It has been said that the more things change, the more they remain the same. This phrase appears apt in describing the state of affairs in the world of surveillance a year after Edward Snowden’s leaks. Not only does collecting of data continue unabated but the government has reinforced its stance that unrestricted surveillance is permissible. It has pointed to the Foreign Intelligence Surveillance Act (FISA) of a dozen years ago and the more recent FISA Amendments Acts of 2008 for political and moral cover.
The 2008 Amendments were controversial in that they certified the Bush administration’s warrantless wiretapping program, allowing the government to screen American citizens’ international communications without a court order or suspicion of wrongdoing. It is the government’s contention in backing the statute that Americans who make phone calls or transmit emails to people abroad should not expect privacy considerations because the people with whom they’re communicating, if non-American, are not safeguarded by the US Constitution. The Justice Department feels:
‘The privacy rights of US persons in international communications are significantly diminished, if not completely eliminated, when those communications have been transmitted to or obtained from non-US persons located outside the United States.’
This is pretty strident stuff. Looking at these words more closely one sees little wiggle-room in the verbiage for conjecture, and this is the government’s posture in defending two criminal cases brought against it in Colorado and Oregon. In these cases the defendants are being tried on the basis of evidence gleaned under the FISA Amendments Act.
The defendants claim the law is unconstitutional. In addition to its expectation of privacy “completely eliminated” posture, the government argues that its right to collects data across international borders supersedes any individual privacy rights. Alarmingly, as if a justification, the government cites the surveillance activities of international governments which are probably monitoring private communications as well.
What is scary is that the government is arguing not just in support of its monitoring authority but that its authority is unlimited. It’s as if, in the government’s opinion, under the 2008 law Americans have no rights with which to be violated. This situation cries for immediate legislative reform. The window for such reform legislation is small as before long eyes will focus on the 2016 national elections. In fact the preening and posturing has already begun. But poll after poll seems to reflect a paradox among potential voters.
While there appears to be general discontent with government mass surveillance, the fears of external terrorist threats are trumping this discontent at the moment. It may take an extraordinary event, one involving a public figure perhaps, to galvanize public opinion and spark legislative action. Passage of the USA Freedom Act would be a good start.*
*Editor’s note: the USA Freedom Act was passed yesterday by the House of Representatives, 303 votes to 121, but in such a gutted form that all civil rights organizations who pushed for the legislation withdrew their support in disgust before the vote was taken.