Will US Citizens Win Back their Right to be Secure Against Unreasonable Search & Seizure?

Posted Wednesday, May 27, 2015 in Customer Experience by Patricia Seybold

The Customer Revolution appears to be glimmering back to life in the U.S.A. I usually avoid touching on politics in my articles and posts for customer-centric execs, but when it comes to citizens' rights, these seem to me to be important to all of us who value the Voice of the Customer.

We're standing on the brink of a historic moment! I'm cautiously optimistic that US citizens may win back our constitutional right to prevent unlawful search and seizure. If the US Congress does not act before June 1st, 2015, most of the Patriot Act, including Section 215, which was purported to authorize the tracking of all phone calls, will expire.

The Customer Revolution

Citizens' Rights have been Violated

This is both a US constitutional issue, but it is also a brand/"customer" issue to my mind. US citizens (for whom the government is supposed to be working) never authorized or approved, or even knew about, legislation that enabled our government's security infrastructure -- requiring compliance from all the major US-based phone companies and Internet service providers -- to log every phone call we make: whom we called, when we called, and how long we talked. This bulk collection of our phone records (and other activities) has apparently been going on since the Patriot Act was passed in 2001. U.S. citizens' communications are being unlawfully monitored and U.S.-domiciled businesses can no longer guarantee their customers that their phone calls and online interactions are not being surveilled by U.S. government spies.

Legal Ruling that Bulk Data Collection is not Authorized

Finally, on May 7th 2015, a U.S. Federal Court of Appeals ruled that Section 215 of the Patriot Act never authorized the bulk collection of information about Americans' telephone calls. The case against the Directors of National Intelligence, National Security Agency, Central Security Service, FBI and the Secretary of Defense and the Attorney General was brought by the ACLU and argued on September 2, 2014.

Edward Snowden

Conor Friedersdorf of the Atlantic summarized this landmark ruling in an article he published on May 12th, 2015 entitled "The Vindication of Edward Snowden" in which he said, in part [Emphasis is mine]:

"A panel of judges on the Second Circuit Court of Appeals ruled last week that the program Snowden exposed was never legal. The Patriot Act does not authorize it, contrary to the claims of George W. Bush, Barack Obama, Michael Hayden, Keith Alexander, and James Clapper. 'Statutes to which the government points have never been interpreted to authorize anything approaching the breadth of the sweeping surveillance at issue here,' Judge Gerard E. Lynch declared. 'The sheer volume of information sought is staggering.'

Other conclusions reached by the three-judge panel include the following:

  • 'The interpretation that the government asks us to adopt defies any limiting principle.'
  • 'We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language.There is no evidence of such a debate' ...
  • 'Congress cannot reasonably be said to have ratified a program of which many members of Congress—and all members of the public—were not aware … only a limited subset of members of Congress had a comprehensive understanding of the program'...
  • 'Finding the government’s interpretation of the statute to have been ‘legislatively ratified’ under these circumstances would ignore reality.'"

Conor Friedersdorf, The Atlantic

Edward Snowden was, of course, the whistleblower who alerted the world to the extent of the massive surveillance being undertaken by the NSA under the supposed legal cover provided by the Patriot Act. Conor makes the point that, although Snowden broke the law in exposing secrets, he should not be prosecuted for blowing the whistle on this violation of the US Constitution's 4th Amendment:

4th Amendment

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Senator Rand Paul Filibuster

Although I am not politically aligned with Senator Rand Paul, I am very grateful to him for the 10 1/2-hour quasi-filibuster he and fellow Senators waged to keep the Senate from voting to restore the Patriot Act or to vote on the USA Freedom Act. Because he took a stand and ran the clock down, the Patriot Act will (hopefully) expire on June 1st.

Rand Paul's Quasi Filibuster Raised Public Awareness

As Trevor Timm of the Guardian points out, Senator Paul (Republican-Libertarian) and Senator Wyden (a Democrat), and others who spoke for over 10 hours the evening of May 20th provided an important service in summarizing many of the reasons that neither the Patriot Act, nor the US Freedom Act (which was designed to replace it), should be enacted. Here are the five great points Rand and Wyden made about NSA government surveillance according to Timm, (again, the emphasis is mine):

  • "The NSA can use the Patriot Act to collect in bulk a lot more than phone records...Wyden emphasized ...the NSA ... can essentially turn all our phones into tracking devices 24 hours a day, despite the law saying nothing of the sort....He strongly suggested the agency also believes it can collect in bulk millions of innocent Americans’ credit card records, medical records, financial and bank records, and gun records, using the same law as well."

Senator Ron Wyden

  • "The USA Freedom Act doesn’t cover everything...the [new Patriot Act replacement] would replace bulk collection with a system to search the data held by telephone companies on a case-by-case basis, [but] there are major parts of the spy agency’s legal authority that .... the bill does not amend."
  • "Paul repeatedly brought up the Fisa Amendments Act which allows officials to collect material including search history, the content of emails, file transfers and live chats revealed by Edward Snowden. The NSA also abuses the same law to scan large portions of emails coming in and out of the United States in secret."
  • "The USA Freedom Act also doesn’t touch executive order 12333, which governs how the NSA can collect supposedly purely overseas communications. Whistleblower John Napier Tye harshly criticized this order in the Washington Post, saying that based on information he saw as someone with top-secret clearance as a high-ranking State Department official, Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215 [of the Patriot Act].”
  • "NSA surveillance is used for a lot more than just for terrorism cases...the Drug Enforcement Administration (DEA) gets wiretaps from the NSA and hands over the information to local cops, who then pretend they got the information from somewhere else besides the NSA."
  • "Using the Patriot Act for mass surveillance is illegal no matter what Congress does...Paul ...wondered out loud how Congress could even be considering renewing an authority for a program that would be illegal for the NSA to continue anyway." [Given the May 7th Court opinion.]

    "There are plenty of other civil liberties' concerns Congress has yet to deal with....Paul brought up another section of the Patriot Act not up for renewal, known as 'sneak and peek warrants.' These court orders allow law enforcement officers to essentially break into suspects’ homes without their knowledge, and ...have been used more than 99% of the time in drug cases."

    Trevor Timm, The Guardian

Will the U.S. Senate Act before June 1st?

But what if the Senate goes back into session on May 31st as they are supposed to, and votes to extend the Patriot Act at the last minute? Or, instead, votes to approve the now-watered down USA Freedom Act? (For more information on the current provisions of the USA Freedom Act, see the Judiciary Committee's summary.)

As is often the case when it comes to US political machinations, I found the UK Guardian's explanation of what to expect to be the most lucid. In an article, titled "McConnell can't save the NSA's surveillance program," Trevor Timm writes:

"McConnell announced after the post-midnight vote that he would call the Senate back into session next Sunday evening, 31 May, to vote on both bills again – literally hours before the bulk collection authorization will expire....."

"It’s mind boggling that passing the USA Freedom Act instead of reauthorizing the bulk collections provisions of the Patriot Act is a debate at all: the milquetoast reform bill that 42 Senators scuttled last night is so mild and uncontroversial that even the NSA is perfectly happy to live with it. Those Senators would apparently rather attempt to re-authorize a surveillance program under a law that was ruled illegal by an appeals court – so any reauthorization would likely fail to allow the NSA to continue collecting Americans’ phone records anyway. And, since the Obama Administration confirmed today that it hadn’t even applied to the Foreign Intelligence Surveillance (Fisa) Court for an extension to continue the phone records program, the NSA will stop collecting millions of innocent Americans phone records on 1 June regardless of what the Senate does....."

"So remember this week, when you hear Administration officials or Senators or pundits make dire predictions about how the expiration of Section 215 will spell disaster for the country: they’re probably lying. If anything, the coming deadline means that the currently watered-down privacy protections of the USA Freedom Act should get much stronger, as Republican Senator Rand Paul has been imploring all week. There are many ways of strengthening the reform bill that would make absolutelysurethat it ends bulk collection of any kind and that the NSA can never reinterpret public laws in secret ever again."

"The thing is that, no matter what Mitch McConnell and his intelligence community friends try to pull in the next week, the bulk collection of Americans’ records authorized by Section 215 is coming to an end – at least temporarily. So as soon as the clock strikes midnight next Sunday, even if the Senate fails to pass the USA Freedom Act again, the status quo will still change. The question the Senate must answer with legislation will no longer be whether to continue a mass surveillance program that already exists: it will be whether to create a new mass spying program."

"And considering that Congress can barely agree to vote for the names of post offices anymore, the chance of them returning to the NSA the powers that they know vast majorities of the American public hate is about as good as it was that McConnell would find consensus Friday night: virtually none."

Trevor Timm, The Guardian

What Actions should we Take before Sunday?

I hope Trevor Timm is right. But I am not as sanguine. It's up to us, we the people--American citizens--to let our Senators know that we do not want our 4th amendment rights violated.

As a concerned citizen and a business owner, I am grateful to Senator Paul's and Senator Wyden's activism and to the useful analysis by the UK's Guardian newspaper. We all need to remain vigilant this weekend and let our Senators know that we don't want the Patriot Act extended, nor the USA Freedom Act passed until it deals with these other encroachments on our right to be secure against unreasonable search & seizure.

What action should you take? If you're a US citizen, let your U.S. Senator know how you feel about renewing/extending the Patriot Act and approving the current USA Freedom Act without more public debate.


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