The Demise of the Bulk Collection of Data

fbi_wiretapRarely do I heap any praise on a politician. I always keep a skeptical eye toward them and am not afraid to call them out when necessary. But today, that praise is necessary. Senator Rand Paul of Kentucky (and also a 2016 presidential candidate) was a wrecking ball in the past couple of weeks when it came to allowing certain provisions in the Patriot Act to expire.

The Patriot Act was passed by Congress out of fear in the days after the 9/11 attacks. The way it had been interpreted by the National Security Agency (NSA) was that it legally allowed them to spy on everyday Americans. Most of the time it was without a warrant, but if one was needed, it had created a secret FISA court that basically granted one each time (only 11 times was one rejected) as it only heard the government’s side.

Section 215 of the Patriot Act authorizes the government to collect “any tangible things” that the government proves are “relevant to” an investigation into suspected terrorists.

A lot of what the NSA was doing was brought to light when Edward Snowden blew the whistle about the operation. I don’t consider Snowden to be a patriot or a traitor. I consider him to be an American who saw the federal government overstepping its authority and letting the public know what was happening.

So if the law states the government can collect the data then what’s the problem? The problem is that it violates your right to privacy which is guaranteed under the Constitution. Law enforcement must request a specific warrant, not a blanket warrant that encompasses everyone, from an actual court… not some secret court that the public knows nothing about nor has any defense in. If Congress really wants to do this then they need to go about the proper way of amending the Constitution to allow it.

Republicans are tearing him apart for allowing the Patriot Act to expire. Senator John McCain (R-AZ) has gone so far as to claim that it was a publicity stunt since Senator Paul is running for president. I can’t say whether that is true or not, but it has been one of his biggest issues since he entered the Senate back in 2011.

Senator Paul may also have something else to back him up. In early May, the Second Circuit Court of Appeals decided that the NSA’s bulk, warrantless collection of Americans’ phone records was illegal though stopping short of deciding its constitutionality. This came almost a year after a lower court ruled the program “almost-Orwellian.”

“Because we find that the program exceeds the scope of what Congress has authorized, we vacate the decision below dismissing the complaint without reaching appellants’ constitutional arguments.”
Judge Gerald Lynch

The public has been undecided on what should be done. On the one hand they don’t want the government overstepping their constitutional authority and violating our right to privacy. However, on the other hand they want to feel protected from terrorists as it was born out of the fear from that. In the past several weeks, national security analysts have been hitting the media airwaves stating that the bulk collection of data has been worthless and has had no result on anything.

So what should be the path forward? In the past month the House of Representatives passed the USA Freedom Act. Is it perfect? No. But that doesn’t mean that it shouldn’t be added to the debate on how we proceed forward. POLITICO posted an article recently that reported how this new piece of legislation would “reform” the Patriot Act.

However Congress chooses to proceed forward in the days and weeks ahead, they should be mindful of our constitutional rights when deciding on national security. Though we take national security very seriously, we will not allow our rights to be disregarded.

“Those who surrender freedom for security will not have, nor do they deserve, either one.”
Benjamin Franklin

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It was reported in a recent article in Governing magazine that several cities across the US are installing audio surveillance systems on their public buses, which has sparked a debate over privacy concerns and whether or not this particular type of surveillance violates wiretapping laws or maybe even the Constitution.

We have grown accustomed to their being cameras recording our movements when we are out and about… when we go to the bank, into a store, and even in places in restaurants and bars.  There are the occasional complaints that these violate our right to privacy, but the counter to that is that we are not entitled to privacy once we leave the confines of our homes.  When out in public these days, anyone can be taking your picture or video and posting it online… and usually we will never know anything about it.  But for some reason we like to make a big deal when organizations and companies attempt to bring about surveillance mostly as a way to curb violence and crime.  Growing up and riding the bus to school, I can still remember when cameras first showed up on my school bus.  But that camera like all the others have remained mute.  There is no audio.  They were only designed to capture actions and not words.  So there in lies the difference between what we come to think of with security cameras and the types of cameras these cities are trying to use.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  4th Amendment US Constitution

video-surveillance-signAs we have basically accepted surveillance cameras as a way of deterring crime, what is it that they expect from capturing audio, as well?  According to the article in Governing, it’s to provide safety and to resolve public complaints.  But could adding audio to the surveillance really add anything to what the video camera is already showing?  I guess it’s a possibility.  It could easily show that the person that just started beating another was actually being taunted and teased consistently by another passenger.  But is it worth that extra step since the guy that started beating the other is guilty of assault that the video captured.  Does hearing the audio of that person being teased make it any less of a crime?  Not one bit.  So is the audio even worth it then if it would have no direct effect?  As for others that might be plotting something big (i.e. a bank robbery or terrorist plot) are generally not going to be sitting in a public place where they could be overheard by any number of people sitting around them.  So again, it easily takes out the justification for needing the audio.

Footage from video surveillance cameras can be used in court so long as the footage was obtained with a warrant, but could audio be used in the same capacity?  Privacy groups say this could easily fall under wiretapping laws, which technically requires the government to get a warrant first.  In Kyllo v. United States (2001), the court holds that unlawful search and seizure extends to unlawful use of public space in order to gain private information.  Evidence obtained is inadmissible.  However, the Patriot Act gives the government the authority to listen to our phone calls and read our emails if they feel there is a threat without such a warrant, but would the legality of audio surveillance fall under that particular federal law since it doesn’t particularly involve those two things?  And it still remains to be seen how that particular part of the Patriot Act doesn’t violate the 4th Amendment as well.  But to counter the wiretapping laws, one could argue that in a public space a warrant isn’t needed since anyone can overhear anything you’re saying, and you cannot make the assumption that the conversation you are having in a public space is private; therefore, it would not fall under the wiretapping laws.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  9th Amendment US Constitution

Do we have a right to privacy?  Yes… in our private residences.  The moment we step out the door, we are no longer guaranteed that particular right as we are then in a public space.  We may not like it, but that is the overall simplicity of the matter.  Does that justify that these cities have a right to install audio surveillance with their video on public buses?  Not necessarily.  Just because you are able to do something doesn’t necessarily mean that you should.  The people in these cities should be asking themselves how much more audio can give them over just video, and whether its worth the particular investment.  Do they really need to hear our conversations?  How much more can they possibly get from it?  It appears to be moving to the extreme side of surveillance in the name of safety only to have the same results.

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