The NSA won't tell Congress how many Americans it's spying on because our democracy is broken
By Russell Brandom on April 22, 2016 05:40 pm
(Gabriella Demczuk/Getty Images)
Congress is trying to learn more about the NSA's surveillance programs, and it's not going well. In a letter delivered today to director of National Intelligence James Clapper, a group of 14 legislators (eight Democrats and six Republicans) asked for a ballpark figure on how many Americans are having their data collected under Section 702 of the Foreign Intelligence Surveillance Act.
Section 702 is the legal justification for many of the NSA's most invasive programs, including PRISM. But we still don't have an exact idea of how broad its reach is. So Congress asked! They passed FISA, after all, so it's only right that they should know how it's being used. They don't need an exact number of Americans caught up in PRISM, just a ballpark. Is it a thousand? A hundred thousand? 318 million? Take an educated guess.
"It's not going well"
They've wanted that guess for a while now. Even before Snowden, members of Congress were asking for details on how 702 was being used, but it's gone on for five years now and the NSA has not responded in any way. So today, they asked some more!
You would think there would be some more tangible action Congress could take, given its constitutional mandate to provide oversight of the executive branch, but you would be wrong. In theory, they might repeal FISA, but it's pretty clear that's not going to happen. We've been doing this dance for three congressional terms now and this is basically all that ever occurs.
It's especially weird since the NSA's charter is for foreign intelligence, so the answer to "how many Americans are you spying on?" should really be zero. But we all know that's not true, thanks to documents leaked by a whistleblower who is unable to enter the country on pain of immediate lifetime imprisonment.
It's also worth remembering that the last time Congress tried to hold an intelligence agency accountable for its actions, the CIA literally broke into the congressional offices of the people investigating it, a gross violation of democratic norms for which the agency has still faced no repercussions.
It's enough to make you wonder if the organs of government are fundamentally no longer able to hold these agencies accountable, leaving them to operate as miniature authoritarian claques embedded in a nominally democratic state, slowly leaching power and legitimacy from the elected officials they claim to serve.
Or maybe they just hate Congress and like keeping things secret? Hard to say! Maybe this will be the letter that finally cracks their resolve.
Letter to Director Clapper
Court: Cops Need a Warrant to Open Your Phone, Even Just to Look at the Screen
April 24, 2016 // 01:12 PM EST
In a major decision back in 2014, the Supreme Court finally ruled that police need a warrant to search someone’s cellphone when making an arrest.
That case, Riley v. California, was a major privacy victory. Now, it's being interpreted by a federal court in Illinois to mean that even opening a phone to look at the screen qualifies as a “search” and requires a warrant.
The Illinois case involves a sting operation that ensnared Demontae Bell, an alleged drug dealer accused of illegal possession of an AK-47 assault rifle. An officer testified that while interrogating Bell he pulled out a confiscated flip phone and opened it, revealing a picture of the rifle, which Bell had set as his home screen's wallpaper. That was then used as grounds for a warrant to search Bell's phone for metadata about when and where the photo was taken. The officer claimed he opened the phone in order to turn it off.
But on Wednesday, the judge ruled police have no right to open a suspect's phone and look at the screen without first getting a warrant, even if it's just to turn it off, since the Riley case clearly established doing so is a “search” under the Fourth Amendment.
“Officer Sinks' opening of Bell's cell phone exceeded a 'cursory inspection' because he exposed to view concealed portions of the object—i.e., the screen,” wrote Judge James E. Shahid. “[B]ecause Officer Sinks had to manipulate the phone to view the picture on the screen, that picture was by definition not in 'plain view'.”
That suggests that even if your device isn't locked with a passcode, a cop wouldn't be allowed to turn on the screen and look for incriminating notifications or messages without a search warrant.
The Supreme Court did say there are “exigent circumstances” for allowing warrantless searches, however, including imminent threats to officer safety (checking if there's a razor blade concealed in the phone's case, for example) and preventing destruction of evidence (preventing the phone from receiving a remote wiping command).
“Yet neither the government's response, nor the warrant affidavit, asserted that the officer in this case opened Bell's cell phone out of concern for officer safety or preservation of evidence,” Judge Shahid wrote. Thus, “The search of Bell's cell phone violated the Fourth Amendment prohibition against unreasonable searches and seizures.”
Nevertheless, the judge denied Bell's motion to suppress evidence from the illegal search, reasoning that based on other testimony given about Bell's illegal rifle, “the photo would have ultimately been discovered.”
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