by Mike Maharrey
When we talk about NSA spying, most people’s eyes glaze over.
They just don’t think it will have any impact on them. After all, the
surveillance agency only spies on foreigners and terrorists, right? And if some
Americans’ data ends up in NSA databases in the process, well, that doesn’t
really matter. It’s the price we pay for security.
But in fact, federal
surveillance and the investigative practices it fosters undermines and subverts
the fundamental rule of law in the United States.
State and local law
enforcement agencies use the reams of data the NSA collects to prosecute
Americans. Most of these cases have nothing to do with terrorism or
national security. In fact, the vast majority relate to the so-called “war on
drugs.” In the process, these state and local cops shred due process,
obliterate the Fourth Amendment and make a mockery out of the “rule of law.”
Using a secretive
process known as “parallel construction,” police build cases on illegally
obtained, warrantless data collected by the NSA and other federal agencies
without anybody ever knowing. These investigations take place in complete
secrecy with no judicial oversight. Oftentimes, suspects and defense attornies
have no idea how police obtained information.
Former NSA technical
director William Binney called parallel construction “the most threatening
situation to our constitutional republic since the Civil War.”
Reuters revealed the extent of NSA data sharing with
state and local law enforcement in an August 2013 article. According to
documents obtained by the news agency, the NSA passes information through a
formerly secret DEA unit known Special Operations Divisions and the cases
“rarely involve national security issues.” Almost all of the information
involves regular criminal investigations.
Through fusion
centers, state and local law enforcement agencies act as information recipients from various
federal departments under Information Sharing Environment (ISE). We also know
that ISE partners include the Office of Director of National Intelligence, which is an
umbrella covering 17 federal agencies and organizations, including the NSA.
While fighting terrorism was always held out as the reason for dragnet spying,
Binney said it was bound to be abused.
“That’s what happens
when you allow this kind of assembly of information – that’s so much power.
That’s like J. Edgar Hoover on super-steroids,” Binney said. “This is not
compatible with any form of democracy at all.”
The feds share
information gathered without a warrant and direct the local police force to
make an arrest. Using parallel construction, investigators then build
their case using normal policing techniques, getting warrants for information
they’ve already obtained. The process serves to hide the illegally gathered
information, creating the illusion of a legitimate case.
“You use that data
to substitute for the NSA data that was originally used to arrest them. And you
substitute the parallel constructed data in the courtroom, which I’ve called
perjury. They’re lying to the courts and they’re subverting our entire judicial
process,” Binney said.
Human Rights Watch issued a report on parallel construction earlier
this year, noting that the process subverts the Constitution and undermines
“fundamental fairness.”
“The United States
Constitution draws on lessons learned from the abuses of the British colonial
era in placing firm restrictions on how the government can behave when it wants
to prove someone has done something wrong. It establishes criteria for
rights-respecting searches and seizures, requires the prosecution to turn over
to the defense any evidence favorable to the accused, and demands that all
trials and proceedings take place in accordance with ‘due process’—that is,
fundamental fairness. However, parallel construction—when sustained through the
end of proceedings—means defendants cannot learn about, and therefore cannot
challenge, government actions that violate these or other rights.”
Even so, a lot of
people simply shrug and parrot the tired, worn “I don’t have anything to hide”
mantra. Ironically, a lot of “law and order” Americans will simply shrug off
gross violations of the supreme law of the land – the Constitution – if it
serves to put some criminals in jail. If you really care about “law and order,
the fact that the government routinely ignores the fundamental legal framework
intended to keep it in check should concern you – even if you don’t personally
think you have anything to hide.
And the fact is you
may well have something to hide. Human Rights Watch offered a poignant warning
about what can happen if government agents can cobble together cases based on
illegally gathered information obtained in secret.
“This impact is not
limited to criminal defendants. If government agents can potentially create
privacy-violating, discriminatory, or otherwise unlawful programs or patterns
of behavior in secret and without facing any negative consequences, the rights
of every member of the public are in jeopardy. Taken to its worst logical
conclusion, parallel construction risks creating a country in which people and
communities are perpetually vulnerable to investigations based on prejudice,
vast illegal operations, or official misconduct, but have no means of learning
about these problems and holding agents to account.”
The secrecy inherent
in parallel construction creates a two-way street. Not only do the feds share
information with state and local police, data also flows the other direction.
Local police gather data using technology often funded by the feds and then
shares the information with massive federal databases. The process not only
facilitates the prosecution of individuals based on secret information, it also
allows secret surveillance programs to remain hidden. Oftentimes, prosecutors
will even drop cases if defense attornies or judges start pushing them to
reveal the source of information. Judges never have the opportunity to
scrutinize surveillance technologies or practices because their use remains
secret. Human Rights Watch Described how this can play out in practice.
“For example, if the
government were to identify a suspect in a robbery by scrutinizing a store’s
security video using a new but flawed facial recognition technology it does not
want to reveal, it could send an informant to talk to the suspect and report
what he said—then suggest in court records that this conversation was how the
investigation began. Such possible uses of parallel construction are especially
troubling in human rights terms because new technologies may be inaccurate
(including, in the case of facial recognition software, for people of certain
racial or ethnic groups) or raise new legal concerns. Unless judges are aware
that such new technology has been used, they will not be able to assess whether
the technology violates rights.”
In late 2013, the Washington Post reported that NSA is
“gathering nearly 5 billion records a day on the whereabouts of cellphones
around the world.” This includes location data on “tens of millions” of
Americans each year – all swept up without a warrant.
Despite concerns,
Congress has done nothing to rein in NSA spying. In January, Congress
reauthorized the FISA Sec. 702. Before approving the six-year extension, the
House voted to kill an amendment that would have overhauled the surveillance
program and addressed some privacy concerns. Provisions in the amendment would
have required agents to get warrants in most cases before hunting for and
reading Americans’ emails and other messages that get swept up under the
program.
Just one day after
Trump signed the extension into law, news came out about the infamous FISA memo. This memo was
available to members of the House Intelligence Committee prior to the vote to
reauthorize FISA. None of this information was made available to Congress at
large. Most telling, every single Republican member of the House
Intelligence Committee voted to reauthorize Sec. 702, and in a heartwarming show
of bipartisanship, six of the nine Democratic representatives on the
committee joined their colleagues.
This is yet another
indication we can’t count on Congress to limit its spy-programs.
But state action can
take on parallel construction. A bill that just passed in Michigan would not
only hinder federal surveillance by denying spy agencies material support or
resources, it would also have the practical effect of blocking parallel
construction. By barring state agencies from “participating with” federal
warrantless surveillance, states can end parallel construction. Under the
Fourth Amendment Protection Act, police would be legally blocked from using
information passed down through these federal information sharing systems.
More states need to
follow Michigan’s lead. If enough states begin to reject federal spying as
a viable investigative tool, we can box them in and shut them down.
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