The Not-So-Freedom Act Is Up for Renewal

The debate about whether to reauthorize sections of the USA FREEDOM Act of 2015 has been underway, as these sections are set to expire at the end of this year. Although this has not been a major headline in the mainstream media, which may be partly due to the obsession with the impeachment procedures of one politician who will eventually leave office and be replaced by another leader who will violate the Constitution in some way, the importance of this issue should not be overlooked. The Freedom Act was a watered down version of the surveillance activities that were taking place prior to the Snowden revelations, and although these reforms were a move in the right direction, there has still always been the potential for abuse. While Americans focus on trivial matters, civil liberties are on the line and potentially being violated.

Although the Freedom Act officially outlawed the bulk collection of telephony metadata, the same data could be obtained from the telecommunications providers if needed for an investigation . The NSA recently ended its Call Detail Records (CDR) program because it was not able to successfully utilize it within the narrowly defined parameters included in the act , however, the intelligence agencies are still arguing that the program should be reauthorized just in case it is necessary again. Congress has been scrutinizing these claims, and even Senator Dianne Feinstein opined, "It’s really not clear to me why a program with limited intelligence value and clear compliance problems should be reauthorized."

The government will pretend that programs like these that violate the Fourth Amendment (unreasonable searches and seizures) enhance national security, yet, it is often unable to explain how this is the case, or it pleads “classified.” With the CDR program, for example, there has been no evidence presented that this has prevented a terrorist plot, but there is a clear potential for abuse of power and violations of the Constitution. President Trump is pushing for this program to be permanently reauthorized, and if it is, we could end up taking steps backwards when it comes to civil liberties.

Also up for renewal next month are the “roving wiretap,” “business records,” and “lone wolf” provisions. These have not changed much since their inception subsequent to the 9/11 attacks, and although these are a concern for civil liberty violations, there will likely be little objection to their passing. These provisions allow the government to continue investigating a target if he or she attempts to mislead authorities (for example, switching to a new service provider), to search any business records that are considered vital to an investigation, and to investigate a foreign person who is not acting on behalf of a country or terrorist group but is suspected to be in the process of committing a terrorist act alone, respectively.

Although the government will often claim that it adheres to the law and uses these things sparingly and that they are necessary to foil potential terrorist plots, there are real Fourth Amendment concerns with the provisions in the Freedom Act. When the government argues that the reason that only about 0.03 percent of all requests made to the Foreign Intelligence Surveillance Court (FISC) are denied is because the Department of Justice vets the applications in such a manner that the government always has a solid case, it is not only arrogant, but it also misses the point. There is absolutely no room in FISC applications for an opposing opinion or any transparency in the process, and the lack of an adversarial procedure means that the government will almost always get what it wants in secret. The government just has to prove that information to be collected is “'relevant’ to an international terrorism investigation" with no probable cause necessary. The government can also order mass collection of data without specifying a particular piece of data or person to be searched. All of this violates the Fourth Amendment, despite claims by the government that the Fourth Amendment does not apply in certain cases or that the secret FISC meets Fourth Amendment standards.

As Congress debates the merits or flaws of the Freedom Act, let us at least have a discussion as Americans on whether we cherish our natural rights or whether we believe a sense of strong national security should take precedence over everything. If we do not stand up for our rights, the government will continue to gradually take them until we are no longer able to exercise them. This degradation of the relationship between the government and the people will only lead down the road to totalitarianism. Let us not forget the sacrifice of Edward Snowden and others who have fought to provide us with information that is vital to the interests of the American people.

Thank you for reading, and please check out my book, The Global Bully, and website.
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Published on November 19, 2019 02:57
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