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Congress To Revive Massive Electronic Spying Against Americans

You may remember that, back in the spring, Congress and the Obama Administration came together to end the massive spying program against the American people conducted by the NSA. They passed the USA Freedom Act, and with a name like that, the American people were assured that the abusive government surveillance of Americans’ emails, home videos, phone calls and other online activities was finally stopped.

Those few people who independently studied the legislation warned that there were huge loopholes that would allow government spying against Americans to continue, and would encourage corporate spying against Americans to expand. The corporate electronic surveillance required by the USA Freedom Act, it was warned, could be easily accessed by the government.

At the time, I wrote, “Given that the history of the NSA surveillance program is thick with deception and coverups, we would do well to regard the passage of the USA Freedom Act, and other proposed reforms, with skepticism. It may be that the passage of the USA Freedom Act leads to a shrinkage of electronic surveillance against people in the United States. On the other hand, it may, like the prohibition of Total Information Awareness by Congress a decade ago, only serve as a cover for continued massive unconstitutional seizure of the most personal details from our private accounts.”

Today, Congress is establishing the new electronic surveillance regime that privacy experts warned us about. Mike Masnick at Techdirt sounded the alarm yesterday about a dirty maneuver performed by congressional leaders with legislation called the Cybersecurity Information Sharing Act- CISA for short.

CISA was written to “improve cybersecurity in the United States through enhanced sharing of information about cybersecurity threats, and for other purposes”. What those “other purposes” are, we are just beginning to understand.

Opponents of CISA warned that the legislation would enable government agencies to grab personal communications records about Americans who aren’t suspected of any crime, without the specific search warrant that the 4th amendment to the Constitution requires. Never fear, said the bill’s defenders. There are safeguards in CISA that will prevent unconstitutional spying by the government on Americans’ private electronic communications, they said.

Reassured, the House and Senate passed two versions of CISA this autumn. All that remained was for a conference committee to reconcile the minor differences between these two versions, and then return the legislation to the two houses for final passage.

What’s actually happened is quite different than that. The conference committee did much more than just reconcile differences between the two versions of the bill. Instead, the committee radically altered the bill, removing all the safeguards that were used to earn its passage in the House and Senate.

The committee removed provisions that would have required personal information to be scrubbed from electronic information before it is given to government spying agencies.

The committee removed provisions that would have banned the NSA from receiving electronic information seized under CISA authority.

The committee removed provisions that would have prohibited information seized under CISA authority from being used for the purpose of surveillance.

The committee created a new loophole to cover the tracks of government spies, writing in an exemption to the Freedom of Information Act that prohibits individual Americans and journalistic organizations from petitioning for the release of information about which of their records the government has seized using CISA authority. Even requests for the broad amount of information being grabbed into surveillance databases operated by the NSA, Defense Department, Department of Homeland Security, FBI and elsewhere won’t be allowed under this new provision inserted by the conference committee.

As of the approval of the new version of CISA, dragnet electronic surveillance in the USA will be fully armed and operational. In partnership with the requirement in the USA Freedom Act that corporations gather and keep massive amounts of information about the private communications of American citizens, whether or not there is suspicion of criminal activity, government spy agencies will now be able to use CISA authority to grab huge amounts of tracking data, email, and other electronic conversations, and use it to spy against Americans, without adequate oversight, without any suspicion of a particular crime.

Big Brother will be back.

Of course, members of the House and Senate will have the opportunity to protest against these changes, and to vote against the radically altered version of CISA, right?

Wrong. The conference committee’s version of CISA, renamed simply the Cybersecurity Act, isn’t coming up for an individual vote. It’s being slipped in as a rider to the omnibus spending bill that was negotiated this week. In order to stop the surveillance abuses of CISA from going into effect, senators and U.S. representatives would have to vote against spending for almost the entire federal government, and trigger a government shutdown. So, members of Congress who thought they were voting for a bill with privacy safeguards are being forced to watch those safeguards stripped away, without the power to do anything to stop it.

The Fourth Amendment to the Constitution of the United States doesn’t allow this kind of dragnet seizure of private records without a search warrant. It reads, “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.”

Theoretically, we ought to be able to launch a lawsuit to stop the Big Brother spying of the Cybersecurity Act. In practice, though, no one will be able to do so, because of that big exemption to the Freedom of Information Act that the conference committee put into the legislation. If nobody can obtain information proving that they have had their records unconstitutionally seized by the government under Cybersecurity Act powers, then nobody can show standing to file suit in a court of law.

We have only two chances to stop the Big Brother surveillance established by the Cybersecurity Act:

1. Convince members of Congress to repeal the law – without replacing it with just another surveillance regime.

2. Wait for someone like Edward Snowden to rise again and blow the whistle.

The chances aren’t good, but giving up and allowing the United States to become a surveillance state isn’t acceptable.

Will you do your part to spread news of what’s happening with the Cybersecurity Act, and to oppose its abuses?

11 thoughts on “Congress To Revive Massive Electronic Spying Against Americans”

  1. ella says:

    Sometime back I made the comment that the age old adage applied when Boehner stepped down, leaving Paul Ryan in charge. The rats are leaving the sinking ship. Those that have stayed do not have the intestinal fortitude to challenge the ‘legal’ breakdown of our society. That or they have already decided that fortune awaits them as things are changing. With so many willing to simply sit back and let the events flow and with a Speaker of the House in league with those who are making the fundamental changeover of the government, is there really any avenue left open? Even if enough citizens cried foul, is there anyone to listen who cares? The Clinton’s are in favor of these changes, have helped to implement them. Trump has the right idea, but are there enough in Congress who will come to his side? Just how can the American citizens win?

    1. Jim Cook says:

      Trump is in FAVOR of MORE warrantless surveillance, Ella.

    2. Peregrin Wood says:

      Seriously, what part of Donald Trump’s plan to require ALL Muslims to officially register their religious status with the federal government, and be entered into a government database, so that the government can track their activities, even if they are not suspected of involvement in any criminal activity, makes you think that Donald Trump will be an advocate for the Fourth’s amendment of a search warrant specifying probable cause before search and seizure of private documents?

  2. ella says:

    Peregrin Wood, we know that is not what Trump has said. But even that would not be the same as Cyber surveillance. As if that wasn’t being done now anyway. You guys are crying foul after the fact. New laws are being passed without any regard to the constituents feelings on the matter. My own Senator ha recently said ‘thank you’ for voicing my opinion, and then said he voted in the opposing manner. What I am saying is that both Democrats that Republicans are following the pied piper. The last Speaker of the House was constantly accused of being in Obama’s pocket, and not the new one is blatantly so. They are going full steam ahead to get everything done before Trump can get to the White House. Then he can be blamed for the new order. Or if Clinton’s, then they can take credit for it. Trump wants to protect the country and its Citizens. If those citizens are Muslim, so be it. He is referring to those who have gone to other countries of interest, (which security has said can be circumnavigated) and are returning, or are immigrants, for whatever reason. That for a limited time frame. Do I speak for how long that might be? No… The Constitution had many concepts that were intended for the citizens – and others for those wanting to become citizens. Rights for the citizens were not supposed to be granted to non citizens. Otherwise why be a citizen?

    1. J Clifford says:

      No, Ella, this is a matter of simple fact. Donald Trump has said that he wants to put all Muslims in the United States into a giant database to track their activities, forcing them to carry around ID cards marking their religious identity. That’s surveillance.

      Why does Trump have this reality distortion field around him, so that his followers can so easily deny what their own favored candidate has said in public?

  3. Leroy says:

    Whew.

    What a “logic” bomb!

    Cannot even grasp that’s exactly what Trump said.

  4. Quinton Underwood says:

    O K, J. Clifford, Peregrin Wood, Jim Cook, maybe we should just eliminate all forms of communication and then there would be no surveillance and those who want to rob us, rape our wives, mutilate our children, cut off our heads, would experience no deterrent, that should make you guys happy. If all the federal government has to do to get their kicks is to watch me or listen to my calls, or snoop on my PC, I could not care less.

    “I make a living by what I get, I make a life by what I give”

    1. Jim Cook says:

      Rates of robbery, rape and murder are sharply down from what they were a generation ago, so you can’t reasonably use crime as a justification for the introduction of warrantless surveillance now.

  5. J Clifford says:

    Quinton, why should we allow the establishment of a Big Brother surveillance system in the United States, and the destruction of the Fourth Amendment, just because an average of two people per year are killed by Muslim terrorists in the United States?

    You want to wreck the entire country just to satisfy your sense of paranoia.

    You say you don’t care if government spies listen to your telephone calls or search through your computer without a search warrant. That’s your own weird attitude. There are networks for people who like to be watched by strangers.

    Your own desire to roll over and surrender your civil liberties doesn’t give you the right to take away other people’s liberties.

  6. Quinton Underwood says:

    Mr. Jim Cook,

    It looks as you are willing justify robbery, rape and murder all on the basis of rates, and that could be because it is not you it is happening to. If prior knowledge were available there is a good chance that some of these issues would not have happened. On the issue of surveillance, if you are not doing anything wrong the government will not spend any time looking at you.

    “I make a living by what I get, I make a life by what I give”

    1. J Clifford says:

      Quinton, national policy should not be justified by individual experience.

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