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The Debate Over NSA Spying is Finished. Or is it?

in Liberator Online, News You Can Use, Personal Liberty, Property Rights by Jackson Jones Comments are off

On Tuesday, the United States Senate gave final passage to the USA Freedom Act, but not without drama on the floor of the upper chamber. Majority Leader Mitch McConnell, R-Ky., offered three amendments that, if passed, would have weakened the bill.

With the support of hawks in the Senate Republican Conference, McConnell proposed amendments that would have increased the transition period from three to six months, removed essential transparency requirements, and required private companies to notify the federal government if they changed their data retention policies. Each of the amendments failed, falling short of the majority needed for passage.

After the USA Freedom Act passed with significant bipartisan support, a visibly irritated McConnell railed against the bill from the floor, lecturing his colleagues that the Fourth Amendment, which protects Americans against “unreasonable searches and seizures,” doesn’t cover phone records.


“No content. No names. No listening to the phone calls of law-abiding citizens. We are talking about call data records,” said McConnell. “And these are the provider’s records, which is not what the Fourth Amendment speaks to. It speaks to: ‘The right of the people to be secure in their persons, houses, papers and effects.’”

Part of the legal justification for bulk collection of Americans’ phone records is grounded in a little-known 1979 case, Smith v. Maryland, in which the Supreme Court ruled that the installation of the pen register on the phone of Michael Lee Smith without a warrant was not a violation of his Fourth Amendment rights. But as Jim Harper of the Cato Institute has explained, this interpretation of the case is wildly misleading.

“It is not possible to argue honestly that the facts of Smith are anything like the NSA’s bulk data collection. The police had weighty evidence implicating one man. The telephone company voluntarily applied a pen register, collecting analog information about the use of one phone line by that one suspect,” Harper wrote in August 2013. “I can’t think of a factual situation that could be at a further extreme than NSA’s telephone calling surveillance program.”

Add to Harper’s point that Section 215 of the USA Patriot Act allowed only the collection of records related to specific investigation into terrorism. It didn’t permit the bulk collection of all phone records of every American, a fact that was noted recently by the Second Circuit Court of Appeals.

Although several organizations and tech companies backed the USA Freedom Act, the bill wasn’t without opposition because it didn’t go far enough to protect Americans’ privacy. Sen. Rand Paul, R-Ky., made his opposition clear because he wanted the ability to offer amendments to strengthen the bill.

Others, like Rep. Justin Amash, R-Mich., believe the USA Freedom Act merely shifts the method of bulk collection from the National Security Agency to private phone companies. The USA Freedom Act, Amash said after it passed the House of Representatives in mid-May, “actually expands the statutory basis for the large-scale collection of most data.”

But with debate on the USA Freedom Act now over, at least for now, President Barack Obama’s signature on the bill, some may be asking what’s next. The Guardian reported on Wednesday that the administration is seeking to restart the bulk collection program “temporarily” to transition “the domestic surveillance effort to the telephone companies that generate the so-called ‘call detail records’ the government seeks to access.”

So, just to be clear, the administration will, according to The Guardian, “argue it needs to restart the program in order to end it.” Add that one to the growing list of Orwellian statements from this administration, and put it right under “if you like your health plan, you can keep it” and “never let a good crisis go to waste.”

GOP Denounces NSA Spying as Unconstitutional; Calls for Repeal, Investigation

in Liberator Online by James W. Harris Comments are off

(From the Intellectual Ammunition section in Volume 19, No. 3 of the Liberator Online. Subscribe here!)

Hey: the Republican Party National Committee has gone all Edward Snowden on us.

In what TIME magazine calls “the latest indication of a growing libertarian wing of the GOP,” the Republican National Committee (RNC) passed a Resolution on January 24 calling for Republicans in Congress to conduct a public investigation into the “gross infringement” of Americans’ rights by National Security Agency programs and to repeal much of the NSA’s PRISM surveillance programs on Americans.

The “Resolution to Renounce the National Security Agency’s Surveillance Program” denounces what it called the “largest surveillance effort ever launched by a democratic government against its own citizens… the surveillance of U.S. citizens on a vast scale and [the monitoring of the] searching habits of virtually every American on the internet…”

The remarkable document, while not binding on any GOP member, passed by an overwhelming majority voice vote.

The Resolution boldly declares that “the mass collection and retention of personal data is in itself contrary to the right of privacy protected by the Fourth Amendment of the United States Constitution” and says “unwarranted government surveillance is an intrusion on basic human rights that threatens the very foundations of a democratic society and this [PRISM] program represents a gross infringement of the freedom of association and the right to privacy and goes far beyond even the permissive limits set by the Patriot Act…”

Further, the Republican National Committee “encourages Republican lawmakers to enact legislation to amend Section 215 of the USA Patriot Act, the state secrets privilege, and the FISA Amendments Act to make it clear that blanket surveillance of the Internet activity, phone records and correspondence — electronic, physical, and otherwise — of any person residing in the U.S. is prohibited by law and that violations can be reviewed in adversarial proceedings before a public court…” and they urge Republican lawmakers “to call for a special committee to investigate, report, and reveal to the public the extent of this domestic spying…”

This committee, says the RNC, “should create specific recommendations for legal and regulatory reform to end unconstitutional surveillance as well as hold accountable those public officials who are found to be responsible for this unconstitutional surveillance…”

Good stuff! And there’s more. You can read the whole Resolution at TIME’s web site.

However, you’d also be wise to be skeptical, as journalist John Glaser astutely notes at’s blog. After all, reminds Glaser, this is “the party that stood by President George W. Bush when he secretly (and illegally) ordered the NSA to spy on the domestic communications of Americans without any warrants at all.”