Beginning in 2001, methodical steps have been taken by the intelligence community to strengthen the range and breadth of secret surveillance programs. The threat of another terrorist attack instilled fear into millions and as a result the government was able to pass what is known as the USA PATRIOT Act, which stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism. This act enabled the U.S. government to legally collect mass amounts of data on U.S. citizens without having to apply for a warrant.
The NSA (or FBI/ CIA) will start by collecting what is called metadata. Metadata is simply a set of data that details information about other data. This allows the agency to collect larger amounts of information without having to sift through each individual call and communication. They will take chunks of this data and make extrapolations based on the places and people you have contacted. This practice is outlined under Section 215 of the PATRIOT Act.
Section 215 is widely regarded as unconstitutional by activists and progressives because of the extremely broad spectrum it covers. It is broken down into two types of “orders”. The first is call orders (CDRs) which are exactly what they sound like, call and communication records. These can reveal personal information about a person including the people they call, the duration of the calls, and where they are calling from. In 2018 alone the government used this arm of Section 215 to collect 434,238,543 call records. Surprisingly, most of the data collected had no affiliation to the targeted person or current investigations. In the same year, the NSA admitted that it had illegally obtained records from a major communication provider. They state that there are “hundreds of millions” of records that the NSA has no authorization to use. Their response- delete all CDR data since the inception of the program.
Originally, these records were extended into what is called the “third-degree”. This means that the NSA can collect data on the suspected target and all their contacts, all their contacts- contacts, and then it repeats for a third set! Although, in 2015, Section 215 was amended, and the degree was reduced to two.
The second type of order is business records. According to Section 215 the NSA can require that a business relinquish all customer records. The business is also condemned from disclosing that they handed over any records to the government. These records can range from banking, retail purchases, real estate, and firearm sales.
The supposed safeguard against the abuse of this collected metadata is the Foreign Intelligence Surveillance (FISA) court. The FISA court was established in 1978 and is essentially a gateway to accessing the metadata collected. Once the NSA has enough evidence collected, they will issue a National Security Letter (NSL) to the FISA court. A NSL is like a warrant, except the main difference is there does not need to be any evidence of probable cause, only a statement of facts. The NSL is then brought before the FISA court and they will either approve or deny the request based on the information presented. Once approved the NSA can dive deeper into the metadata collected under Section 215.
There is a major transparency and oversight issue with this process, and that is the FISA court. The court is closed to the public and oftentimes gilded in extreme secrecy. The meetings are usually classified and the information that is disclosed is in snippets or heavily redacted. There are no representatives for the citizen body in these rulings, only government and intelligence community officials. Former FISA court judge, James Robertson, when discussing the court explains that “what FISA does is not adjudication, but approval”. In other words, they rarely deliberate on the NSLs that are presented to them but follow the direction of the NSA or surveillance entity in questions. This is evident when only 15 out of 38,169 requests were denied during the years spanning from 1979-2015. That’s only .03% of requests denied over a thirty-year period!
In June of 2015, the PATRIOT Act was finally due to expire. Lamentably, the day after its expiration the Obama administration authorized the USA FREEDOM Act (Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring). While keeping most of the provisions outlined originally by the PATRIOT Act, the FREEDOM Act introduced a few modifications. First, the intelligence community is prohibited from the bulk collection of data. They are no longer permitted to request a company hand over records for every single customer; their requests are limited to individuals. Additionally, businesses are now authorized to inform the public when they hand over data to intelligence communities. Even though their abilities were slightly hampered, they are still collecting thousands of records.
For three and a half years the FREEDOM Act held tenure until it’s expiration in March of 2019. Shortly after, in a twist of events, the FREEDOM Reauthorization Act was drafted into legislation. It was passed through the House and Senate with little pushback from the American people. After all, the nation was in the grips of a global pandemic and the domestic hysteria of an impeachment. The latest version of the surveillance-state manifesto includes two important additions.
First is the Lee-Leahy amendment, which improves transparency issues with the FISA court. This will ensure that an independent reviewer is incorporated when “sensitive investigative matter” is involved. Regardless of the case, the neutral party must still be approved by the FISA court. The second addition will now allow the government to collect data on internet search history and browsing activity. The data will still be “safeguarded” by the FISA court but collected under section 215 nonetheless. Both these new provisions will follow the FREEDOM Reauthorization Act up until it’s due date in March 2023.
The PATRIOT Act gave the government the ability to conduct warrantless surveillance on American citizens. They have gathered millions of records, and their purview should be seriously questioned against the fourth amendment. Now, they can collect our internet search history and activity legally. Legislators have failed to protect Americans from this severe invasion of privacy.
Historically the U.S. government has been hostile towards journalists, activists, and social progressives. The Church Committee was established (1975) in response to the abuses carried out by the FBI, CIA, and NSA. They explicitly targeted and illegally surveilled anti-Vietnam war groups, communists, socialist party members, the Black Panthers, the American Indian Movement, Malcom X, Martin Luther King Jr., and leftist organizers; among many others. In 2010 the FBI raided the homes of multiple anti-war activists in Chicago and Minneapolis. All actively spoke out against the invasion and occupation of Iraq. The FBI claims they were searching for evidence relating to “terrorist-activities”. The reality is they were attempting to harass and intimidate prominent anti-war organizers. The Obama administration, while claiming to aim for total transparency, prosecuted eight Americans under the Espionage Act for leaking classified information. These examples are a stark reminder that the intelligence community is a powerful force to be reckoned with. It’s scope and power should not be amplified, especially during a time when our lives are so intertwined with our online activity. We have until 2023, when the FREEDOM Reauthorization Act expires, to urge our representatives to seriously lobby against the surveillance state.
By: Patrick O’Connor
- USA PATRIOT Act | FinCEN.gov
- What Is Metadata? (Definition and Uses) (lifewire.com)
- Section 215 of the USA PATRIOT Act
- Reauthorizing the USA Freedom Act of 2015 — FBI
- About the Foreign Intelligence Surveillance Court | Foreign Intelligence Surveillance Court | United States (uscourts.gov)
- The USA Freedom Act: What Is It and How Does It Affect Your Online Activities – Pixel Privacy
- Lee-Leahy Introduce Bipartisan FISA Reform Bill – Press Releases – United States Senator Mike Lee (senate.gov)
- Amendment to Keep Feds out of Citizens’ Internet History Fails by 1 Vote (breitbart.com)
- Church Committee (history-matters.com)
- FBI Raids Homes of Antiwar and Pro-Palestinian Activists in Chicago and Minneapolis | Democracy Now!
- Obama used the Espionage Act to put a record number of reporters’ sources in jail, and Trump could be even worse (freedom.press)
C.I.A current events FBI FISA Court FREEDOM Act government Intelligence Community Metadata NSA Patriot Act politics Privacy progressive Surveillance Activists Anti-War Call Records CIA Journalists NSA Obama Administration Patriot Act PRISM Privacy progressive Secret Programs Surveillance