Fighting Back Against NSA Spying

It’s a Friday. A citizen wakes up, writes emails and makes a phone call.

The person has a meeting soon, so he pulls up Google Maps to figure out a route.

He then hops into a cab, checks Facebook on his phone, texts his friend and plays ‘Candy Crush’ on his iPhone.

After the meeting he heads to the office, logs on to his computer and G-chats with a friend about where he plans to go for dinner that evening.

Later that evening, after dinner, he uploads a photo from dinner on Instagram. Throughout the day, the government was with him every step of the way.

Until last year, most Americans were unaware that their every move could be tracked by Big Brother.

Through the NSA, the government has the ability to read emails, texts, phone logs, track location and movements, snoop and collect information about individuals through smart phone apps, read g-chats and look at private photos.

The failure to disclose any of this information until recently is why Americans fear for their privacy. And they should. Big Government kept a big secret.

How did we get here? Over the years, technology has rapidly evolved and given power-hungry, unelected bureaucrats the capability to sift through data and find out more information than ever. But just because they can, doesn’t mean they should. But the ease of access to this information was too tempting for government. They snooped, and now we know.

The White House claims that the NSA has no interest in monitoring the activity of “ordinary” Americans. But, most Americans have a hard time accepting that. They question the truth in that statement for the simple fact that had Edward Snowden not revealed what was really going on within NSA in the first place; this snooping and spying would still be going on in the dark shadows of government operations. And, equally important, they know that this snooping and spying is still going on today.

Furthermore, NSA’s own internal watchdog revealed dozens of instances where employees misused their intelligence capabilities to spy on people, even ex-girlfriends. Why? Simply because they can.

The secret truth we are learning is that for years the NSA has quietly snooped and spied on millions of people without a warrant or justification to do so.

In my opinion, illegal activity has occurred. NSA argues that its employees only carry out the actions necessary to find terrorists and protect our country. They have even claimed that terrorist attacks have been prevented as a result of their actions.

If this is true, those success stories should be made public. At a Judiciary Committee hearing last week, I asked Deputy Attorney General James Cole how many criminal cases have been filed as a result of this massive spying operation.

His answer? Maybe one. And he wasn’t even 100% sure of that.

That’s right, the NSA has launched one of the largest data collection programs in U.S. history that monitors who we call, how long we talk to them, who they called, and where our calls were made from, all in order to “maybe” catch one bad guy.

In any event, the ends do not justify the means. NSA has trampled on the Fourth Amendment rights of millions of Americans.

The Patriot Act permits targeted surveillance when that surveillance is justified by a court—it does not permit the intrusive activities brought to light by Snowden.

This old Soviet-style, dragnet approach -- casting a wide net in hopes of catching a big fish -- is not permitted under the law. It is also unconstitutional. It is similar to police searching homes in in an entire zip code looking for one outlaw.

No judge would permit this but that is the type of action the NSA does through massive metadata collection. Government spies simply cannot disregard the law just because it is inconvenient.

The Fourth Amendment gives every American the right to be secure in their homes, papers and effects without fear of government intrusion. The NSA’s actions have been in clear violation of the spirit and letter of the Constitution . Before I came to Congress, I was a criminal court judge for over 20 years. On the bench, I signed thousands of warrants, but not once did I sign a warrant to search homes in an entire zip code in hopes of finding one outlaw who may live there. The same rules apply to technology.

Now that some of the activities of NSA have been made public, Congress needs to reign in the out of control agency. The Executive Branch has acted outside of the law, and so the Legislative Branch must act to restore the rule of law and regain the public trust.

President Obama recently gave a speech about the actions that his administration plans to take to ensure Americans’ Fourth Amendment rights are protected.

His plan is cosmetically pleasing, but it is unworkable. Americans are not buying into the president’s promise to suddenly maintain their privacy from the expanded surveillance state that has developed under his watch.

The president’s directive still allows bulk data to be collected, it just says it has to be stored elsewhere.

Where? That has not been determined.

In the interim, government continues to collect your information. And, after six months, under the Electronic Privacy Communications Act, the government still has the ability to seize information stored by Americans in “the cloud”.

The president has also ordered that a “privacy advocate” be appointed to watch out for the rights of the American people. It is a tall order to expect the country to trust another government bureaucrat.

The days of seizing a haystack in hopes of finding one needle need to be gone forever. Our ancestors eliminated that concept in the Fourth Amendment. Whether it is access to our emails, tracking our cell phones, monitoring who we call, or using drones for surveillance, the fact is technology has moved faster than our laws have been able to keep up.

It is time for Congress to begin a full review of these powers and to strengthen our laws in order to ensure that the Fourth Amendment is properly applied to new technology.

The federal government must stop redlining the Fourth Amendment.

Technology may change, but the Constitution does not.

We can have security without giving up individual freedom because, to quote the constitutional law professor turned president: “There should be no choice between the liberties we cherish and the security we provide.”

And that’s just the way it is.