In this article, I thought I would provide some additional context for the FISA Amendments Act that was first signed into law in 2008, renewed without any changes in 2012, and now up for reauthorization and expansion in 2018 through 2023.
The majority of Americans accept the fact that intelligence agencies like the NSA have a duty to safeguard national security, provide foreign intelligence that informs the government and bring to light threats against American citizens and US Persons protected by the Constitution.
However, there is a big difference between taking the steps necessary to achieve these objectives (while providing legitimate protection), and taking a different set of steps that broadly collect data against Americans (and others, including non-Americans and US Persons), with no affiliation to terrorists or other criminal elements, without probable cause and without consent.
In addition, it's probably fair to assume that the majority of American people (even if silent) expect the NSA to practice and uphold US laws and the Constitution at all times (including the 4th Amendment), even when dealing with information from inside the US. In the past, National Security Directives like USSID 18 provided NSA with understandable, detailed and explicit recipe-like guidelines and procedures on the probable cause surveillance of US citizens and US Persons in relation to foreign intelligence and conducted in compliance with FISA, US law and the Constitution (as a result of willful violations and abuses of national security powers in the past against citizens like Operation Shamrock and Minaret at NSA, FBI's notorious COINTELPRO and several others).
Over the years since 9/11, a number of disclosures made by whistleblowers and in press reporting (and more recently with the revelations of Edward Snowden), strongly suggest that NSA has repeatedly violated the 4th Amendment, governing statutes and broken the law on a broad scale through programs and operations involving secret mass and bulk surveillance programs (both metadata and content) that includes domestic data on Americans. Consequently, NSA has eroded the trust and the larger government social contract between itself and the very citizens and people it is chartered to protect and serve in the national interest.
However, the secretive nature of NSA (and a largely ineffectual oversight system), have precluded an effective accounting of NSA's 'deep state' mass surveillance activities. We simply do not know to this very day the full scale, scope and extent of NSA's violations with regard to surveillance laws and the Constitution or even the range and reach of these programs (many still remain hidden and buried under various 'secret' authorities) -- although the Snowden disclosures (and earlier disclosures by former NSA whistleblowers, including myself) have provided clear and compelling evidence that NSA has gone far beyond its core mission.
Even the US courts are divided, given the extreme secrecy in how these programs actually work. One federal judge (Leon) earlier said that the bulk collection of telephone records was probably unconstitutional. Another judge (Pauley) said that the collection of these records was legal. And yet there is a huge difference between what is 'legal' and what is lawful and constitutional.
While the debates on NSA surveillance and privacy rights continue, the government has done a very poor job of assuring the American people that their privacy expectations and rights, as guaranteed by the Constitution, are met. Several members of Congress, journalists and privacy rights and liberty advocates question the effectiveness of the surveillance oversight 'legal' regime and framework (much of it ex post facto) and call for a strengthening of oversight mechanisms and reforms of the FISA-AA (most recently the USA Rights Act bill that failed in the House of Representatives) -- with a focus on the fact that current oversight mechanisms are increasingly ineffective and nullified and cannot prevent an abuse of surveillance powers.
Former President Obama's gathering of high tech leaders, the earlier NSA review group, and even the Privacy and Civil Liberties Oversight Board's earlier reviews of surveillance activities and programs were clearly a response to this outcry -- all triggered primarily by the Snowden disclosures on top of earlier surveillance revelations in the press, but much still remains hidden behind the veil of secrecy, executive-enabled state secrets privilege plus the use of yet 'other' authorities that remain in the 'deeper state' shadows, out of sight and largely opaque to any light.
Additionally, both the Obama and the Trump Administrations have fundamentally failed to justify NSA's vast electronic and often pervasively indiscriminate dragnet of people's data (and in partnership/complicity with large telcos/telecoms) and this mass dragnet's impact and influence on people's privacy rights. Its hollow assertions and appearances of legal compliance are characterized and colored by ambitious and authoritarian control language (and gratuitous fear mongering) as opposed to real legal opinion, except when the 'legal' opinion serves as a cloak and cover for those following orders when exposed.
However, America's credibility and standing as a nation respecting privacy rights at home and abroad has also been severely undermined not only in the United States, but overseas as well and will continue to erode until a full, complete and independent accounting of mass surveillance is made. Surveillance abuses must be brought to light, corrected and held accountable.
In addition, the debate we are still having today was so avoidable and unnecessary if NSA had not rejected approaches that provided safeguards over citizen and people's privacy rights with the very best of American ingenuity and innovation, while lawfully and legitimately providing superior intelligence and warning against actual threats to the US and the world.
In truth, the NSA has a history of violating the law too many times over approximately 60% of its existence -- an Agency literally created by the stroke of a presidential pen in secret under the Truman Administration in 1952 -- forming a very secret military organization not legislated into law with the mandate to collect foreign signals intelligence as a technical collection agency.
In writing this article, I was reminded of a memo circulated by NSA during the Presidential Transition Team in late 2000 seeking relief on the 4th Amendment probable cause standard with the excuse it was just too hard to follow in the digital age. And then 9/11 happened.
And right after 9/11, the Constitution and the 4th Amendment -- the very bedrock of the US as a Republic, was simply and quickly abandoned. NSA (with the approval of the White House) in the deepest of state secrecy, tossed aside the Constitution, the 4th Amendment and the FISA -- rendering all essentially null and void.
9/11 was an utter failure to keep people out of harm's way and the subsequent fear mongering and the sky is falling calls became the tragic excuse to use national security as the siren license and imprimatur to erode our liberties and personal rights in order to make people feel safe again. And yet the US government had the technology created by the very best of American ingenuity and innovation to counterpunch real threats (and analyze their networks through all source intelligence), far more effectively and for far less cost, (and all constitutional and in compliance with the 9/10 version of FISA). Instead they deliberately rejected them in favor of big multi-billion dollar programs, big data scooping and extraction techniques and authorized secret mass surveillance programs on a truly vast and extraordinary scale -- turning the US into the equivalent of a foreign nation for the pervasive warrantless seizing and searching of data using the mantra that the bigger the haystack the more needles it could find.
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