Mimesis Law
17 October 2017

Political Parties Unite To Snoop Through Your E-Mails

May 31, 2016 (Mimesis Law) – There is an unprecedented level of political disagreement these days. In fact, that may be too polite. People are just jackasses. Opposing political parties don’t trigger debate, they trigger hate.

So it would seem good to see the Democrats and Republicans getting together on something and showing people how a united front can achieve an important goal. Except when that goal is the continued erosion of Fourth Amendment rights.

Last week, the Senate Intelligence Committee approved the 2017 Intelligence Authorization Act. The Chairman of the Committee, North Carolina Republican Richard Burr, and the Vice Chairman, California Democrat Dianne Fienstein, came together to explain how this bill is all about the citizens. The object, apparently, is to keep Americans safe.

“The threat of terrorism remains high, so it’s vital that we provide intelligence agencies with all the resources they need to prevent attacks both at home and abroad,” Feinstein said.

According to The Intercept, the text of the bill is still secret. The official word is the bill protects us from terrorists. And the Russians. And does other cool stuff necessary to battle those terrorists and Russians and whoever else show up to attack us.

The war on terrorism requires sacrifice. You are going to need to give up rights as part of the war effort. Of course, anyone who has ever had to fight the terrorists or Russians or drug dealers knows that there is one particular part of the Constitution that is a thorn in the side of the FBI as it goes about protecting us. The Fourth Amendment. It’s everywhere. The right to be free from unreasonable search and seizure makes it pretty damn hard to unreasonably search and seize people. It’s a problem. But one that can be solved with a secret bill.

Last week’s approval paves the way to avoid silly things like the Fourth Amendment.

A provision snuck into the still-secret text of the Senate’s annual intelligence authorization would give the FBI the ability to demand individuals’ email data and possibly web-surfing history from their service providers without a warrant and in complete secrecy.

If passed, the change would expand the reach of the FBI’s already highly controversial national security letters. The FBI is currently allowed to get certain types of information with NSLs — most commonly, information about the name, address, and call data associated with a phone number or details about a bank account.

National Security Letters are a type of “administrative subpoena,” which is a fancy term for “subpoena not requiring the approval of an annoying judge.” National Security Letters are slick. When an FBI agent needs one, it gets approved from … another FBI agent. This cuts out the burden of having to bother with a judge. Not that judges are much of a protection against Fourth Amendment violations, but at least it’s something.

National Security Letters were originally intended just as they were named. The letters were limited to use against foreign governments and agents of foreign governments. But the USA PATRIOT Act changed all that. The Act, named in such a way only a communist or an actual terrorist could argue with it, relaxed the standard for the NSL’s. They could be used against pretty much anybody, as long as there was some link to international terrorism or espionage. Importantly, they can be signed by a Special Agent in Charge of an FBI field office.

One FBI agent tells the other FBI agent there is a terrorism connection so they need the letter. And that’s that. The letters are secret, so the FBI is in charge of protecting your Fourth Amendment rights. From the agency seeking to violate those rights. Which is also the FBI. What could possibly go wrong?

Oregon Senator Ron Wyden was the lone dissenting vote and had a lot to say about exactly what could go wrong. Like, for example, the fact the bill doesn’t really accomplish anything.

“This bill takes a hatchet to important protections for Americans’ liberty,” Wyden said following the vote. “This bill would mean more government surveillance of Americans, less due process and less independent oversight of U.S. intelligence agencies. Worse, neither the intelligence agencies, nor the bill’s sponsors have shown any evidence that these changes would do anything to make Americans more secure…” 

The new bill would allow the collection of email records with an NSL. This expansion of federal surveillance powers would then essentially cover all of the ways you talk to people. And while the bill is secret, Wyden and others hint there is far more at stake than just email records.

Wyden did not disclose exactly what the provision would allow, but his spokesperson suggested it might go beyond email records to things like web-surfing histories and other information about online behavior. “Senator Wyden is concerned it could be read that way,” Keith Chu said.

It’s unclear how or when the provision was added, although Sens. Richard Burr, R-N.C., — the committee’s chairman — and Tom Cotton, R-Ark., have both offered bills in the past that would address what the FBI calls a gap and privacy advocates consider a serious threat to civil liberties.

“At this point, it should go without saying that the information the FBI wants to include in the statue is extremely revealing — URLs, for example, may reveal the content of a website that users have visited, their location, and so on,” Andrew Crocker, staff attorney for the Electronic Frontier Foundation, wrote in an email to The Intercept.

“And it’s particularly sneaky because this bill is debated behind closed doors,” Robyn Greene, policy counsel at the Open Technology Institute, said in an interview.

As more and more of our life is conducted online, the government obviously wants more and more power to watch it. But this debate has nothing to do with modern day communication methods. It’s the same old argument. The government wants the least amount of oversight in conducting surveillance against its citizens.

The Fourth Amendment was born of the British government’s repeated abuse of search and seizure powers in colonial times. The idea that the government could do whatever it wanted in support of its goals was hated before the Revolution and rejected after it. Not a single modern day advancement has changed that.

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