Can the Government Claim ‘State Secret’ Privilege to Spy On You?
As news outlets report on Chinese hackers stealing the National Security Agency (NSA)’s hacking tools, it’s fair to say that most of the media completely ignored a late April court decision that justified NSA surveillance. Thanks to our friends at the Tenth Amendment Center, this piece of news did not go unnoticed.
The April 25 decision was handed down by U.S. District Judge Jeffery White, who stated that the NSA can use state secrets privilege to prevent individuals from suing the agency over its warrantless mass-surveillance programs. The case, which is dated back to 2008, has been in the court system since then, bouncing back and forth between federal courts. And now, thanks to White, we know the justice system has simply accepted the Department of Justice’s arguments against the plaintiffs.
During court hearings, officials stated that revealing whether the five plaintiffs had their data collected to the public would threaten national security, which White accepted, adding that “the court cannot issue a judgment without exposing classified information.” Furthermore, he added, the evidence submitted by the plaintiffs wasn’t enough to prove that the NSA violated the Wiretap Act and the Electronic Communications Privacy Act. Despite his claim, one piece of evidence brought forward by the plaintiffs included a 2003 document from a former AT&T technician that showed just how the firm routed private internet date through a secret room run by the NSA.
The judge also declined to use a 2009 NSA draft report leaked by Edward Snowden, the former NSA contractor who vouched for the document’s legitimacy in a sworn declaration, by saying that because the government didn’t authenticate it, it was not a valid document.
As explained by TAC’s Mike Maharrey, the NSA had provided the court with evidence regarding the plaintiffs’ claims while telling the judge that the evidence shouldn’t be used. Otherwise, the feds stated, the case would “jeopardize national security.”
If anything, this serves as a great example of why we shouldn’t rely on the justice system to protect our rights and make sure federal agencies aren’t abusing their power.
As Maharrey put it, “the federal government investigated the federal government and determined there was no way for the federal government to determine if the federal government did anything wrong without jeopardizing the federal government’s federally protected secrets.”
While the plaintiffs’ lawyers, who are with the Electronic Frontier Foundation (EFF), called the case a “Catch-22,” there’s absolutely nothing contradictory about this situation.
The NSA never used lawful methods to obtain private information, as the agency has long relied on obscure blanket authorizations to spy on Americans. This isn’t a bug in the system but the rule, as government and the bureaucracy that runs it always puts government first.
Officials have no incentives to care for our privacy and property, as it will continue to justify its abuses through fear-based campaigns. Unfortunately, the only way around this is to break up and make the federal government increasingly less powerful.
During court hearings, officials stated that revealing whether the five plaintiffs had their data collected to the public would threaten national security, which White accepted, adding that “the court cannot issue a judgment without exposing classified information.” Furthermore, he added, the evidence submitted by the plaintiffs wasn’t enough to prove that the NSA violated the Wiretap Act and the Electronic Communications Privacy Act. Despite his claim, one piece of evidence brought forward by the plaintiffs included a 2003 document from a former AT&T technician that showed just how the firm routed private internet date through a secret room run by the NSA.
The judge also declined to use a 2009 NSA draft report leaked by Edward Snowden, the former NSA contractor who vouched for the document’s legitimacy in a sworn declaration, by saying that because the government didn’t authenticate it, it was not a valid document.
As explained by TAC’s Mike Maharrey, the NSA had provided the court with evidence regarding the plaintiffs’ claims while telling the judge that the evidence shouldn’t be used. Otherwise, the feds stated, the case would “jeopardize national security.”
If anything, this serves as a great example of why we shouldn’t rely on the justice system to protect our rights and make sure federal agencies aren’t abusing their power.
As Maharrey put it, “the federal government investigated the federal government and determined there was no way for the federal government to determine if the federal government did anything wrong without jeopardizing the federal government’s federally protected secrets.”
While the plaintiffs’ lawyers, who are with the Electronic Frontier Foundation (EFF), called the case a “Catch-22,” there’s absolutely nothing contradictory about this situation.
The NSA never used lawful methods to obtain private information, as the agency has long relied on obscure blanket authorizations to spy on Americans. This isn’t a bug in the system but the rule, as government and the bureaucracy that runs it always puts government first.
Officials have no incentives to care for our privacy and property, as it will continue to justify its abuses through fear-based campaigns. Unfortunately, the only way around this is to break up and make the federal government increasingly less powerful.
Hoping users will be completely OK with paying an extra 20 percent to find a driver in rush hour, state lawmakers hope to send the extra dough to the Department of Public Safety, which would then create drunk driving prevention programs. These “programs” include putting more cops on the streets so more checkpoints are put in place. But DUI checkpoints are practices that undoubtedly violate the 
At the time the Founders came up with the wording contained in the Fourth Amendment, England and its parliament saw national security as an excuse to invade everybody’s privacy. By looking at the sovereignty of the individual as the basis of private property law, the Founders went on to write that warrants were to be issued based only on probable cause of crime.
By reauthorizing FISA, however, Trump showed the Constitution, the piece of paper he swore to uphold, nothing but contempt.
As Napolitano explains, FISA “[added] another way for the government to invade privacy when its wish is to surveil people for national security purposes — a return to general warrants — as opposed to solely gathering evidence of crimes.” As a result, the government ends up collecting the haystack to look for the needle. Instead of looking at the crime and its causes first to find a culprit, these general warrants give the government more data than it can handle.
Thanks to Trump, Washington’s secret court will continue to issue general warrants with the excuse of keeping us safe from those “dangerous” foreigners. But instead of non-citizens, it is us who pay the price.
As Napolitano explains, FISA warrants authorize governments to surveil “all landlines, mobile devices and desktop computers in a given area or ZIP code … without any evidence of crime or even suspicion.” With 99 percent of the warrants the government requests being granted by FISA courts, one can only imagine how much data on all of us the government already has in its hands. Can you imagine how much more it’s about to collect now thanks to Trump?
As libertarians, we’re aghast at the callous disrespect the FISA reauthorization shows toward our Fourth Amendment rights, but the truth is likely that most Americans will gladly give up some of these protections for a more effective surveillance state against foreign and domestic threats. People are becoming more afraid of terrorists and “dangerous” foreigners than the threat of tyranny.
The Surveillance State Repeal Act (H.R. 1466) was 
“I am proposing that this plant [marijuana] be regulated like tomatoes, jalapenos or coffee. Current marijuana policies are not based on science or sound evidence, but rather misinformation and fear. All that God created is good, including marijuana. God did not make a mistake when he made marijuana that the government needs to fix. Let’s allow the plant to be utilized for good — helping people with seizures, treating warriors with PTSD, producing fiber and other products — or simply for beauty and enjoyment. Government prohibition should be for violent actions that harm your neighbor — not of the possession, cultivation, and responsible use of plants.” — Texas Republican state representative David Simpson, who describes himself as a “constitutional conservative,” explaining his marijuana re-legalization bill, KETK NBC TV, Tyler, Texas.
