New rules under development by the Obama administration will make it even easier for federal agencies like the FBI and DEA to access troves of phone calls, emails and location data collected by the NSA on millions of people, including Americans, and pass it on to local cops for everyday investigations, or basically any other purpose that suits them.
Proponents of federal spying inevitably defend any objection to mass warrantless surveillance by playing the terrorism card.
The NSA must be able to sweep up virtually everybody’s electronic data to protect America from terrorist attacks, so the argument goes. This carries a great deal of weight, especially in the wake of tragic bombings in Paris and Brussels. Many Americans brush off the constitutional violations and invasion of privacy inherent in NSA spy programs because they honestly believe they only target terrorists.
But in fact, the vast majority of information dredged up by the U.S. spy apparatus ends up in the hands of state and local law enforcement for use in routine criminal investigations. Instead of “fighting terrorism,” the American surveillance state primarily serves as a way to circumvent the Fourth Amendment and prosecute the unconstitutional “War on Drugs.”
We’ve known for several years that a DEA Special Operations Division utilizes warrantless data collected by the NSA for routine drug investigations. Reuters revealed the extent of NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through the SOD. These cases “rarely involve national security issues.”
Former NSA technical director William Binney said the feds share information gathered without a warrant and direct the local police force to make an arrest. Using a process known as “parallel construction,” investigators then build their case using normal policing techniques, getting warrants for information they’ve already obtained. The process serves to hide the illegally gathered information, creating the illusion of a legitimate case.
As Washington Post columnist Radley Balko put it, parallel construction is “a bureaucratically sterilized way of saying big stinking lie.”
Binney called this “the most threatening situation to our constitutional republic since the Civil War.”
A new policy quietly under development by the Obama administration will make it even easier for the NSA to share this information with no privacy screening. According to a New York Times report, “Robert S. Litt, the general counsel in the office of the Director of National Intelligence, said that the administration had developed and was fine-tuning what is now a 21-page draft set of procedures to permit the sharing.”
Under the proposed rule changes, federal agencies such as the FBI would gain direct access to streams of information gathered by the NSA, including emails, phone calls and location data. They would then be free to pass along this information to state and local law enforcement.
All of this can happen without any congressional or judicial oversight under a Reagan era executive order known as EO 12333. ACLU of Massachusetts blog Privacy SOS explains the ramifications of these changes.
“In short, domestic law enforcement officials now have access to huge troves of American communications, obtained without warrants, that they can use to put people in cages. FBI agents don’t need to have any ‘national security’ related reason to plug your name, email address, phone number, or other ‘selector’ into the NSA’s gargantuan data trove. They can simply poke around in your private information in the course of totally routine investigations. And if they find something that suggests, say, involvement in illegal drug activity, they can send that information to local or state police. That means information the NSA collects for purposes of so-called ‘national security’ will be used by police to lock up ordinary Americans for routine crimes.”
Simply put, these new rules will codify parallel construction – formalizing what has been happening under the radar for years. Implementation of these new procedures will effectively cement routine violations of the Fourth Amendment into federal law.
Balko observed that in one sense, bringing this mass data sharing into the open might count as a good thing. Attorneys in states that have passed laws limiting the collection of warrantless data will find it easier to challenge and disallow this type of shared information. Nevertheless, as Balko notes, the fact the feds no longer feel the need to hide this kind of data sharing seems pretty ominous.
“It’s all another sobering reminder that any powers we grant to the federal government for the purpose of national security will inevitably be used just about everywhere else. And extraordinary powers we grant government in wartime rarely go away once the war is over. And, of course, the nifty thing for government agencies about a ‘war on terrorism’ is that it’s a war that will never formally end.”
These new rules coming down the pike make it even more imperative that states take action to prohibit state and local law enforcement from obtaining warrantless data. Robust restrictions on law enforcement access to information collected without a warrant will make such data collected by the NSA and shared with state and local cops inadmissible in court. State electronic data privacy protection laws not only have impact at the state level, they also indirectly but effectively address these federal surveillance schemes.
Sadly, millions of Americans continue to shrug off this daily, blatant disregard of constitutional restrictions on federal power. Ironically, the same people who scream bloody murder at the mere mention of federal gun control as a violation of the Second Amendment wholeheartedly embrace these routine violations of the Fourth Amendment. It almost seems they don’t realize the Second and Fourth Amendment make up parts of the same constitution.
Shred one, you shred the other.