Even though it’s been almost two decades since 9/11, the privacy vs. security debates that began after the horrific terrorist attack continue. And since then, Americans’ right to privacy has been quickly disappearing while most of us remain unaware of the extent to which federal agencies and law enforcement circumvent our constitutional rights. So, what’s going on, and why should we care?
The US PATRIOT Act (USAPA), passed several weeks after the terrorist attacks of 9/11, marks a significant turning point in the erosion of Americans’ due process and privacy rights as well as the expansion of the federal surveillance state. First, the USAPA granted more power and scope to the FISA (Foreign Intelligence Surveillance Act) court, a court established in 1978 to monitor foreign targets. Unlike other search warrants, FISA warrants do not require probable cause, do not require law enforcement to give notice to those being searched or surveilled, and are given in a secret court with little oversight and no legal representation or full due process rights for the accused. Under the USAPA, the standards for obtaining FISA warrants slackened, and the federal government has used these warrants to spy on Americans (think Carter Page, whose warrant was based on falsified intel), a clear violation of the FISA court’s initial design.
In addition to this, the USAPA eliminated judicial discretion for certain information gathering warrants, gave law enforcement permission to use warrants to monitor targets’ emails and internet history, and increased the scope of subpoenas to include credit card numbers and bank information.
Scholar Betsey Sue Casman crisply summed up the significance of the USAPA gave to the federal government with the following description of the government’s expanded power to:
“(1) monitor the private telephone conversations of individuals suspected of purely domestic criminal activity, without demonstrating probable cause that a crime has been or is soon to be committed, under the guise of an "intelligence" investigation; (2) overhear private conversations of non-suspects permitted by the extension of roving wiretap authority to foreign intelligence investigations without proper privacy protections; and (3) discourage political dissent by including the activities of unpopular political organizations within the newly created definition of ‘domestic terrorism.’”
On Casman’s last point, under the act terrorism now includes criminal behavior that “appears to be intended to intimidate or coerce a civilian population, influence the policy of a government by intimidation or coercion, affect the conduct of a government…”
While I believe we should all be outraged at the government’s circumvention (or ability to easily circumvent) our due process and privacy rights without us even knowing they’re doing it, at least all three branches of the federal government have a hand in the FISA court. And at least there is some process to which federal agents and law enforcement must abide (even if nearly all warrants are eventually approved by the court).
Unfortunately, there is a notable exception even to the flimsy version of due process found in the FISA courts. The Feds created a program called “Hotwatch,” that collects real time financial transactions like credit and debit card purchases, phone calls, and reservations for hotels, airplanes, and rental cars. What is more, the Feds don’t have to worry about violating your constitutional rights to do so because they get warrants to obtain all this information from credit card distributors and retailers, and then issue these sources judicial orders that require these sources to stay silent.
Some companies have actually volunteered their customers’ financial information. After the protests at the U.S. Capitol on January 6, Bank of America partnered with investigators and gave the government information on over 200 of its customers who made purchases in the Washington, D.C. area during the protest timeframe. And yes, that’s the bank taxpayers bailed out during the Great Recession. Buyer beware!
So, why should we care? The government is just trying to keep us safe, and sometimes that requires sacrifices on our part. And if you have nothing to hide, why does it matter what the government sees?
First of all, if you have nothing to hide, then the government also has nothing to see and no reason to violate your rights to surveil you. The founders understood that tyranny could come from two sources— the government and other citizens. Fear of the former explains why we have the rights we have in the Bill of Rights that limit the government from curtailing our speech, making laws to limit our free exercise of religion, and invading our privacy and seizing our property without due process and just compensation.
When the American government believes it is necessary to limit its citizens’ rights it must abide by the doctrine of strict scrutiny, which means that the burden is on the government to argue convincingly of the need to limit rights and those rights limitations must be as narrow as possible. It seems to me that the doctrine of strict scrutiny has not been applied in the FISA court and “Hotwatch.”
Secondly, while there may be some in government who truly believe that these measures are necessary for our security, there are also bad actors who have already gotten their hands on the tools of the surveillance state and used them for political purposes. At least two presidential administrations have surveilled journalists at odds with presidential agendas, President Obama’s administration spied on a rival campaign and used bought and paid for falsified intel (the Steele Dossier) to do so, and now it appears that even peaceful political dissents are being watched. And who has been held accountable for any of this?
Regardless of which party is weaponizing the surveillance state, none of us should want to live in this kind of surveillance state, even if its shrouded in the appearance of a democratic republic predicated on the rights and consent of the governed. May we never get to the point that anything you say or buy will be used against you in a kangaroo court of elites who only want to promote security and the public good.
The best thing government officials can do to promote the public good is to secure our rights, not unconstitutionally seize our financial records and phone calls. And you can take that to the bank… just maybe not Bank of America.
(For analysis on the private financial sector’s curtaining of rights, see my Price of Convenience post)
Photo: "spy - they don't stop when night comes" by dug_da_bug is licensed under CC BY-NC-ND 2.0
https://search.creativecommons.org/photos/f04c8c0b-56ff-4b84-a9e8-e2e548151a7a
Sources
https://cyber.harvard.edu/privacy/Introduction%20to%20Module%20V.htm
https://americandigitalnews.com/index.php/2019/04/07/fisa-facts-fears-and-follies/
https://newrepublic.com/article/115257/fisa-warrants-court-tougher-media-says