to outfits like the National Security Agency, CIA, and FBI, where it can be used for garden-variety law enforcement investigations and intelligence activities. It can also be used to investigate and prosecute whistleblowers under the Espionage Act, the World War I-era law that has been used by the Obama administration to go after more national security “leakers” than all other presidencies combined.

In short, it makes mincemeat of basic notions of due process. But that’s not all. This isn’t just a problem in the abstract for 'privacy.' It would actually make things less secure."

Hang On, Isn't This the Same Government whose Info Gets Routinely Hacked?

The ACLU's Gabe Rottman points out the irony in the fact that the US Government's personnel systems were hacked last week, and personal information of all non-military Federal employees (including their social security numbers) were stolen.

He raises (and answers) an important question about cybersecurity:

"If the federal government can’t secure the most sensitive intelligence and military data against spies and cyber-thieves, what does that mean for the vast amount of personal information that would flow to the government from the private sector under CISA? The answer is obvious. The honeypot would grow all that much sweeter. Not only would you have a one-stop shop for government worker information, you would have a new trove of personal information about all of us, held in what have proved to be tempting and vulnerable targets for the baddest of actors."

Stop Mass Spying

As customers/citizens, we need to remain vigilant in order to protect our rights against unlawful search and seizure. It's one thing to voluntarily post family pictures on Facebook, explicitly trading anonymity for social connections. It's another thing entirely to have government agencies and criminal hackers intercepting your private communications on the phone and via email and your business, financial, health, and other personal records. That's not the society any of us wants to live in!

1 comment


  • sjordan
    Scott Jordan on June 13, 2015 at 11:19 a.m.

    Excellent summary and essay, Patty.

    Unfortunately it almost doesn't matter what Congress does to rein in mass surveillance within our borders.  Agencies in other countries have long been happy to do what US law hinders.  This has been the case for a long while, for example with Echelon in the 1990s after it morphed from surveilling Soviet sigint to surveilling ...everyone.

    More than two long years after Snowden's whistleblowing, this week's legislative activity in Washington finally represents a start.  

    But not a finish.  Liberty necessitates persistence and vigilance, and lost liberty is difficult to regain.  So let's keep up the fight!

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