On Thursday, the Second Circuit Court of Appeals ruled that the National Security Agency’s (NSA) bulk metadata collection is excessive, and goes beyond its legal authority. Congress didn’t okay it legally, so it’s not okay, according to Judge Gerald Lynch. (Hell, Congress barely knows what’s going on with surveillance, so how could it have okayed it?)
Section 215 of the PATRIOT Act, which allegedly legalizes the dragnet surveillance program, is set to expire next month. This is terrific news. This is a chink in the security state’s armor, and the sturdy crowbar of attention might be able to pry that armor open to a significant degree. But that might require a concerted effort on the part of the American public. Unfortunately, they have an appalling attention span even towards issues that directly affect them such as this one. And they have a tendency to grimly permit any policy which is sold as “keeping them safe” from enemies. But at least there are some aversions to NSA spying according to poll numbers, even if they tend to depend on who is president, and even if Edward Snowden’s lawbreaking is seen as improper by a disappointingly large number of people. (He made this lawsuit possible, however, which must not be forgotten.)
Oddly enough, Judge Lynch was not ruling on constitutionality of the program – whether it violates the Fourth Amendment. One could certainly make the argument that it does. But what was in question was simply whether bulk surveillance was legal under Section 215. Judge Lynch said no. Simply put, the government cannot show that every single phone call is potentially “relevant” to terrorist investigations.
This decision is good news. And it will be intriguing to see how it plays out. Brand new Attorney General Loretta Lynch did not reveal whether the Department of Justice (DOJ) would appeal the decision. She did, however, say that she was “not aware” of any Fourth Amendment violations that came out of this program after the Obama administration’s tune-up of it. Lynch seems to be somewhat interested in at least talking about reform, though it remains to be seen whether such talk is serious, or merely a rhetorical concession to reform advocates.
Going hard after the NSA is progress, but the more information is revealed about other types of domestic spying in the US, the more it becomes clear that No Such Agency is only a small piece of the pie. And none of this should be about warped interpretations of legality, or the fact that yes, a more informed Congress could more overtly legalize mass surveillance. (So what if they did? It would still be a violation of Americans’ rights.)
After all, the Drug Enforcement Administration (DEA) is a spy agency in its own right, with terrorism and violence no longer the enemy, but narcotics. The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and the Federal Bureau of Investigation (FBI) watch, entrap, and create crimes that they only sometimes manage to partly clean up. The Department of Homeland Security (DHS) is spying on Americans as well.
And it’s not just the feds, dear conservatives, not by a long shot. Thanks to federal laws, strings, money, and technology, local police departments can bring Quantico home. Thanks to license plate tracking en masse, police can paint a picture of a driver’s activities and habits. The terrifyingly opaque use of Stingrays or IMSI catchers – which can track phones or indiscriminately pick up phone data from any user in an area – is only now being hinted at, thanks to various lawsuits, and a few sensible judges. Earlier this week, the DOJ pledged to look into the practice – some 20 years after Stingrays were first invented. Meanwhile, the devices are being deployed by local police departments all over the US, along with nondisclosure agreements from the FBI about their use.
There are so many different ways the state and law enforcement can and do violate our vital right to be unobserved and untracked. Hell, the very existence of the Third Party Doctrine throws American privacy rights under the bus. We live online. The idea that because we willingly share data and information with a third party, we have chosen to have less privacy to violate continues to be a dangerous one.
In short, we have a staggering amount of work to do if we really want to protect our privacy rights. Technology has always been at war with the Fourth Amendment. Court decisions have always lagged behind law enforcement and government bureaucrats’ habit of preferring to ask for legal forgiveness later, as opposed to explicit permission now.
And yet, we suddenly have a judge deciding that under the terms of the set-to-expire PATRIOT Act, the spying that has already been happening is illegal. If this decision isn’t overturned, that means the government would have to actively legalize bulk metadata collection instead of just continuing to coast by with this broad justification.
We had good news on Thursday. The trick right now is to stop the PATRIOT Act from coming back, and to also stop false solutions such as the USA Freedom Act from passing as well. Most people with credibility on the subject – such as Fourth Amendment mega-fan Rep. Justin Amash (R-Mich.) – argue that USA Freedom in its current iteration would simply codify mass metadata spying, making it truly legal for the first time. After we tackle those, then we need to fix every federal agency, local law enforcement, and state institution that violates our privacy every day. No sweat.
Lucy Steigerwald is a contributing editor for Antiwar.com and a columnist for VICE.com. She previously worked as an Associate Editor for Reason magazine. She is most angry about police, prisons, and wars. Steigerwald blogs at www.thestagblog.com.