In what has become the usual for surveillance organizations, the FISA court this week decided that it will continue to do what it wants. Despite the passing of the USA FREEDOM Act that places telephone metadata back in the hands of telecommunication companies, the top secret surveillance court ruled that the NSA can continue business as usual for the next six months.
The Decision Over the Surveillance Extension
The question of whether or not to extend the NSA’s massive telecommunications surveillance habits centered around two things. The first is whether a ruling by the Second Circuit appeals court that ruled the program that sends all telephone metadata directly to the NSA’s searchable database was unconstitutional applied to the FISA court.
The second question was whether the six months grace period that the USA FREEDOM Act gave the program ‘to wind down’ applied. Even though the USA PATRIOT Act that provided legal basis for the bill had ended days before the passing of the USA FREEDOM Act, thus forcing the government to shut down the program completely (but who knows if they really even did that).
If you have been following these issues you can probably guess how the FISA court ruled.
Of course, they said the Second Circuit appeals court ruling did not apply to the ‘higher court’ of FISA.
And the ruling also said that it was ‘Congress’s intention’ to pass the USA FREEDOM Act before the expiration of the USA PATRIOT Act.
So the telecommunications snooping- only one of 3 provisions provided by the infamous section 215- can continue unabated for the next six months. Barring any further legislation, after six months all telephone metadata will then be in the hands of the companies that provide the service. The companies will only be obligated to release the data through a court order- which is still easy enough to obtain through the FISA court.
Is it Really Over?
Can we trust that this phase NSA snooping is over? Remember that we would not be even having this discussion if it were not for one man who broke the law and risked himself in order to release top secret information to journalists (read: Edward Snowden). The FISA court, the full scope of NSA’s capabilities, and the collaboration of GCHQ and the NSA in their surveillance activities would still be unknown to the world if it were not for Edward Snowden.
And still the problem persists. The FISA court and the NSA still operate in complete secrecy to the people.
Yes, in much the same way as it is known that it’s harder to take liberties away from citizens than to never give them those liberties at all- taking away power from the government is impossible. Especially when it operates in secrecy to begin with. Couple that with the fact that the FISA court believes it is above the law and we have a monster on our hands.
Case in point- amicus curiae (Latin for ‘friend of the court’). Before the USA FREEDOM Act, the FISA court would only hear from the government when ruling on surveillance, there was no opposition, no one protecting the people’s rights (the fact the the court operated like this for years is a problem in itself). But alas, the USA FREEDOM Act directs the FISA court to appoint individuals to submit expert testimony on behalf of the people.
But the court, in its immature way of handling itself, believes it can still do what it wants. Judge Dennis Saylor says that the FISA court still reserves the right to not hear any amicus curiae testimony in certain cases:
The statute provides some limited guidance, in that it clearly contemplates that there will be circumstances where an amicus curiae is unnecessary (that is, ‘not appropriate’) . . . at a minimum, it seems likely that those circumstances would include situations where the court concludes that it does not need the assistance or advice of amicus curiae because the legal question is relatively simple, or is capable of only a single reasonableness or rational outcome.
If this wasn’t so dyer it would laughable. What if we applied this to other court proceedings: ‘Oh, he’s obviously guilty, so we don’t need a trial.’
It is painstakingly clear at this point, that the FISA court and the NSA will continue to do whatever the hell they want. They will continue to twist the words of laws in their favor. And why not? They are toddlers without parents, there is no oversight whatsoever.
When Surveillance Oversight is Underwhelming
However, even with ‘oversight’ the result is less than satisfactory. The Investigatory Powers Tribunal (IPT) oversees the UK intelligence services. Just recently, in April of this year, was the first time in its fifteen year history that it actually upheld a complaint. The IPT ordered GCHQ to destroy documents illegally obtained that contained communications between a lawyer and his client.
More recently, on June 22, it also found that GCHQ had spied on the highly respected non-governmental organization (NGO) Amnesty International. However, the problem wasn’t that the government spied on an agency that deals with human rights defenders and victims of abuse. The problem was simply that GCHQ had kept the communications stored for too long.
As Salil Shetty, Amnesty International’s secretary general, points out, “It’s outrageous that what has been often presented as being the domain of despotic rulers has been occurring on British soil, by the British government.”
Sadly, I believe citizens of the world have already lost an important foothold in society. With the government developing its surveillance prowess behind closed doors they have gained a significant strategic edge. Governments around the world have seemed to have taken on a mind of their own. The best that we can hope for now is to contain the beast that has been created behind our backs.
Some ways to do this are to contact your representatives, let them know what you want. Vote. Protect as much of your private information as possible. Limit the amount of information that surveillance agencies can get. Use services like proxies and a VPN such as LiquidVPN to hide your internet traffic. And spread the word about the trespasses against its own citizens that governments commit everyday. We’ve got to put our foot down now to prevent a worsened situation later.
feature image courtesy of wikimedia commons.
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