The Surveillance State Is Illegal

By Daily Editorials

May 21, 2015 5 min read

A U.S. appeals court's ruling that the National Security Agency's metadata collection was illegal turned the spy state upside down in almost 100 pages of common sense and solid understanding of the rights Americans have under the law. It shows, once again, that both common sense and a respect for the rights of all Americans seem to be impossible concepts for the leaders of the "free world" to grasp.

The federal appeals court ruling came after Edward Snowden revealed (among other things) that the National Security Agency was scooping up "metadata" (numbers called and received, length of call, date and time) on, well, everyone at home and abroad. They did this by using a secret court authorized by the Patriot Act to issue secret and continuing orders to telephone and Internet companies forcing them to turn over the data and stay silent about it.

When the program was revealed, NSA officials claimed it was authorized under the Patriot Act (which turned out to be a surprise to the actual congressional authors of the act who said it did no such thing) and that our spies were collecting the data and storing it, but only using it when they received a warrant based on probable cause.

In refuting their claims, the appeals court simply pointed to what police can and can't do under the law. Officers can, for instance, follow someone around while they are in public to build a criminal case against them. This isn't illegal under the law, simply because people should not expect strict privacy in their day-to-day movements.

However, police officers can't place a GPS tracker on an individual's car for a period of time without a warrant.

Courts have held that the defendant's expectation of privacy had been violated, because the long-term surveillance revealed a "mosaic" of information in which individuals had privacy interests, even in the absence of a privacy interest in discrete pieces of such information.

Police and the NSA might argue that there is no difference between the two, but it's obvious the difference is breathtaking. The police (and the secret police) should not, without probable cause and a warrant, be able to track anyone and everyone all day, every day for as long as they choose.

They also should not be able to examine every phone call a person makes or — as the world becomes ever more attached to the Internet — every website they visit or interaction they have on the Web.

The NSA, the U.S. Justice Department and other members of this nation's security apparatus believe they have a right to any information about any individual they want at all times. They say they need this to protect Americans from terrorists, even though they are silent when asked about a single terrorist attack that was prevented using these methods.

The good news here is that the appeals court handed them a defeat. The bad news is that the court essentially punted by declining to order the program end immediately and instead pointing out that the Patriot Act will end June 1 unless Congress reauthorizes it.

The House already has voted to end the metadata program, but as we write this, Senate Majority Leader Mitch McConnell has balked at changing the Patriot Act and hopes to stall the process for a few months and eventually pass a clean bill.

The Patriot Act always has had a deadline because it gave the government extraordinary powers in a time of crisis. When that crisis ended, those programs were supposed to end as well. The clear problem with that line of thinking is that the threat of "terrorism" will almost assuredly never end. There will always be someone, somewhere, who wants to kill innocent people for their cause.

Yes, government agents and agencies should do everything in their power to stop terrorism and other threats to the American people. However, it's clearly time for congress to publicly debate and decide exactly how much power the government should have over the lives of the people they claim to work for.

REPRINTED FROM THE PANAMA CITY NEWS HERALD

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