Mass Surveillance Called Illegal

by Stephen Lendman

In 2004, Congress established the Privacy and Civil Liberties Oversight Board (PCLOB). It did so to advise executive branch officials on these issues.

It was virtually moribund. It accomplished nothing under Bush. Nor during Obama's first term. In November 2013, it held its first meaningful hearing.

On January 23, it condemned mass surveillance. It called it illegal. It refuted administration claims. More on what it said below.

Pervasive spying is longstanding policy. It's worse than ever now. NSA watches everyone everywhere all the time.

Doing so is unconstitutional. Patriot Act provisions trample on Bill of Rights protections.

They compromise due process, habeas rights, free expression, association, and protection from unreasonable searches and seizures.

Section 215 oversteps and then some. It's misused. It's language is vague. It's deceptive. It's used to permit metadata-mining.

It allows police state investigatory practices. Doing so pertains to real or contrived suspects. It authorizes government access to "any tangible item."

Included are financial records and transactions, education and medical records, phone conversations, emails, other Internet use, and whatever else Washington wants to monitor.

Warrantless searches without probable cause are permitted. Doing so violates First Amendment rights. It's because secrecy is mandated. Suspects can't tell others what's happening to them.

FBI operatives can investigate anyone for any reason. They can do it based on what they say, write, or otherwise communicate with regard to groups they belong to or associate with.

Fourth and Fifth Amendment protections are violated by not telling targeted subjects their privacy was compromised.

PCLOB's report is titled "Report on the Telephone Records Program Conducted under Section 215 of the USA Patriot Act and on the Operations of the Foreign Intelligence Surveillance Court."

It's very detailed. It calls bulk collection of telephone records illegal. Doing so has a "chilling effect on the free exercise of speech and association," it said.

It's because "individuals and groups engaged in sensitive or controversial work have less reason to trust in the confidentiality of their relationships as revealed by their calling patterns."

It means "people engaged in wholly lawful activities - but who for various reasons justifiably do not wish the government to know about their communications - must either forgo such activities, reduce their frequency, or take costly measures to hide them from government surveillance."

"The telephone records program thus hinders the ability of advocacy organizations to communicate confidentially with members, donors, legislators, whistleblowers, members of the public, and others."

"For similar reasons, awareness that a record of all telephone calls is stored in a government database may have debilitating consequences for communication between journalists and sources."

PCLOB made important recommendations. According to the Electronic Frontier Foundation (EFF), its first one "says it all:"

It states:

"The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value."

"As a result, the Board recommends that the government end the program."

Obama's so-called Review Group on Intelligence and Communications Technologies agreed about mass surveillance going too far. It stopped short of urging its abolition. It failed to call it unconstitutional.

At the same time, it acknowledged the need for added privacy protections. Mass surveillance has no place in free societies.

"Now two (so-called) independent government panels, a bipartisan coalition in Congress, a federal judge sitting in open court, and the majority of the American public agree," said EFF.

Its staff attorney Nate Cardozo said "(T)he government's bulk collection of everyone's private phone records must end."

Other PCLOB recommendations include:

• immediately implementing additional privacy safeguards;

• enacting legislation letting the FISA court hear independent views;

• legislation permitting appellate review of its decisions;

• promoting transparency "to the maximum extent consistent with national security;"

• declassifying past FISA court decisions relating to significant questions of law, technology or compliance; and

• disclosing surveillance activities affecting the public.

Polls show most Americans oppose mass surveillance. They want their privacy protected.

They've grown tired of war on terror hype. They want more oversight of spying programs. They do nothing to keep America safe. Claiming otherwise doesn't wash.

"Based on the information provided to the Board," it said, "we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation."

"Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack."

EFF Legal Director Cindy Cohn said:

PCLOB's "report is a strong endorsement of the legal theories in our case, First Unitarian Church of Los Angeles v. NSA."

"Our case presents a challenge to the program on the grounds that the mass collection of Americans' phone records violates the First Amendment right to free association of our 22 client organizations."

They "rang(e) from Calguns Foundation to Students for A Sensible Drug Policy to Greenpeace."

EFF's case is currently pending in San Francisco federal court.

Its legislative analyst Mark Jaycox "welcome(d) the board's report on government surveillance practices."

It was its first meaningful one on anything in its decade of existence. Hopefully it won't be its last.

"It's an encouraging step that PCLOB is serving as the vigorous intelligence watchdog Congress intended," Jaycox added.

It'll take more than one significant report a decade to prove it. A follow-up one is coming.

It addresses NSA bulk collection. It does so under Section 702 of the FISA Amendments Act.

It permits warrantless data collection. It targets foreign and domestic communications. Deceptive language calls it "incidental collection." It's willful. There's nothing "incidental" about it.

It's systematic metadata-mining. It's done extrajudicially. It's without oversight. Until Snowden's revelations, it was secret. It's far more intrusive than previously believed.

Obama approved it. He did it secretly. FISA court operations are rubber-stamp. NSA has carte blanche. Whatever it wants it gets.

Privacy and transparency don't exist. Constitutional issues don't matter. Big Brother watches everyone. Doing so has no place in free societies. It's longstanding practice in America.

Note: Two Republican PCLOB members dissented. They defended mass surveillance. So did National Security Council spokeswoman Caitlin Hayden, saying:

"Specifically on the Section 215 bulk telephony metadata program, we disagree with the Board's analysis on the legality of the program."

In other words, it's key recommendations will be ignored. Expect no substantive changes to ongoing practices. Business as usual will continue.

On January 23, Snowden answered questions. Selective Twitter submissions were addressed.

He'd like to come home, he said. He can't. He's unprotected. He's charged under the long-outdated 1917 Espionage Act.

It "was never intended to be used against people working in the public interests and forbids a public interest defense," he said.

"(I)t means there's no chance to have a fair trial, and no way I can come home and make my case to a jury."

Mass surveillance discovered no terrorist plots. "There is simply no justification for continuing an unconstitutional policy with a 0% success rate," he said.

He's concerned about his safety. Attorney Anatoly Kucherena represents him.

"We see statements made by some US officials containing potential and implicit threats and openly calling for causing him bodily harm," he said.

"This is a real death threat, and we are concerned about the fact it has prompted no reaction from anybody."

"That is why we will file a request to the police. We will ask the law enforcers to examine and investigate all such statements."

He's constantly accompanied by private guards. It may not be enough. He knows he'll spend the rest of his life looking over his shoulder.

America is his worst enemy. Mass surveillance threatens everyone.

"I think a person should be able to dial a number, make a purchase, send an SMS, write an email, or visit a website without having to think about what it's going to look like on their permanent record," he said.

Free societies don't do these things. Police states prioritize them. Freedom in America is gravely compromised.

It's fast disappearing. Diktats replaced constitutional protections. Anything goes is policy. No one escapes NSA's spying eye. There's no place to hide.

Stephen Lendman lives in Chicago. He can be reached at lendmanstephen@sbcglobal.net.

His new book is titled "Banker Occupation: Waging Financial War on Humanity."

http://www.claritypress.com/LendmanII.html

Visit his blog site at sjlendman.blogspot.com.

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