Congress authorizes federal government to collect and use all private communications by U.S. citizens

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A House Repub­li­can is crit­i­ciz­ing a piece of leg­is­la­tion just passed by Con­gress as gross­ly uncon­sti­tu­tion­al because it essen­tial­ly gives the fed­er­al gov­ern­ment and local law enforce­ment “unlim­it­ed access to the com­mu­ni­ca­tions of every Amer­i­can.”

As report­ed by, Rep. Justin Amash of Wis­con­sin said he found a pas­sage in the Intel­li­gence Autho­riza­tion Act for fis­cal year 2015 that had been amend­ed with a sec­tion autho­riz­ing “the acqui­si­tion, reten­tion and dis­sem­i­na­tion” of all com­mu­ni­ca­tions data from Amer­i­can cit­i­zens. After mak­ing the dis­cov­ery, Amash tried in vain to orga­nize a roll call (on the record) vote on the bill.

How­ev­er, the mea­sure was passed Decem­ber 11 on a 325–100 voice vote (which absolves mem­bers from hav­ing to actu­al­ly iden­ti­fy whether or not they sup­port­ed the leg­is­la­tion), giv­ing the bill a green light to advance. Amash called it “one of the most egre­gious sec­tions of law I’ve ever encoun­tered dur­ing my time as a rep­re­sen­ta­tive.”

[Editor’s note: A “voice vote” is gen­er­al­ly the quick­est kind of vote a delib­er­a­tive leg­isla­tive body can take. The pre­sid­ing offi­cer of the cham­ber mere­ly puts the ques­tion to the body, which then sig­nals by voice “aye” or “nay;” the count is an esti­mate by the pre­sid­ing offi­cer; in close cas­es this can be an impre­cise method but accord­ing to the final “count” in this instance, it appears as if most law­mak­ers sup­port­ed the bill].

A report in Nation­al Jour­nal said 55 Democ­rats and 45 Repub­li­cans opposed the 47-page bill. The online news site also report­ed that the mea­sure had already passed the Sen­ate by unan­i­mous con­sent (no oppo­si­tion), and Pres­i­dent Oba­ma is expect­ed to sign it.

Trou­bling new pro­vi­sion …’

Accord­ing to, the bill will per­mit author­i­ties to mon­i­tor and col­lect Amer­i­cans’ pri­vate com­mu­ni­ca­tions with­out a court order (as required by the Fourth Amend­ment) and then giv­en to law enforce­ment agen­cies for inves­ti­ga­tion and pos­si­ble pros­e­cu­tion. The bill also cod­i­fies and essen­tial­ly legal­izes mass war­rant­less sur­veil­lance, NSA style, on the coun­try — and all with­out so much as a few words of debate.

In a let­ter to his con­gres­sion­al col­leagues — part of his last-ditch effort to thwart the bill — Amash plead­ed with law­mak­ers to reject the mea­sure on con­sti­tu­tion­al grounds:

The intel­li­gence reau­tho­riza­tion bill, which the House will vote on today, con­tains a trou­bling new pro­vi­sion that for the first time statu­to­ri­ly autho­rizes spy­ing on U.S. cit­i­zens with­out legal process. …

Sec. 309 autho­rizes “the acqui­si­tion, reten­tion, and dis­sem­i­na­tion” of non­pub­lic com­mu­ni­ca­tions, includ­ing those to and from U.S. per­sons. The sec­tion con­tem­plates that those pri­vate com­mu­ni­ca­tions of Amer­i­cans, obtained with­out a court order, may be trans­ferred to domes­tic law enforce­ment for crim­i­nal inves­ti­ga­tions.

To be clear, Sec. 309 pro­vides the first statu­to­ry author­i­ty for the acqui­si­tion, reten­tion, and dis­sem­i­na­tion of U.S. per­sons’ pri­vate com­mu­ni­ca­tions obtained with­out legal process such as a court order or a sub­poe­na. The admin­is­tra­tion cur­rent­ly may con­duct such sur­veil­lance under a claim of exec­u­tive author­i­ty, such as E.O. 12333. How­ev­er, Con­gress nev­er has approved of using exec­u­tive author­i­ty in that way to cap­ture and use Amer­i­cans’ pri­vate tele­phone records, elec­tron­ic com­mu­ni­ca­tions, or cloud data.

Sec. 309 gives NSA carte blanche to con­duct sur­veil­lance on Amer­i­cans

The let­ter went on to note that the bill’s sup­port­ers say it con­tains pro­vi­sions that actu­al­ly weak­en the exec­u­tive branch’s abil­i­ty to retain Amer­i­cans’ pri­vate com­mu­ni­ca­tions beyond five years. But he said that, accord­ing to the House Per­ma­nent Select Com­mit­tee on Intel­li­gence, the exec­u­tive branch already gen­er­al­ly fol­lows that guide­line.

In exchange for the data reten­tion require­ments that the exec­u­tive already fol­lows, Sec. 309 pro­vides a nov­el statu­to­ry basis for the exec­u­tive branch’s cap­ture and use of Amer­i­cans’ pri­vate com­mu­ni­ca­tions,” Amash wrote. “The Sen­ate insert­ed the pro­vi­sion into the intel­li­gence reau­tho­riza­tion bill [the night before the House vote]. That is no way for Con­gress to address the sen­si­tive, pri­vate infor­ma­tion of our con­stituents — espe­cial­ly when we are asked to expand our government’s sur­veil­lance pow­ers.”

Oth­er experts say Amash’s con­cerns are well-placed.

This whole thing is so upset­ting to me,” John Napi­er Tye, a for­mer State Depart­ment Inter­net pol­i­cy offi­cial who turned pub­lic whistle­blow­er in July, told US News & World Report.

It is good that Con­gress is try­ing to reg­u­late 12333 activ­i­ties,” Tye con­tin­ued. “But the lan­guage in this bill just endors­es a ter­ri­ble sys­tem that allows the NSA to take vir­tu­al­ly every­thing Amer­i­cans do online and use it how­ev­er it wants accord­ing to the rules it writes.”

He said the mea­sure also allows the U.S. gov­ern­ment to share Amer­i­cans’ per­son­al data with for­eign gov­ern­ments as well.

Will Adams, chief of staff to Amash, said there will be con­gres­sion­al push­back against the mea­sure next year, accord­ing to US News.

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