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?