As if they ever stopped…
On Monday, a secret court ruled that the NSA is allowed to continue its highly controversial bulk data collection program—in spite of recent efforts to discontinue it. Judge Michael W. Mosman, who sits on the Foreign Intelligence Surveillance Court, ruled the policy entirely permissible.
On June 1, the formerly secret program was forced to shut down after Section 215 of the Patriot Act, which was used to justify such spying, expired. The following day, Congress passed the U.S.A. Freedom Act, re-codifying that provision. It was viewed by many as a continuation of violative policies.
Though the new bill was sold as a check on surveillance, it allowed the government a six-month extension on bulk data collection in order to, as the New York Times summarized, “move to a new system in which the phone records would stay in the hands of phone companies, though the agency could still gain access to them.” Essentially, the NSA is still entitled to as much bulk information as it pleases—it must simply jump through the extra hoop of contacting phone companies to access it.
The implications of the bill’s passage were muddled by a United States Court of Appeals ruling less than a month prior that Section 215 of the Patriot Act was unconstitutional. When Congress passed the U.S.A. Freedom Act (with the six-month extension), it did not attempt to contradict this Second Circuit Court ruling. That made it unclear whether or not the government actually intended to take advantage of the six-month buffer period legislated in the Freedom Act.
President Obama cleared up that confusion, however, shortly after the bill’s passage, his administration (via the DOJ) applied to restart the program for six months.
On Monday, the FISA court solidified the intentions of both the Freedom Act and the president. In a 26-page opinion, Judge Mosman declared that “Second Circuit rulings are not binding on the F.I.S.C., and this court respectfully disagrees with that court’s analysis, especially in view of the intervening enactment of the U.S.A. Freedom Act.”
He cited repeated approvals of the program by the FISA court in the past as reason to allow the continuation of data collection. However, such approvals have little to do with the rule of law or civil liberties. FISA courts are notoriously known as “rubber stamp” courts that operate in secret with no transparency to the public. Over a 33 year period, the FISA court denied only .03% of government requests to surveil individuals. The government made over 33,900 requests in that length of time. It received only 11 rejections.
Judge Mosman and the F.I.S.A. court predictably validated the six-month spying extension in a move that only serves to illustrate the severe lack of accountability that permeates the justice system. It was not enough that Congress received a mandate from those they allegedly represent to scale back the gross violations of mass surveillance. It was not enough that a federal court ruled such spying unconstitutional. All the government had to do was run crying to its FISA court—which, as Mosman clarified, is not bound by other court’s rulings—and its intrusive powers were resolidified.
Though the FISA court’s continued approval of bulk data collection is only set to last for the six month “transition” period, the dim reality is that regardless of its ruling, the government is still free to access private information because of the Freedom Act allegedly crafted to curb it. The requirement that the NSA must go to phone companies to retrieve it is nothing but an additional layer of bureaucracy.
That the FISA court could not be bothered to rule against such widely-loathed practices—offering at least the illusion of a superficial regard for privacy—shows the state’s continued arrogant disregard for those they rule over.
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