DOJ in Last-gasp Run Around Privacy Laws

Stan Ward

Stan Ward

January 25, 2017

Amid the hoopla surrounding the Chelsea Manning clemency debacle, I think the US Department of Justice (DOJ) has pulled a fast one on the American people. Indeed, citizens worldwide may also be affected. The situation involves the NSA scooping-up of all data with impunity, as before, but now being able to share it with 16 other government agencies as well as, if you can believe it, foreign spy agencies!

More cynical pundits speculate that this last-minute, seemingly spiteful act by the Obama administration, is a reward for the intelligence agencies’ help in promoting the narrative that Russian hacking helped elect Donald Trump. That notion, of course, delights Democrats, because it casts doubt on Trump’s presidential legitimacy.

Regardless, it is a worrisome development, coming just hours before the unpredictable Trump took the oath of office. Since the information gathered by the NSA may not just rest with that agency, it will potentially imperil the privacy of millions. An opinion piece in the Washington Times, by esteemed former jurist Anthony Napolitano, assesses the privacy fallout. At its heart, are these words by the outgoing Attorney-General Loretta Lynch:

“In the past, there were strict limits on the NSA’s dissemination of this data (intercepted surveillance data) to domestic law enforcement agencies. The new regulations eviscerate those limits.”

She may as well have said it was okay to tweet the sensitive data collected, or to make a montage for YouTube. By the way, the sharing will be warrantless, and therefore without judicial or congressional oversight. On the other hand, why should we be surprised? It is only appropriate that the administration which directed the most intrusive mass data gathering program ever should, on the way out the door, make the problem more serious.

Other agencies that will now share in the information windfall include the Treasury Department, FBI, Drug Enforcement Agency, and CIA. Previously, US intelligence agencies could only access the data after the NSA filtered it to remove irrelevant names and personal information. Now, it will be open season from the get-go.

It was bad enough for privacy before, with the NSA hoovering every keystroke, every phone call, and all domestic business, medical and financial transactions of innocent Americans with the government’s blessing. And, if an agency such as the FBI, the Drug Enforcement Administration, or even local police wanted any of the data acquired by the NSA for its purposes, it could obtain a warrant from a federal judge. Now the situation will be even worse. Why?

The NSA can now share this information with other agencies, without their having specified a legitimate law enforcement reason. The criteria will now be…wait for it…the catch-all phrase of government need. Does anyone else hear the flapping of the national security banner?

The threshold of having probable cause to search for information is now moot because of the outgoing administration’s last gasp. The Fourth Amendment expressly forbids the use of broad warrants – the scatter-shot approach where you can search wherever you wish, and seize whatever you find, without probable cause.

In so doing, Obama (through Lynch’s DOJ), has run roughshod over, and circumvented, the Fourth Amendment. What is surprising and ironic, is that this affront to the constitution emanates from Obama, who was a constitutional law professor before his political career. We had a right to have expected better. If this is the product of a learned academic turned politician, what can we expect from a former TV reality star in the Oval Office?

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