© Josh Sager – June 2015
At 7:44 PM yesterday night, the NSA officially (read: made the unconfirmed claim that they) shut off the bulk metadata collection program that captures time, date, location and duration data for every phone call made in, to, or from the United States. This shutdown was caused by the fact that, for the first time in over a decade, the NSA doesn’t have the legal authorization to collect such data.
It is important to note two very important caveats to this great news: First, we only have the NSA’s word that they have shut down the program and they have a long history of lying to conceal their intelligence activities from the American people (ex. when James Clapper lied under oath to the floor of the Congress about the existence of this very program before the Snowden leaks). Second, this is unlikely to last, as the legal authorizations that have lapsed are widely agreed upon by both major political parties and will likely be signed back into law in short order.
The supposed shutdown of Big Brother’s metadata program on Sunday was caused by an expiration of several key provisions within the Patriot Act that had been interpreted (secretly) to justify bulk data collection. The Senate was unable to reauthorize these provisions before they lapsed due to opposition by Rand Paul (R-KY). Paul refused to sign onto a unanimous consent procedural reauthorization to the provisions, thus forcing the reauthorization to include a full debate and voting process. During this process he, and other civil liberties advocates, will be able to filibuster and force a debate over the merits of this program into the public eye, while forcing Senators to take an on-the-record vote in favor of bulk domestic spying.
While Paul’s delay of these provisions are temporary and may be politically motivated (he is running for president and this provides him a great deal of press), he is certainly doing the right thing and should be given a lot of credit. The NSA and intelligence-industrial complex that has developed in recent decades have massive influence and wealth (not to mention access to every phone call and internet search you have ever made), making any stand against them courageous.
During the next few weeks, activists must use this opportunity to lobby their Senators and demand that they vote down bulk data collection provisions. Politicians must be made aware that, now that they will have to take an official vote in favor of the domestic spying apparatus, they will be vulnerable to attack in any future primary. The left despises domestic spying on civil liberties grounds, as well as the long history of the power establishment using domestic spying to attack liberal causes (ex. infiltrating the civil rights movement, wiretapping leftists who may be “communist sympathizers,” persecuting war protesters, etc.). Similarly, the right is terrified of big government oppression and absolutely hates it when the federal government is given more power to interfere with their lives.
In short, any politician to have their name attached to a return of these Patriot Act provisions will face attacks from both flanks, particularly in highly-contested primaries. While I am cynical about our chances of stopping the return of these provisions in the long-term, there is the possibility that public pressure could catalyze greater change through the courts.
In addition to forcing Senators to take a stand on this, bringing the bulk collections debate into the light makes it far easier for the American public to bring legal cases against covert surveillance programs. Initially, the government relied upon the secrecy of domestic spying programs to deflect legal cases. They made the argument that nobody had standing because nobody could conclusively prove that they, personally, had ever been spied upon.
When Edward Snowden revealed these programs to the American people, this legal argument started to fall apart, and a public debate over this issue could complete its demise. If the Senate passes a bill that explicitly allows the collection of every American’s metadata without a warrant, then every American has standing to object and raise a challenge in court. As no honest reading of the Constitution’s 4th Amendment could possibly support these programs, this could lead to the unraveling of the law.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” — The 4th Amendment to the United States Constitution
The temporary loss suffered by the NSA yesterday must be the start of a greater fight to permanently defeat the idea that every American should be watched at all times, just because there is a chance that somebody might be a terrorist. This will be a long fight and every victory will require constant backstopping to prevent our spying agencies from wresting back powers that they should never have in a free society.