One of President Obama’s key legacies that doesn’t get enough attention is how his administration has enabled and expanded the federal surveillance state. Now, one of his parting “gifts” to the nation is to expand this intelligence overreach even further. Of course, he did it without the input of Congress (not that they would be likely to check him on this).
As reported by Charlie Savage of the New York Times, a change to the NSA’s rules on sharing raw signals intelligence (SIGINT) among the 16 agencies that make up the intelligence community was signed by Attorney General Loretta Lynch on January 3rd. The change applies to communications and metadata collected under the old Reagan-era Executive Order 12333, not that which is collected under the more commonly known PATRIOT Act sections that Congress has debated in the past.
One of the most important revelations from the Snowden leaks was that Executive Order 12333 was being used as the legal basis for by far the largest amount of the NSA’s communications and metadata collection. As The Intercept summarizes nicely,
Under 12333, the NSA taps phone and internet backbones throughout the world, records the phone calls of entire countries, vacuums up traffic from Google and Yahoo’s data centers overseas, and more.
Obviously, large volumes of Americans’ data are going to be caught up in this indiscriminate dragnet. What the new rule allows is for domestic security agencies like the Department of Homeland Security, the FBI, and the Treasury Department to request access to all this info without minimization (i.e. without removing sensitive personally identifying information).
Previously, the NSA had a much more established gate-keeper role, and part of the theoretical legal backstop for 12333 surveillance was that any information collected about American citizens without a warrant needed to be cleaned of personally identifying information such as specific email addresses or names. The recent rules change allows American’s communications metadata — though not the content of that data — to be searched and used outside of the context of national security and foreign intelligence.
This raises major questions about the line between military intelligence collection and domestic police authorities, since the FBI or DHS or Treasury could easily use this information (even collected without a warrant) to prosecute crimes unrelated to national security interests such as espionage or terrorism.
Obviously, the pursuit of terrorists being inspired by foreign sources such as ISIS is a legitimate task for federal and local law enforcement. However, if this information is used to also prosecute other domestic crimes, what then has become of basic due process and the presumption of innocence? What of the 4th Amendment? This is an especially important question in light of a network of criminal laws and regulations under which any citizen can be found guilty of violating some law they never knew existed. It is easy to see how mass law enforcement access to Americans’ communications data could be used to target political opponents or used to suppress dissent.
Such abuse of an essentially wartime surveillance capability is especially alarming given the revelation several years ago that federal law enforcement agencies have been instructed in the practice of “parallel construction” to conceal the intelligence origin of data used to prosecute domestic crimes — thus immunizing their cases from charges of the incriminating data being collected in violation of the 4th Amendment.
That such a major change in Americans’ 4th Amendment rights to due process and communications privacy could be made without any involvement or even a peep from Congress ought to be shocking. But certainly not shocking is that the Obama administration would continue the Bush administration’s disregard for constitutional limits on government surveillance in this way.
While one could hope that the coming of a new, unconventional administration might provide some backstop against such reckless expansions of unconstitutional government authority, the early signs from Trump’s team are far from promising.
This article originally appeared on Conservative Review.
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