SPIES ON US Many people believe that the federal government is out of control. Weekly scandals have dominated the headlines, from the IRS targeting non-for-profits, HHS lobbying firms it will regulate to push Obamacare, the Justice Department calling reporters criminals in order to wiretap their phone and computers, and the NSA taking all telephone and internet data without probable cause. In the midst of these growing scandals, the President continues to be missing in (in)action. The President can only have three positions on these matters: he was unaware, he approved them or he does not care. It does not matter whether he is the puppet or the puppeteer; these scandals continue to grow in disturbing scale and size.

The Fourth Amendment to the U.S. Constitution is quite clear:

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by an Oath or affirmation, and particularly describing the place to be searched and persons or things to be seized.

The government, including the National Security Agency (NSA) shall not make unreasonable searches or seizures of personal property without a Warrant issued under oath and upon probable cause that a particular crime may have been committed by a specific person or persons.

The NSA used the Foreign Intelligence Surveillance Act (FISA) to go to a secret court to get extremely broad warrants to collect ALL of the telephone company records (The Guardian newspaper in the U.K. reported it was every Verizon telephone call; others assume all teleco carriers received similar orders). The FISA grants authority to agencies to use means for non-domestic spying. However, these orders appear to be targeting ALL domestic phone records.

The reasons for these broad orders are more suspect than the orders themselves. First, it was justified by stating that there is a provision in the FISA for the NSA to get “business records.” However, every record kept by a company, partnership or individual is a “business record.” Further, the Fourth Amendment does not provide a “business record exception” to obtaining a specific search warrant. Second, it was justified by stating that the NSA did receive a proper search warrant from the secret FISA court. Critics charge that the judges on these secret courts merely rubber stamp requests. The people being served these collection orders, such as Verizon, Google or Apple, are under an immediate gag order not to reveal to their customers that such a seizure order was granted to the government. In some legal circles, these businesses are in a massive Catch-22: there are numerous state and federal privacy laws which protect their customer data files from being copies or released to third parties, and there is a Star Chamber enforcement order which cannot be disclosed or effectively appealed to stop abuse. Third, it was justified by stating that the NSA needs to gather and store all this information in order to analyze “chatter” so as to map social networks to smoke out terrorist activities. Besides, it is only the metadata being collected but those files include phone numbers, GPS locations, movement data, length of calls and exchanges. The NSA says that it obtains an actual search warrant when it needs to access specific account holder information. Critics call the latter argument bogus. If you have a suspect, you can get a constitutional search warrant on a specific person or group and serve that warrant to the telecommunications company and receive specific account records. This is standard police procedure. The collection and storage of billions of telephone records is unreasonable overkill. Critics believe such a massive data base could be corrupted, data mined and misused by the government or its subcontractors at the expense of every citizen's personal privacy rights. Fourth, the NSA says that this tool is needed to keep America safe. It cites to 50 cases where the agency has stopped attacks on American soil. Some local police dispute the NSA collection program had anything to do with thwarting an planned attack on the NYSE after 9/11. In addition, critics find the admitted “success rate” appalling - - - only 50 credible information finds in collecting billions of daily telecommunication records (or more than 3.65 trillion records since 9/11). Fifty divided by 3.65 trillion is such a minute number one cannot justify that it is a successful means of countering terrorism.

Some people have no problem with the government viewing their personal records or events. They claim they have nothing to hide. No harm, no foul. But civil libertarians state that is not the standard for our constitutional democracy. The people are innocent until proven guilty. Under the NSA program, all citizens are presumed to be probable terrorists (since the constitutional standard is probable cause in order to execute a warrant).

Others try to parse the program on tangential technicalities. They claim that no one should have any expectation of privacy when using a cellphone or logging onto the Internet. All one's information is bounced around the telecom network and stored on various ISP and web servers. People know (or should know) that their ISP, social network hosts, search engine providers all data mine each person's key strokes to obtain customer trends, likes, shopping habits to cull direct marketing materials and advertising for business. They also claim that in order to be able to secure persons from attacks, the people must give up some of their privacy. But the founding fathers never adopted that alleged balancing act. In fact, the constitution provides the opposite. It is ironic that those supporters of the program cite security as the number one reason to protect citizens, is the same group that is trying to limit individual gun ownership by citizens provided by the Second Amendment.

But the most chilling aspect of this domestic spying issue is what the intelligence people avoiding saying in Congressional hearings. When asked specifically by a Congressman whether the NSA had the capability to listen in to telephone calls or read any American's email, the NSA representative answered, “No, we do not have the authority to do that.” But that was not the question! The answer was a classic misdirection - - - giving the Congressman the answer he may be looking for ("No") but in a totally different context. The NSA never answered the question whether it has the capability to spy on Americans (apparently it does) but that it does not do so because “it does not have the authority.” Some critics believe the NSA and the federal government has no authority under FISA to do any domestic spying or intelligence gathering against US citizens. The federal government and Justice Department merely pass on that assertion.

The FISA orders to collect all telephone network data and the PRISM program to obtain and store copies of all internet communications is information hoarding at its most extreme level. Yes, we live in an information age. Yes, people are more and more dependent on the internet to conduct their business and maintain interpersonal communications. Yes, people share among themselves information and tidbits about themselves, but they do so voluntarily.

The real issue is the potential abuse of personal information by government officials or their crony friends. It could happen. It will happen. It is happening now. The IRS injected bias, politics and obstructive techniques in reviewing not-for-profit organizations prior to the election. Some political observers believe this conduct had an adverse impact on the Romney campaign. Others believe that the IRS scandal was the tip of the iceberg. Congressional oversight committees have heard testimony that conservative groups and donors were systematically targeted by various federal agencies because of their political beliefs. They received unnecessary audits, OSHA inspections and investigations because they showed up on confidential and private donor lists. There have been newspaper reports that confidential IRS records were given to political groups to use during the campaign, which in itself is a serious violation of the law. So there is a real concern that the people may not trust their government with their personal private information. Adding to the concern is the fact that the IRS will soon have access to everyone's personal health care files (in order to enforce fines and penalties if you do not have the “minimum” health care insurance coverage). There is no stopping an government operative from misuing, manipulating or even changing these collected data files in order to punish, prosecute or exploit any individual.

And where is the leadership of the President on this major privacy and domestic spying issue?

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