Congress Gives Uncle Same “ESP” – Enhanced Surveillance Powers

In 1964, Ayn Rand wrote that American society was quickly heading toward what she called “the stage of ultimate inversion,” in which “the government is free to do anything it pleases, while the citizens may act only by permission.” Rand, who came to America to escape the tyranny of the Soviet Union, saw in mid-20^th Century America a country following a similar course as the one she escaped; in which government ruled by “brute force” and increased its power as it eroded individual rights.

Now, more than three decades after her death, and with the age of the Internet in full swing, Rand’s fears of government “inversion” have become truer than ever. Last week’s bipartisan congressional passage of the FY 2015 Intelligence Authorization Act is clear proof of how far we have travelled down the road Rand predicted.

Since the mid-1990s, when anti-terror initiatives championed initially by the Clinton Administration and GOP leaders in the Congress provided the foundation for the massive federal surveillance apparatus in which we now live, privacy watchdogs have warned about the mission creep of federal authority deemed necessary to “protect us.” However, it was not until the 2013 leaks by National Security Agency contractor Edward Snowden and journalist Glenn Greenwald, exposing the breadth and technological sophistication of the government’s surveillance programs, that the public finally recognized what the blank check of “trust us” was really costing us.

As it does with every scandal it faces, the Obama Administration defended against the allegations with the usual gobbledygook, masked as promises of reform. Compounding the problem, the refusal by Republicans in Congress to so much as even debate limiting domestic spying, ensured that in spite of the overwhelming public outcry to the contrary, nothing would be done to limit the abuses. In fact, as last week’s vote on the FY 2015 Intelligence Authorization Act demonstrates, the only actions Congress and the Administration favor are those that expand government surveillance powers.

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Buried in Section 309 of the Intelligence Authorization Act for Fiscal Year 2015 are -- for the first time in “public” statute -- procedures for how federal agencies can retain “incidentally acquired communications” obtained through domestic surveillance programs, including communications known to be between U.S. citizens with absolutely no ties to “terrorism’ (which had served as the justification for the initial authority). As Rep. Justin Amash (R-Mich.) explained in a Facebook message detailing the truly odious nature of the bill’s expedited passage, it was only after he quickly organized his legislative staff for a review that anyone noticed “one of the most egregious sections of law [Amash] encountered during [his] time as a representative.”

For years, the government’s ability to surreptitiously collect, analyze, store, and disseminate the private communications of U.S. citizens not suspected of violating any laws was based on dubious legal memos, classified decisions of the secret FISA courts, assumed powers in Executive Actions, and “plausible denials” concocted by federal officials responsible for conducting the very actions they were defending.

Congress’ most recent and feeble attempt at “reforming” that process in fact has enshrined in law those powers that, until now, existed in legal limbo. Any attempt at actual reform through court challenges now has been rendered even more difficult.

On the surface, Section 309 may appear an attempt to place a finite limit on how long government can retain the records of digital communications of U.S. citizens obtained without warrants or court orders. However, as the saying goes, the devil is in the details. Exceptions to the five-year limit carved out in the procedures, such as for communications “reasonably believed to have a secret meaning” or -- a government favorite -- communications “necessary to protect the national security of the United States,” renders moot any meaningful limitations.

But perhaps the most problematic language in Section 309 is the exception made for communications “reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency,” which provides the legal authority to continue creating a digital rap sheet on virtually any U.S. citizen spanning federal, state and local governments, without any real consideration as to whether a crime has been committed.

Last week in this column, I explained how the government’s over-criminalization serves as a mechanism to control the citizenry. The government leverages minor, impossible-to-avoid criminal offenses to ensure cooperation when it so desires for either regulatory control or financial gain. The erosion of personal privacy through powers such as those found in the Intelligence Authorization Act serves only as a “multiplier” -- moving us as at an accelerating rate toward that inversion state against which Ayn Rand warned us many decades ago.