SAN ANTONIO, June 5, 2015 – The USA Freedom Act has now passed the Senate and been signed into law by President Obama, and many conservatives have heralded it as a victory for Americans’ Fourth Amendment rights.
However, this is a bill that Obama and the intelligence community, including the NSA, have endorsed — which should have raised some eyebrows among conservative pundits and members of Congress who are now cheerleading for it.
According to numerous civil liberties groups who drafted a letter to Congress explaining the issues with the USA Freedom Act, the act will do nothing but maintain the status quo. Unfortunately, there was a bill that was introduced in the House of Representatives, the Surveillance State Repeal Act, that would have truly reinstated Americans’ right to be left alone, and the vast majority of Congress shamefully chose to ignore it.
According to Fox News, the most important thing that the USA Freedom Act would accomplish is that it would “resume the NSA data collection program, but only for a transition period of six months. After that, the legislation would no longer allow the NSA to sweep up Americans’ records in bulk. Instead, it would leave the records with phone companies and give the government the ability to seek access with a warrant.”
Other than that, the act really doesn’t impact Americans’ privacy rights, and the NSA will have no problem continuing to get warrants for whatever records it wants from the secretive FISA Court, which acts as almost a rubber stamp for the NSA’s requests for warrants.
A bipartisan coalition of 60 advocacy groups, whistleblowers, startups and web companies who drafted and signed the letter to Congress requesting that members of Congress drop their support for the USA Freedom Act included the following language:
The USA Freedom Act has significant potential to degrade, rather than improve, the surveillance status quo… At best, even if faithfully implemented, the current bill will erect limited barriers to Section 215, only one of the various legal justifications for surveillance, create additional loopholes, and provide a statutory framework for some of the most problematic surveillance policies, all while reauthorizing the Patriot Act.
To truly understand the problems with the USA Freedom Act it is necessary to have at least a basic comprehension about where the NSA claims to get its legal authority to justify the warrantless domestic surveillance it conducts. Without getting too technical, the NSA uses three primary sources to justify its unconstitutional, warrantless domestic surveillance: Section 215 of the Patriot Act, Section 702 of the 2008 FISA Amendments Act and Executive Order 12333. The USA Freedom Act only tinkers around the edges of Section 215 of the Patriot Act while leaving the others untouched.
Section 215 of the Patriot Act deals solely with government collection of phone metadata that captures only which phone numbers are in contact with each other and for how long the contacts last. The legal justification for the other programs the NSA runs is much more concerning and much more destructive of our privacy rights. Surveillance carried out pursuant to Executive Order 12333 and Section 702 of the 2008 FISA Amendments Act can include collection and storage of content as well as metadata, and most actions taken under Executive Order 12333 don’t even require a warrant.
EO 12333 requires the NSA to limit its domestic surveillance to information obtained in an “incidental” manner. To say the intelligence community has adopted a very broad and novel definition of the word “incidental” would be a severe understatement. William Binney, a 36-year employee of the NSA turned whistleblower, had the following to say about EO 12333 when he spoke with ARS Technica: “Most collection of U.S. domestic communications and data is done under EO 12333, section 2.3 paragraph C in the Upstream program. They claim, near as I can tell, that all domestic collection is incidental. That’s, of course, the vast majority of data.”
Without much, if any, press coverage there were two courageous members of the House of Representatives who actually stood up for Americans’ Fourth Amendment rights. Rep. Thomas Massie, R- Ky., and Rep. Marc Pocan, D-Wisc., co-sponsored the Surveillance State Repeal Act, which would repeal every post-9/11 legal authority the NSA uses to collect warrantless domestic data, including the entirety of the Patriot Act, the 2008 FISA Amendment Acts and as much of Executive Order 12333 as legally possible.
This bill, which Republican leadership refused to endorse or even bring up for a vote, would obliterate the current industrial-surveillance state in America. Sen. Rand Paul must be credited for bringing critical questions about Americans’ privacy rights to the forefront of peoples’ minds, but in that same vein, he must be criticized for refusing to advocate for a solution to the problem.
If Rand Paul had used his time in the spotlight to endorse and advocate for the Surveillance State Repeal Act, rather than solely to criticize the status quo, the bill would have had a much better chance at seeing the light of day in Congress. By not supporting an alternative solution, Paul knew that either the entire Patriot Act or the watered down USA Freedom Act would eventually become law. Viewed through this lens, Paul’s actions seem to be much more self-serving than courageous, especially when one considers that the keystone of Paul’s presidential campaign is his alleged support for ending unconstitutional domestic data collection.
Regardless of Paul’s motives, the greatest scrutiny of this issue needs to be directed towards conservatives who gave full-throated endorsements of the USA Freedom Act, knowing that it ignored the root cause of the problem. Unfortunately, Sen. Mike Lee, R-Utah, and Sen. Ted Cruz, R-Texas, two consistent and principled conservatives, both uncharacteristically strongly supported the USA Freedom Act.
The freedom and liberty that Americans have allowed to erode away since 9/11/01 is breathtaking.
The following quotation from George Orwell’s prescient novel “1984” should inspire great concern that America has begun the slide down the slippery slope of totalitarianism that has doomed every world superpower that came before this great nation of ours:
There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever the wanted to. You had to live — did live, from habit that became instinct — in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.