LOS ANGELES, December 31, 2013 ― Barely a week after Judge Leon of the D.C. District Court held PRISM, the NSA mass data-collection program, to be “likely unconstitutional,” District Judge William H. Pauley III in Manhattan took the view of both Barack Obama and Dianne Feinstein: The NSA collection of every online activity does not violate the Fourth Amendment.
Some opponents of NSA surveillance believe this is yet another nail in the coffin for any national-level efforts to rein in the agency.
Focusing mostly on need and effect rather than the text of or the Founders’ intention for the Fourth Amendment, Pauley said the mass collection of phone data “significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations.
Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.”
Coalitions of powerful legal organizations on both the left and right are spending considerable time, energy and money to stop in court what many Americans consider to be “Orwellian mass-spying” by the NSA. However, this latest ruling indicates that it is very unlikely that the courts will overturn anything.
Supporters of legal efforts point to Judge Leon’s ruling as a cause for hope. But the Tenth Amendment Center national communications director suggested that it would only be a short-term victory for Fourth Amendment advocates.
“If we’re resting all our hopes on a guy who says that keeping track of everything you do online is just ‘likely unconstitutional,’ we’re in pretty big trouble,” said Mike Maharrey. “On top of it, most legal experts hold the view that the appeals court isn’t even going to agree with Leon’s views.”
At Lawfare, Benjamin Wittes of the Brookings Institution said that he “can’t count five votes on the Supreme Court” that would take the same position as Judge Leon.
Some grassroots organizations have pinned their hopes on getting a bill through Congress to rein in the NSA. The USA Freedom Act, co-authored by Senator Patrick Leahy, D-Vt., and Representative Jim Sensenbrenner, R-Wisc., has garnered support from large grassroots organizations across the political spectrum as the best option.
Kurt Opsahl and Rainey Reitman of the Electronic Frontier Foundation consider the bill to be a good start, but point out that it would not do what many grassroots supporters think it would ― stop the NSA’s current surveillance and data collection programs. “The bill only addresses a small portion of the problems created by NSA spying and overreaching government secrecy,” they wrote in a recent analysis of the legislation.
Maharrey doubts that the bill will pass. “First of all, the bill is not going to stop the NSA, and more importantly, the odds of it passing are almost zero,” he said.
Maharrey notes that in order to become law, the bill would have to first get past Senator Dianne Feinstein, the powerful chair of the Senate Intelligence Committee. Any legislation restricting the NSA would need her tacit approval to even get a hearing. And President Obama has indicated that it is his view the NSA is not doing anything wrong.
“It’s important to note that in all the reviews of this program that have been done, in fact, there have not been actual instances where it’s been alleged that the NSA in some ways acted inappropriately in the use of this data,” said the president at a press conference on December 20.
A coalition of organizations is pressing states to take action to thwart NSA spying at OffNow.org. Their proposal would do what Maharrey called “an end-run around Washington D.C.” by passing state-level laws that would make it difficult for the NSA to continue its current programs.
Maharrey believes this might be the only way to get something accomplished.
“I don’t trust a court system who thinks I should be taxed for doing nothing to stop NSA spying. And I sure don’t trust a congress who wrote that law in the first place to do so either.”
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