The sun might set on an NSA data collection program at the end 2019, but will that mean a weaker or smaller surveillance state?
March 25, 2019
By: Bobby Casey, Managing Director GWP
There is a marginal possibility that the NSA is going to back off a little. In other words: a few crumbs are about to fall off the table so everyone get ready to scurry for their nugget of freedom!
I’ve learned not to get too excited when the federal government eases up on their foothold, because it’s never “freedom for freedom’s sake”. There’s usually some strings attached.
Recall the legitimization of cryptocurrency came with a lot of intrusive baggage and suspicion from the feds. It’s all but become a very convoluted game of “gotcha”. This web of suspicion has various laws and regulations that all culminate into a presumption that you are a money laundering terrorist. It was better when cryptocurrencies weren’t officially recognized by the government.
This new “420 Bill” going through the Senate calling for full legalization of marijuana will come with taxes and regulations that will probably bear a close resemblance to those attached to alcohol.
It’s hard to know if these are just traps or money making schemes or a little bit of both. In both cases the government stands to gain quite a bit through their statutes.
Small federal wins were made on the asset forfeiture front. We mentioned the Timbs v Indiana case regarding Tyson Timbs, where asset forfeiture made it impossible for him to serve his own sentence and pay the fines he needed to. He won that case earlier this year.
This ruling on asset forfeiture is particularly relevant because while it breathes life back into the 8th Amendment, it won’t stop asset forfeiture. People will still be dragged through protracted court battles for their property, bickering over what constitutes “excessive”.
Likewise, the NSA technically has limits the data it can collect. After the Edward Snowden revelations of all the data it was collecting, the “Freedom Act” was passed in 2015 which reined in the massive data collection, requiring the agency to subpoena specific suspects’ data with a judge’s permission.
The NSA couldn’t manage to color within those lines, and was still gathering data beyond the scope of its own authority… by a LOT!
“Yet the scale of collection remained huge: The program gathered 151 million records in 2016, despite obtaining court orders to use the system on only 42 terrorism suspects in 2016, along with a few left over from late 2015. In 2017, it obtained orders for 40 targets and collected 534 million records.”
Consequently, it has shut down a portion of its system that analyzes domestic calls and texts:
“The National Security Agency has quietly shut down a system that analyzes logs of Americans’ domestic calls and texts, according to a senior Republican congressional aide, halting a program that has touched off disputes about privacy and the rule of law since the Sept. 11 attacks.
“The agency has not used the system in months, and the Trump administration might not ask Congress to renew its legal authority, which is set to expire at the end of the year, according to the aide, Luke Murry, the House minority leader’s national security adviser.”
It could just be that congress lets the sun set on this program in December as it is set to do unless they vote otherwise. The fact that this system hasn’t been used in nearly six months, and the US has somehow managed to dodge terrorist attacks in that time frame, speaks to the original purpose of the program which was “national security”.
This is somewhat good news right? The NSA backing off a surveillance program certainly does loosen the vice grip a little.
All of this stems from Section 215 of the Freedom Act. So much focus has been given to data collection “relevant” to terrorist plots, that another aspect has gone relatively unnoticed: “tangible things”.
“Section 215 allows the government to obtain a secret court order requiring third parties, such as Internet providers and financial institutions, to hand over business records or any other ‘tangible thing’ if the Foreign Intelligence Surveillance Court (FISC) deems them ‘relevant’ to an international terrorism, counterespionage, or foreign intelligence investigation.”
What is yet unknown is what happens if Congress doesn’t address this at all before it expires? Do things go back to their pre-9/11 state? That’s where the government could, “collect only a narrow range of business records (not communications records) only from a limited set of companies such as transportation common carriers and other lodging, storage and vehicle facilities, and only if it could make the specific showing that the records belonged to an ‘agent of a foreign power.’”
What if they only allow the data collection to expire, but keep the “tangible things” clause? What will that look like?
Regardless of where this all goes, remember there are myriad redundancies in the laws that will easily fill this void. Much like the aforementioned Timbs case, this doesn’t go away. It sets a precedent, but the behavior doesn’t change much on the government side of things.
The surveillance state is a redundant matrix of policy that doesn’t require all its parts in order to exist. This is how you achieve the ridiculous statistic that most Americans unwittingly commit three felonies a day. This is also how innocent individuals get ensnared in the dragnet of laws.
Laws that were sold as designed to keep people safe are making average Americans victims of those laws!
There is a lot of work left to do with regards to dismantling the surveillance state, if in fact that is even a reasonable goal. There really is no point in remaining vulnerable while you wait for that to happen, however.
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