A new report details how intelligence officials are attempting to use a secret court to reinterpret privacy protections guaranteed by the U.S. Constitution.
A review of legal documents and interviews with officials briefed on court hearings, reveals that intelligence officials are attempting to “loosen” Americans’ privacy protections against government search and seizure. The new details come in a report from Reuters, which found that a recent surveillance order issued to Yahoo Inc. was part of a larger push to change the legal interpretation of the U.S. Constitution’s Fourth Amendment.
The unifying idea, they said, is to move the focus of U.S. courts away from what makes something a distinct search and toward what is “reasonable” overall.
The basis of the argument for change is that people are making much more digital data available about themselves to businesses, and that data can contain clues that would lead to authorities disrupting attacks in the United States or on U.S. interests abroad.
Civil liberties groups and some other legal experts said the attempt to expand the ability of law enforcement agencies and intelligence services to sift through vast amounts of online data, in some cases without a court order, was in conflict with the Fourth Amendment because many innocent messages are included in the initial sweep.
Robert Litt, general counsel of the Office of the Director of National Intelligence (ODNI), told Reuters that the legal interpretation of the Fourth Amendment needs to be adjusted. “Computerized scanning of communications in the same way that your email service provider scans looking for viruses – that should not be considered a search requiring a warrant for Fourth Amendment purposes,” said Litt.
Essentially, government officials are arguing that since most people unquestionably release their information to businesses via the Internet, that information should not be subject to 4th Amendment protections and should be available to intelligence officials in their apparent pursuit of terrorism. The new details regarding this push for a post-privacy world comes in relation to recent secretive order issued to Yahoo.
In October 2016, Yahoo Inc. called on U.S. Director of National Intelligence James Clapper to declassify a court order that asked the company to set up a program to scan all incoming Yahoo Mail messages.The request came after reports that Yahoo had secretly installed custom software to search all customers’ emails, supposedly to isolate only emails containing specific data. The program was installed at the behest of the U.S. government, which used an order from the Foreign Intelligence Surveillance Court, also known as the FISA court, to legally justify the violation of privacy.
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Yahoo’s general counsel asked Director Clapper to confirm the existence of the secret order and declassify it so Yahoo officials can publicly comment about the nature of the program. Tech companies like Yahoo are bound by the law to remain quiet about the nature of government surveillance requests and programs. The FISA court is notoriously secretive with little oversight. Critics say a lack of transparency has allowed various federal agencies to run mass surveillance programs with no accountability.
The courts were originally created under the the Foreign Intelligence Surveillance Act of 1978 (FISA) in response to reports produced by the 1975 Church Committee. The Senate panel was tasked with investigating the foreign and domestic surveillance operations by the Central Intelligence Agency (CIA), National Security Agency (NSA) and Federal Bureau of Investigation (FBI) during the 1970s. The Church Committee also released detailed reports on the governments Counter Intelligence Programs (COINTELPRO) that were used against activists and influential voices of opposition during the 1950s and ’60s.
However, since the 9/11 attacks the U.S. government has used the court to secretly interpret surveillance law for law enforcement and intelligence agencies. This allows the police and government bureaucracies to operate in the shadows when monitoring the clueless public.Now, under the protection of the FISA court secrecy, the U.S. government is attempting to find legal loopholes to justify what they are already doing.
With regard to Yahoo, the U.S. government ordered the company to create and conceal a special program on its email servers that would search for specific pieces of information. This is known as an “about” search, the idea being that content is collected because it is of interest rather than being sent or received by an already existing suspect.
Reuters noted that the post-9/11 Privacy and Civil Liberties Oversight Board reported in 2014 that “about” searches “push the program close to the line of constitutional reasonableness.”
In late October, Anti Media reported that the American Civil Liberties Union filed a motion with the secretive FISA Court asking the court to release 23 legal opinions related to the U.S. government’s classified interpretation of surveillance law. The ACLU partnered with Yale Law School’s Media Freedom and Information Access Clinic for a motion calling on the FISC to release all opinions that contain “novel or significant interpretations” of law issued between 9/11 and the passage of the USA Freedom Act in June 2015.
The very existence of a secret court system where judges and unelected officials interpret the law of the land is clear evidence that the United States is not a free country. The U.S. is ruled by a cabal of shadow government agencies, Deep State spooks, corporate titans, and banksters. Only when the people wake to this reality and join the information war to expose these crimes will there be a shift in power. With a new awareness of our true power we can change from our current static, unsustainable systems towards building the solutions for a better world.
Derrick Broze is an investigative journalist and liberty activist. He is the Lead Investigative Reporter for ActivistPost.com and the founder of the TheConsciousResistance.com. Follow him on Twitter. Derrick is the author of three books: The Conscious Resistance: Reflections on Anarchy and Spirituality and Finding Freedom in an Age of Confusion, Vol. 1 and Finding Freedom in an Age of Confusion, Vol. 2
Derrick is available for interviews. Please contact [email protected]
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