Federal surveillance continues despite constitutional concerns

By Melissa Daniels

    The federal government will probably continue to keep secret even the most basic data involving “warrantless wiretapping” despite calls for transparency.
    The U.S. Senate in December voted to reauthorize the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008...
    The act allows the National Security Agency, under the guise of foreign intelligence, to intercept communications to or from an American citizen without a traditional court order as long as one party is outside the United States.
    Multiple amendments that would’ve made public more information about the scope and gravity of surveillance fell short of collecting the 60 necessary votes to pass. Requests included providing estimates of the number of Americans whose communications have been tapped, disclosures of interpretations of the law made in a classified court and a shorter sunset period to boost discussion.
    Over the years, civil liberties advocates, constitutional defenders and digital rights champions have lambasted the FAA, arguing the program violates the Fourth Amendment.
    The proposed amendments, proponents said, would uphold the rights of citizens’ in the modern surveillance age, adding transparency and accountability without interfering with security operations.
    It’s acceptable for the government to keep its national security intelligence classified, Richardson said, but the fear is FAA is used as a “mass collection tool,” sweeping up bundles of unrelated communications because the terms used for collection are overly broad. Even the government’s logic for maintaining those unrelated communications is a secret.
    Julian Sanchez, a research fellow at the libertarian Cato Institute, said the overall problem is the secrecy of how surveillance decisions are made. This could lead to over-collection, as reported by The New York Times.  
    “The vacuum cleaner here is so powerful that it can, in a way, be almost indiscriminate,” Sanchez said.
Beyond that, the lurking fear is what happens with all that information, digitized and easily stored. Sanchez said there’s concern about “backdoor searches,” or federal agents, in search of other offenses, potentially sweeping back through data unrelated to their initial investigations.
    What does it mean for Fourth Amendment rights?

    “What we do know is that we really shifted from the traditional, individualized warrant process to something that looks a look lot more like what the American colonists were so opposed to,” Sanchez said.

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