Editorial: NSA data mining unconstitutional
Op-Ed · June 14, 2013

The revelations that the U.S. federal government collects phone and Internet data of Americans, though claiming it does not use them against Americans, ought to deeply concern anyone who uses either, or both.

If you think you have nothing to hide, so you have nothing to fear, then you’re wrong. This news comes after we learn that the IRS was targeting the Tea Party and that the National Security Agency was spying on journalists. The context suggests that our government does not trust its citizens, its voters, its taxpayers.

Imagine what a member of the CIA or FBI could dig up given the time, or access to your phone records or Internet audio, video, text and search data. And we now know they have the latter.

The key here is trust. The federal government’s secret agencies, created to help “provide for the common defense” have now gone on the offense. Our three branches of government were created to provide checks and balances, but in this they are colluding.

In 1979, the Supreme Court ruled in Smith v Maryland that phone records are not protected by the Fourth Amendment’s unreasonable search and seizure clause because a person making a phone call should reasonably assume that a third party is tracking calls — the phone company must keep records for proper billing. With that OK from the judicial branch, and the 9/11 attacks, both the legislative and executive branches shot off in what may have started as a good-faith effort to provide law enforcement agencies with enormous amounts of power to “connect the dots.” But in that effort, they ignored the key elements of Smith v Maryland that allowed the court to reach its conclusion.

Former federal prosecutor Andrew McCarty, in a National Review piece dated June 6, defends the federal mining of phone records with Smith v Maryland: “Telephone record information (e.g., the numbers dialed and duration of calls) is not and has never been protected by the Fourth Amendment. … Understand: the phone record information at issue here is very different from the content of telephone conversations.”

What McCarty fails to mention is that in Smith v Maryland, police suspicions that Michael Lee Smith robbed Patricia McDonough were based on information McDonough provided about Smith’s car. Police traced the license plate number, found out his name and contacted the phone company to begin keeping call records because the robber was placing threatening and obscene phone calls to McDonough.

So police had reasonable suspicions that Smith had committed a crime.

That is not the case here, in these programs started with the Patriot Act under President Bush in 2006 and reauthorized under President Obama.

Federal investigators can reasonably assume that someone, somewhere is committing a crime at any time. But that’s not enough to get them a warrant. They must have, and the Constitution requires, “probable cause … particularly describing the place to be searched, and the persons or things to be seized.” It is doubtful Verizon’s 17 million customers’ names appear on any warrant, though. Same for Sprint and AT&T.

Director of National Intelligence James Clapper argues that the data collected “cannot be used to intentionally target” any U.S. citizen “or anyone located within the United States.”

“Information collected … is used to protect our nation from a wide variety of threats,” he said. He then talked about using the data to find “patterns” in who called and when or where from, and words used in searches, or why people took certain photos.

The problem with this argument is that it assumes first that everyone is a suspect. But that’s not how our government is supposed to work. We assume innocent until proven guilty.

To help law enforcement, we allow them to use suspicions and evidence to obtain warrants, to build a network of information centered around those suspicions and evidence, and see if they can then find those responsible for a crime.

We don’t cast a national net and question everyone inside, we build a trail of evidence piece by piece and see to whom it leads. We work from the inside out, not the outside in.

Obama defended the programs saying “You can’t have 100 percent security and then also have 100 percent privacy and zero inconvenience.” That’s true. But you also cannot have 100 percent security, period.

He also went on to make McCarty’s point that the phone records program is not listening to your phone conversations. But in the case of the Internet surveillance program, which reportedly includes Facebook, Google, Skype, Yahoo!, AOL, etc. — yes, they are getting into your personal and private information.

Federal authorities cited these programs for preventing a subway attack in New York City. We now know that other surveillance deserves most of the credit for that case, but let’s assume it does not. One success in seven years is a very poor track record, Constitutional violations notwithstanding.

Do you trust the government, especially when checks and balances are ignored? This started under a Republican president and continues under a Democratic one. Should that comfort us enough to assume that it must be Constitutional?

The intelligence community states that the data has not been used against Americans, but we simply cannot trust their word. Clearly, they do not trust ours. We need checks and balances to return.

We strongly believe that these data collection programs are unconstitutional and should immediately be stopped, and that Congress quickly vote to repeal the portions of the Patriot Act that set them in place.

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