Sunday, August 18, 2013

Surveillance and the U.S.A. Patriot Act

The Foreign Intelligence Surveillance Court (FISC) administers warrants for U.S. government surveillance. The FISC has a track record of rubber stamping U.S. domestic and international surveillance, with no follow-up. As shown in the photo, the FISC operates out of the E.Barrett Prettyman U.S. Courthouse located in Washington, D.C. (Photo source; Wikimedia).
In recent years the American public has had to rely on U.S. citizens like Edward Snowden to expose the secrets of government agencies which interfere with individual liberties in the name of security. Most explicit is the exposition of the U.S. National Security Agency (NSA) which tactically accesses numerous telecommunication companies' database. Through wiretapping and surveillance techniques the NSA produces a compilation of patterns, key words or connections aimed at targeting suspect individuals. Those persons who could fall under “suspect” can vary in definition.

In May 2013, the Washington Post and BBC published documents from Edward Snowden, showing and explaining the NSA Washington branch's numerous breaches of U.S. privacy laws and unwarranted surveillance. In order to understand the breakdown in U.S. processes, below is an explanation of how certain U.S. surveillance investigations were made legal and others not.

U.S. government breach of American civil liberties in recent years can be traced back to the emergence of the revised U.S.A. Patriot Act post 9-11. Notable changes to the Act include an expanded jurisdiction of the Foreign Intelligence Surveillance Courts, the NSA and the FBI. Because the NSA and FBI are investigating a unique subsection of security threats, representatives of these agencies simply need to make clear that the warrant for surveillance will be used to look into foreign threat. In essence the amended Patriot Act allows officials to search the property knowing and unknowing of the subject in question. Those found to be suspect has also been broadened in the reforms:

  • "Section 505 of the Patriot Act mandates that no such investigation of an American can be predicated exclusively on activities protected by the First Amendment" (Gorham-Oscilowski & Jaeger, 2008).

In other words, the U.S. Constitution First Amendment, which protects the individual freedom of religion, speech, assembly, press and petition of government, can be bypassed for apparent security.

The Foreign Intelligence Surveillance Court (FISC), the body responsible for granting warrants for investigations based on a "person acting on behalf of foreign powers" has the legal authority to grant warrants to check such person’s electronic activity, business records and personal property (Strickland, 2003). However, most often than not the FISC approves warrants which grant information possessed by a third-party; internet providers, telephone and cell-phone companies etc. According to the Constitutional Rights Foundation these U.S. surveillance agencies do not need to show their findings and no further inquiries into their surveillance are asked by FISC. In addition, the Constitutional Rights Foundation found not a single warrant which was denied to the NSA ("The Patriot Act, 2013).

According to an inquiry published by the Washington Post and BBC, the NSA under executive orders illegally gathers call records, data, and electronic information. The surveillance operation coded as STELLARWIND, allows surveillance without warrant was initiated under the Bush Administration, and continued under the Obama Administration. Within the same document, the NSA covered up their illegal activity by categorizing such activity as human or operational errors.

The U.S.A. Patriot Act (2001) under the Chapter Title, "Enhanced Surveillance Procedures", is the source of the erosion of American's civil liberties, not to mention of the basic freedoms of non-Americans. The American Civil Liberties Association identifies Sections 213, 214, 215, and 218 of this part of the U.S.A. Patriot Act as particularly troubling. More specifically, Section 214 establishes the bypass of the First Amendment for the sake of security:

  • "... a certification by the applicant that the information likely to be obtained is foreign intelligence information not concerning a United States person or is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution" (U.S.A. Patriot Act, Section 214(2)). (Bold by the FDA).

In addition, as example,

  • "(i) It shall not be unlawful under this chapter for a person acting under color of law to intercept the wire or electronic communications of a computer trespasser transmitted to, through, or from the protected computer, if
  • (III) the person acting under color of law has reasonable grounds to believe that the contents of the computer trespasser's communications will be relevant to the investigation" (U.S.A. Patriot Act, Section 217(2)(i)(III).
So someone like Edward Snowden as a NSA intelligence consultant can using the vague notion of "reasonable grounds" access the personal communications of anyone to be perceived a trespasser of a protected computer, and the personal communications of anyone with the perceived trespasser ad infinitum.

U.S.A. Patriot Act allow agencies like the NSA, FBI and the courts to side step individual’s right to free speech and right to a "speedy and public trial", and breach individual privacy. All such activities deeply obstruct the U.S. Bill of Rights. The American founding fathers, in this case, particularly James Madison, tactically produced the Bill of Rights to ensure that big government does not hinder individual and state rights. Not knowing, Madison’s Federalist Paper's introduced an age long debate which remains at the center of US democracy today. That is, the degree of liberty given to individuals verses the central government. The eventual conclusion made by the American founding fathers was to enforce a people dominant democracy, whereby the "sovereign people must be the ultimate external judge of their servants' conduct in office", not the other way around (Barnett, 2013).

References

Barnett, R, E. (2013, July 11). "The NSA's Surveillance is Unconstitutional." The Wall Street Journal, 11 July 2013, final ed.:A.13

Garvey, S. (2013). "Snowden--U.S. Headed for Tyranny or Already There?". Foundation for Democratic Advancement. Retrieved from http://foundationfordemocraticadvancement.blogspot.ca/search?q=edward+snowden

Gorham-Oscilowski, U., & Jaeger, P, T. (2008). "National Security Letters, the USA Patriot Act, and the Constitution: The tensions between national security and civil rights".Government Information Quarterly 25.4 (2008): 625-644. DOI: 10.1016/j.giq.2008.02.001

Strickland, L, S. (2003). "Civil Liberties vs. Intelligence Collection: The secret Foreign Intelligence Surveillance Act Court speaks in public", Government Information Quarterly 20.1 (2003): 1-12. DOI: 10.1016/S0740-624X(02)00132-6

The Patriot Act: What is the proper balance between National Security and Individual Rights?. (2013, August 15). Constitutional Rights Foundation.

U.S.A. Patriot Act. (2001). Retrieved from http://www.gpo.gov/fdsys/pkg/PLAW-107publ56/pdf/PLAW-107publ56.pdf







Ms. Mansharn Toor, Researcher Foundation for Democratic Advancement













Mr. Stephen Garvey, Executive Director Foundation for Democratic Advancement






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