Published March 25, 2016 by Mike Maharrey (Tenth Amendment Center)
New rules under development by the Obama administration will take data collected by the NSA, supposedly for “counter-terrorism” and put it into the hands of other federal agencies and even your local law enforcement for everyday use.
Proponents of federal spying inevitably defend any objection to mass warrantless surveillance by playing the terrorism card.
The NSA must be able to sweep up virtually everybody’s electronic data to protect America from terrorist attacks, so the argument goes. This carries a great deal of weight, especially in the wake of tragic bombings in Paris and Brussels. Many Americans brush off the constitutional violations and invasion of privacy inherent in NSA spy programs because they honestly believe they only target terrorists.
But in fact, the vast majority of information dredged up by the U.S. spy apparatus ends up in the hands of state and local law enforcement for use in routine criminal investigations. Instead of “fighting terrorism,” the American surveillance state primarily serves as a way to circumvent the Fourth Amendment and prosecute the unconstitutional “War on Drugs.”
We’ve known for several years that a DEA Special Operations Division utilizes warrantless data collected by the NSA for routine drug investigations. Reuters revealed the extent of NSA data sharing with state and local law enforcement in an August 2013 article. According to documents obtained by the news agency, the NSA passes information to police through the SOD. These cases “rarely involve national security issues.”
Former NSA technical director William Binney said the feds share information gathered without a warrant and direct the local police force to make an arrest. Using a process known as “parallel construction,” investigators then build their case using normal policing techniques, getting warrants for information they’ve already obtained. The process serves to hide the illegally gathered information, creating the illusion of a legitimate case.
As Washington Post columnist Radley Balko put it, parallel construction is “a bureaucratically sterilized way of saying big stinking lie.”
Binney called this “the most threatening situation to our constitutional republic since the Civil War.”
A new policy quietly under development by the Obama administration will make it even easier for the NSA to share this information with no privacy screening. According to a New York Times report, “Robert S. Litt, the general counsel in the office of the Director of National Intelligence, said that the administration had developed and was fine-tuning what is now a 21-page draft set of procedures to permit the sharing.”
Under the proposed rule changes, federal agencies such as the FBI would gain direct access to streams of information gathered by the NSA, including emails, phone calls and location data. They would then be free to pass along this information to state and local law enforcement.
All of this can happen without any congressional or judicial oversight under a Reagan era executive order known as EO 12333. ACLU of Massachusetts blog Privacy SOS explains the ramifications of these changes.
“In short, domestic law enforcement officials now have access to huge troves of American communications, obtained without warrants, that they can use to put people in cages. FBI agents don’t need to have any ‘national security’ related reason to plug your name, email address, phone number, or other ‘selector’ into the NSA’s gargantuan data trove. They can simply poke around in your private information in the course of totally routine investigations. And if they find something that suggests, say, involvement in illegal drug activity, they can send that information to local or state police. That means information the NSA collects for purposes of so-called ‘national security’ will be used by police to lock up ordinary Americans for routine crimes.”
Simply put, these new rules will codify parallel construction – formalizing what has been happening under the radar for years. Implementation of these new procedures will effectively cement routine violations of the Fourth Amendment into federal law.
Balko observed that in one sense, bringing this mass data sharing into the open might count as a good thing. Attorneys in states that have passed laws limiting the collection of warrantless data will find it easier to challenge and disallow this type of shared information. Nevertheless, as Balko notes, the fact the feds no longer feel the need to hide this kind of data sharing seems pretty ominous.Follow @FortySixNews