The Congress last week passed HR 4681, also known as the Intelligence Authorization Act for Fiscal Year 2015, and has now sent this bill to the president for signature into law.
Section 309 contains the following highlights:
Sec. 309, (b), (3), (A): The procedures required by paragraph (1) shall apply to any intelligence collection activity not otherwise authorized by court order… subpoena, or similar legal process that is reasonably anticipated to result in the acquisition of a covered communication to or from a United States person and shall permit the acquisition, retention, and dissemination of covered communications subject to the limitation in subparagraph (B).
Sec. 309, (b), (3), (B): A covered communication shall not be retained in excess of 5 years, unless –
(i) the communication has been affirmatively determined, in whole or in part, to constitute foreign intelligence or counterintelligence or is necessary to understand or asses foreign intelligence or counterintelligence,
(ii) the communication is reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency,
(iii) the communication is enciphered or reasonably believed to have a secret meaning,
(iv) all parties to the communication are reasonably believed to be non-United States persons (apparently Americans do not rate this level of deference from our own government),
(v) retention is necessary to protect against an imminent threat to human life (For five years? How can a “threat” be “imminent” five years after the fact?), in which case both the nature of the threat and the information to be retained shall be reported to the congressional intelligence committees not later than 30 days after the date such retention is extended under this clause;
(vi) retention is necessary for technical assurance or compliance purposes (but they are obviously not referring to compliance with the Constitution), including a court order or discovery obligation, in which case access to information retained for technical assurance or compliance purposes shall be reported to the congressional intelligence committee on an annual basis, or
(vii) retention for a period in excess of 5 years is approved by the head of the element of the intelligence community responsible for such retention, based on a determination that retention is necessary to protect the national security of the United States, in which case the head of such element shall provide to the congressional intelligence committees a written certification describing – (I) the reasons extended retention is necessary to protect the national security of the United States; (II) the duration for which the head of the element is authorizing retention; (III) the particular information to be retained; (IV) the measures the element of the intelligence community is taking to protect the privacy interest of the United States persons or persons located inside the United States (sure…).
Administrative highlights of relevance:
Sec. 309, (a, (1): The term “covered communication” means any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication, including communications in electronic storage (all emphasis and editorializing added).
This bill is plainly illegal, cut and dry. The Fourth Amendment’s prohibitions on such illegal activities really could not be any more explicit or clear:
The right of the people to be secure in their persons, houses, papers, and effects (including electronic/modern effects), against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized (emphasis and editorializing added).
There exists no provision anywhere within the Constitution allowing for exemptions at all, let alone on national security grounds. Now the federal government no longer hides the fact that it is ignoring the Fourth Amendment, now it brazenly acknowledges so in open legislation. There was once a time when this could be debatably rationalized, still wrongly, purely on the grounds of preventing terrorism but subsection (iii) above negates that argument. Perhaps this is at least somewhat praiseworthy, at least insofar as the government is finally being somewhat aboveboard about its misbehavior.
People who continuously rationalize violating the Constitution for national security/anti-terrorism purpose are either ignorant, devious, or just plain old unprincipled and believe in inequitable “rules” application within the power hierarchy.
This, from a Republican House and Democratic Senate – a prime example of the bipartisan illegality that necessarily characterizes Big Government overreach and misconduct. I doubt very much if the president will veto such codified expansion of his (illegal) authority. This sort of Big Government misconduct is, of course, the natural evolution of incrementalist overreach, a subject I similarly discuss here.
I am still awaiting someone to substantively explain to me how Democrats and Republicans are fundamentally different from each other (?). Remember, when the next major incident occurs, as it no doubt will sooner or later, the government will insist it still needs yet more authority to do its job properly – all while never truly “solving” the problems these powers are purportedly meant to address.