“We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government.”
~ William O. Douglas, dissenting in Osborn v. United States (1966)
The government wants us to believe that we have nothing to fear from its mass spying programs as long as we’ve done nothing wrong.
Don’t believe it.
It doesn’t matter whether you obey every law. The government’s definition of a “bad” guy is extraordinarily broad, and it results in the warrantless surveillance of innocent, law-abiding Americans on a staggering scale.
For instance, it was recently revealed that the White House, relying on a set of privacy loopholes, has been sidestepping the Fourth Amendment by paying AT&T to allow federal, state, and local law enforcement to access – without a warrant – the phone records of Americans who are not suspected of a crime.
This goes way beyond the NSA’s metadata collection program.
Operated during the Obama, Trump and now the Biden presidencies, this secret dragnet surveillance program (formerly known as Hemisphere and now dubbed Data Analytical Services) uses its association with the White House to sidestep a vast array of privacy and transparency laws.
According to Senator Ron Wyden, Hemisphere has been operating without any oversight for more than a decade under the guise of cracking down on drug traffickers.
This is how the government routinely breaks the law and gets away with it: in the so-called name of national security.
More than a trillion domestic phone records are mined through this mass surveillance program every year, warrantlessly targeting not only those suspected of criminal activity but anyone with whom they might have contact, including spouses, children, parents, and friends.
It’s not just law enforcement agencies investigating drug crimes who are using Hemisphere to sidestep the Fourth Amendment, either. Those who have received training on the program reportedly include postal workers, prison officials, highway patrol officers, border cops, and the National Guard.
It’s a program ripe for abuse, and you can bet it’s getting abused.
Surveillance, digital stalking and the data mining of the American people – weapons of compliance and control in the government’s hands – haven’t made America any safer, and they certainly aren’t helping to preserve our freedoms.
Indeed, America will never be safe as long as the U.S. government is allowed to shred the Constitution.
The Fourth Amendment was intended to serve as a protective forcefield around our persons, our property, our activities, our communications and our movements. It keeps the government out of our private business except in certain, extenuating circumstances.
Those extenuating circumstances are spelled out clearly: government officials must have probable cause that criminal activity is afoot (a higher legal standard than “reasonable suspicion”), which is required by the Constitution before any government official can search an individual or his property.
Unfortunately, all three branches of government—the legislatures, courts and executive offices – have given the police state all kinds of leeway when it comes to sidestepping the Fourth Amendment.
As a result, on a daily basis, Americans are already being made to relinquish the most intimate details of who we are – our biological makeup, our genetic blueprints, and our biometrics (facial characteristics and structure, fingerprints, iris scans, etc.) – in order to clear the nearly insurmountable hurdle that increasingly defines life in the United States: we are now guilty until proven innocent.
Warrantless, dragnet surveillance is the manifestation of a lawless government that has gone rogue in its determination to do whatever it wants, whenever it wants, the Constitution be damned.
Dragnet surveillance. Geofencing. Fusion centers. Smart devices. Behavioral threat assessments. Terror watch lists. Facial recognition. Snitch tip lines. Biometric scanners. Pre-crime. DNA databases. Data mining. Precognitive technology. Contact tracing apps.
What these add up to is a world in which, on any given day, the average person is now monitored, surveilled, spied on and tracked in more than 20 different ways by both government and corporate eyes and ears.
This creepy new era of government/corporate spying – in which we’re being listened to, watched, tracked, followed, mapped, bought, sold and targeted every second of every day – has been made possible by a global army of techno-tyrants, electronic eavesdroppers, robotic snoops and digital Peeping Toms.
The government has a veritable arsenal of surveillance tools to track our movements, monitor our spending, and sniff out all the ways in which our thoughts, actions and social circles might land us on the government’s naughty list, whether or not you’ve done anything wrong.
Rounding out the list of ways in which the Techno-Corporate State and the U.S. government are colluding to nullify the privacy rights of the individual is the Biden Administration’s latest drive to harness the power of artificial intelligence technologies while claiming to protect the citizenry from harm.
In his executive order on artificial intelligence, President Biden is calling for guidelines on how the government will use AI while simultaneously insisting that corporations protect consumer privacy.
Talk about ironic that the very government that has been covertly invading our privacy rights wants to appoint itself the guardian of those rights.
Tell me this: how do you trust a government that continuously sidesteps the Constitution and undermines our rights? You can’t.
A government that repeatedly lies, cheats, steals, spies, kills, maims, enslaves, breaks the laws, overreaches its authority, and abuses its power at almost every turn can’t be trusted.
At a minimum, you shouldn’t trust the government with your privacy, property or freedoms.
Whatever else it may be – a danger, a menace, a threat – the U.S. government is certainly not looking out for our best interests.
Remember the purpose of a good government is to protect the lives and liberties of its people.
Unfortunately, what we have been saddled with is, in almost every regard, the exact opposite of an institution dedicated to protecting the lives and liberties of its people.
Indeed, the government has a history of shamelessly exploiting national emergencies for its own nefarious purposes.
Terrorist attacks, mass shootings, civil unrest, economic instability, pandemics, natural disasters: the government has been taking advantage of such crises for years now in order to gain greater power over an unsuspecting and largely gullible populace.
That’s exactly where we find ourselves now: caught in the crosshairs of a showdown between the rights of the individual and the so-called “emergency” state.
All of those freedoms we cherish – the ones enshrined in the Constitution, the ones that affirm our right to free speech and assembly, due process, privacy, bodily integrity, the right to not have police seize our property without a warrant, or search and detain us without probable cause – amount to nothing when the government and its agents are allowed to disregard those prohibitions on government overreach at will.
This is the grim reality of life in the American police state: our so-called rights have been reduced to technicalities in the face of the government’s ongoing power grabs.
While surveillance may span a broad spectrum of methods and scenarios, the common denominator remains the same: a complete disregard for the rights of the citizenry.
With every court ruling that allows the government to operate above the rule of law, every piece of legislation that limits our freedoms, and every act of government wrongdoing that goes unpunished, we’re slowly being conditioned to a society in which the Constitution means nothing.
Any attempt by the government to encroach upon the citizenry’s privacy rights or establish a system by which the populace can be targeted, tracked, monitored and singled out must be met with extreme caution.
Dragnet surveillance in an age of pre-crime policing and overcriminalization is basically a fishing expedition carried out without a warrant, a blatant attempt to circumvent the Fourth Amendment’s warrant requirement and prohibition on unreasonable searches and seizures.
What we need is a digital “No Trespassing” sign that protects our privacy rights and affirms our right to be left alone.
Then again, as I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, what we really need is a government that respects the rights of the citizenry and obeys the law.
Reprinted with permission from The Rutherford Institute.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org
Before leaving town for the 2023 end-of-year holidays, Congress managed to avoid a 12:01am January 1, 2024 expiration of Section 702 of the Foreign Intelligence Surveillance Act (FISA).
It began life in a totally unregulated form as a component of President George W. Bush’s unconstitutional STELLAR WIND electronic mass surveillance program. After the New York Times exposed STELLAR WIND in December 2005, Congress spent more than two years trying to make the illegal program, well, legal. The result was the 2008 FISA Amendments Act, of which Section 702 is the key component.
Simply stated, FISA Section 702 allows the federal government to intercept communications passing through the global telecommunications infrastructure. While the program is ostensibly designed not to deliberately target Americans, in actual practice the text messages, emails, phone calls, and other digital data created or transmitted by Americans are routinely swept up in this electronic dragnet.
In prior years, it meant that millions of Americans had their digital communications captured, stored, and searched as a result of FISA Section 702 collection. On December 5, FBI Director Christopher Wray claimed to the Senate Judiciary Committee that all of that has changed, but most Senators weren’t buying it, especially Senator Mike Lee (R-UT).
Because of the ongoing controversy over Section 702, many wonder whether it will be renewed at all, or in significantly modified form. The battle between the House Judiciary and Intelligence Committees over the issue resulted in competing bills, neither of which made it to the House floor after Speaker Johnson pulled both off the House calendar.
A temporary extension of Section 702, expiring on April 19, 2024, was tacked onto the annual National Defense Authorization Act and passed both chambers before the adjournment of the First Session of the 118th Congress. The Section 702 legislative fight rematch between surveillance reformers and national security hawks will resume in the new year.
If these were normal political times – by which I mean the pre-Trump era – such a debate would matter. But these are not normal times, and the question every American should be asking is this: should any chief executive have this kind of surveillance power at their disposal?
Over the last several months, there’s been extensive coverage on what former President Trump intends to do if re-elected in 2024. A declared presidential candidate who talks openly about a “revenge tour” and firing thousands – perhaps tens of thousands – of federal workers would no doubt wish to avail himself of the very investigative and surveillance tools that were used to target at least one person connected to his first presidential campaign.
If Trump does win and makes good on his promises to cleanse the “deep state” of his enemies and repopulate it with loyalists, exactly what or who could stop him from employing the sweeping and powerful investigative and spying tools used by the FBI, NSA, CIA, and other federal agencies against his political opponents?
Nothing.
Would a Trump loyalist attorney general order a Trump loyalist FBI director to take him into custody if a federal court ruled Trump had violated a surveillance law? No.
Would a Trump loyalist Defense Secretary dispatch troops to arrest him if Justice Department officials refused to do so? No.
Would a Trump loyalist Homeland Security Secretary tell Trump’s Secret Service detail to detain him pending arraignment? No.
Would Supreme Court Chief Justice John Roberts have the authority, much less the armed and sworn law enforcement personnel, to order Trump detained on federal charges? No.
I’ve repeatedly mentioned former President Trump because he is a declared candidate and the current odds-on favorite to again secure the GOP presidential nomination. I’ve also mentioned him because during the last few months of his Administration, he did indeed fire officials who did not support his version of events regarding the 2020 election or who refused to consider using troops against protesters. His past actions make his current rhetoric a potential harbinger of threats to individual liberty and the constitutional order should he be reelected.
But my analysis and scenarios are applicable to any would-be authoritarian president from any political party who could pose a threat to the very survival of the American republic. And that’s why quaint, arcane debates about FISA Section 702 only serve to obscure the vastly larger, infinitely more politically lethal threat to our nearly two-and-a-half century experiment in representative government.
No matter the outcome of the FISA Section 702 battle in Congress, the reality is that the post-9/11 surveillance wars are over and we, the people, lost. The PATRIOT Act is permanent law. If the FISA Section 702 program expires, it could be replaced and revived via executive order.
The American Surveillance State is, at present, a fixed reality–a tool that in the hands of a vengeful despot will make possible a veritable turnkey tyranny overnight. Avoiding that outcome should be the only thing any of us with a commitment to individual liberty should care about in the new year and in the years that follow.
Former CIA analyst and ex-House senior policy advisor Patrick G. Eddington is a senior fellow at the Cato Institute.
