Thursday, 03 December 2015

USA FREEDOM Act: New Law, Same Surveillance

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On Saturday, November 28, 2015, the NSA telephone surveillance program ended. Except that it didn't. The spying program — made famous when former NSA contractor Ed Snowden leaked a trove of secret documents to reporters — has simply continued under different authority. The "new and improved" surveillance may even be worse than before because the required warrants will be issued by a secret court.

When the USA FREEDOM Act became law in June 2015, it was sold to the American people as a solution to the unwarranted surveillance Snowden had revealed. The law was set to take effect November 28, 2015 and "reform" that warrantless surveillance.

The USA FREEDOM Act, like the USA PATRIOT Act of 2001, is a misnomer. The name is a not-very-subtle manipulation, designed to hide from the American people the real nature of the law. The architects of the USA PATRIOT Act used the word "patriot" to persuade Americans that the "patriotic" way to confront the specter of terrorism was to trade liberty for security. It took the one but never delivered the other. Likewise, in the USA FREEDOM Act, the use of the word "freedom" is designed to convince Americans that their freedom is being returned to them by "reforming" the surveillance state. In fact, no such reform is taking place.

As surveillance hawks seized the recent tragedy in Paris to demand even more surveillance and an end to private citizens' use of encrypted communications — which are immune to surveillance — they bemoaned the fact that "reforms," including those found in the USA FREEDOM Act, tied their hands and made fighting terrorism "much more challenging." As The New American reported then, "When CIA Director John Brennan says that surveillance reforms 'make our ability collectively, internationally, to find these terrorists much more challenging,' he is pretending that there has been any reform. And he is being dishonest."

When the final USA FREEDOM Act vote was counted in the Senate on June 2, 2015, The New American's Warren Mass reported that the act, which was sold to the American people as a way to "reform the authorities of the Federal Government" to (among other things) conduct electronic surveillance for "foreign intelligence, counterterrorism, and criminal purposes," was both misleading and unnecessary. If true reform had been the goal, a large part of that goal had already been accomplished. On May 31 the provisions of the USA PATRIOT Act, which had been interpreted to allow much of the surveillance exposed by Snowden, expired:

Many of those authorities — which the National Security Agency (NSA) has used to justify the collection of phone records — had been found in provisions of the USA PATRIOT Act that expired at midnight Sunday night. Therefore, Congress could have eliminated those surveillance powers merely by doing nothing.

Despite promises made by its supporters, the USA Freedom Act doesn't end government snooping. It merely shifts the responsibility for collecting communications metadata from the NSA to companies such as AT&T, Sprint, and Verizon, which already keep customer records for as long as five years. The NSA or the FBI would simply need to obtain permission from the secret FISA Court to access that data — and the court nearly always grants it.

So, rather than limiting government powers — which had already been done by the sun setting on parts of the USA PATRIOT Act — what the USA FREEDOM Act really does is make the mobile telecom companies arms of the federal government in keeping the surveillance state running along smoothly.

In fact, true reform was blocked by federal appellate judges time after time, as the surveillance entities blocked changes to the USA FREEDOM Act. As this writer said when an appellate court again struck down an injunction against mass surveillance:

Instead of allowing any real reform where surveillance is concerned, the surveillance hawks appear to have orchestrated events to protect the USA FREEDOM Act from being impacted by Judge Leon's injunction. If, indeed, it is such a thorn in their collective flesh, why work so hard to protect it?

Many in both "conservative" and "liberal" media have largely embraced the new and improved surveillance authority, touting it as real reform. Fox News says, "To protect Americans' freedoms, the USA FREEDOM Act ends all bulk collection of Americans' records, such as telephone and electronic communications records." NPR says, "A controversial government surveillance program has come to an end. As of midnight, the United States National Security Agency has stopped the bulk collection of the metadata from Americans' phone calls." Those focused on privacy, however, see the newly activated law for what it is. As Reason said:

It doesn't appear to be easy to support the USA Freedom Act. The Act's full real name is the "Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online Monitoring Act." Knowing the full name of the act helps explain why privacy supporters aren't shouting from the rafters over the legislation, even if they are supporting it. As is the case with many other bills with elaborate names, the USA Freedom Act doesn't actually do what its name states.

The USA FREEDOM Act is not a change of anything substantive. Is is simply the surveillance hawks dealing from the bottom of the deck. It does not unite or strengthen America. It does not fulfill rights. It does not end eavesdropping, dragnet-collection, or online monitoring. What it does do is continue all of those things while promising freedom. The truth, though, is that there is no freedom without privacy. The American people deserve better and should demand real reform. It is time to dismantle the surveillance apparatus and agencies that have been spying on Americans. That would be real freedom.


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