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All Da King's Men

Section 215

By David King Published: June 9, 2013

The court order authorizing the government to collect all Verizon cell phone records rested on legislation from a controversial 2001 Patriot Act provision, Section 215.

Here's what Section 215 does, according to law professor Jeffrey Rosen:

Section 215 was an expansion of the Foreign Intelligence Surveillance Act, which was originally passed in 1978. That act gave the government the ability to issue secret warrants for specified items, like records from car rental companies or storage facilities, on the approval of a secret court if that was relevant to a terrorism investigation and if the suspect was a suspected spy or terrorist.

Section 215 dramatically broadened the scope of that power. Now the government can seize, as you said, any tangible thing. In addition, 215 removed the limitation that it had to be a suspected spy or terrorist whose records were being sought. Now, anyone's records can be sought. The only limitation is that the secret warrant has to be relevant to a national security investigation.

This is how the Obama administration, using legislation put into effect by the Bush administration, can claim the widest surveillance powers ever enacted by the federal government, the power to collect virtually any information about anyone (or seize any assets from anyone), as long as the government says it is conducting a national security investigation. While it is patently ludicrous to collect the phone records of ALL Americans for any national security investigation, Section 215 allows the government to do it.

The kicker is, the government can do all of these things in secret. The government produces secret warrant applications, and they are approved by a secret FISA court. The only way the public ever finds out what it's government is doing is through illegal leaks of classified information.

You may be wondering how the secret FISA court ever approved a warrant application allowing the government to invade the privacy of all Americans to such an extent. From what I've been able to discover, it's because the secret FISA court is little more than a rubber stamp for the government. Last year, the FISA court reviewed 1,789 government applications and approved every single one of them. This has largely been the case throughout FISA's history. From Glen Greenwald:

...the [FISA] court barely ever rejected a government request for eavesdropping. From its inception, it was the ultimate rubber stamp court, having rejected a total of zero government applications - zero - in its first 24 years of existence, while approving many thousands. In its total 34 year history - from 1978 through 2012 - the Fisa court has rejected a grand total of 11 government applications, while approving more than 20,000.

Even on the rare occasion that the FISA court rejects a government application, the government has multiple appeal avenues. I heard author James Bamford, who has written books on the NSA,  say this morning on C-SPAN that after all the appeals (all secret, of course), there has only been ONE government application ultimately rejected by the FISA courts in the court's entire history. Even actual rubber stamps don't work that often.

The government isn't planning on putting an end to it's data mining activities any time soon. The NSA is building a huge new million square foot data collection center in Utah, costing the taxpayers billions of dollars. We have to pay for our own government to spy on us.

President Obama says there's nothing to worry about, but color me more than skeptical. I already feel burned for supporting some of the activites of the Bushies right after 9/11, when fears of terrorism were at their peak. I should have known better. Those activities spun out of control, and we ended up with the massive Big Brother surveillance state we have today.  I don't plan on making the same mistake again. We need to get Section 215 of the Patriot Act repealed. What the Obama administration is doing today under the veil of Section 215 may be legal according to the Patriot Act and subsequent legislation, but it cannot be constitutional under the First and Fourth Amendments. The government has no probable cause to treat all Americans as potential terrorists, or to collect information on our activities as free citizens. This has got to stop.

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