- - Tuesday, January 6, 2015

British philosopher Jeremy Bentham’s Panopticon placed inmates under surveillance during every moment of time.

President Obama’s National Security Agency (NSA) is the digital equivalent of the Panopticon but spies on the entire U.S. population.

The surveillance state in America is a fact. It is no longer a suspicion.

Not after Edward Snowden’s disclosures last year. He revealed the NSA’s collection, search and retention of telephony metadata, i.e., dialing number, number dialed, call duration, and time and date of call, on every domestic or international phone call in the United States since 2006. The NSA can easily connect metadata to individual phone subscribers through the FBI’s national security letters to phone companies or a google search. The NSA collects the metadata without any suspicion that any phone user is connected to international terrorism or wrongdoing — a classic example of dragnet surveillance.

There are no exceptions for lawyer-client, doctor-patient, priest-penitent, or other confidential communications.



New numbers must be invented to describe the volume of the NSA’s files. Its facility in Buffdale, Utah, alone has 5 zetta bytes of storage capacity, or the equivalent of 250 billion DVDs.

The NSA’s unprecedented surveillance continues to this very day with no endpoint. If you are involved in but 15 phone calls per day, the NSA has retained approximately 43,000 metadata entries about you. it constantly monitors the activity of approximtley 700 million land line or cell phones.

The NSA is intercepting the contents of your international communications with persons not known to be in the United States pursuant to general search warrants issued under section 702 of Foreign Intelligence Surveillance Act FISA).

It collects a still unknown volume of information on Americans under Executive Order 12333 issued pursuant to the president’s claimed constitutional powers over foreign affairs.

If FISA authorities and the executive order fall short of providing what the NSA wants to know about you, it probably fills in the gaps through formal or informal agreements to share and exchange intelligence with spy agencies in Canada, Great Britain, Australia, New Zealand and Israel. These so-called “Five Eyes” are not constrained by U.S. laws or the U.S. Constitution.

Think of the incongruity between our surveillance state and our nation’s birth certificate.

The spark of the American Revolution was privacy. It found expression in opposition to British Writs of Assistance that authorized every petty officer to rummage through homes or businesses in hopes of discovering smuggled materials. James Otis condemned the writs as making every officer a “tyrant.” Concurrently, William Pitt the Elder’s electifying address to Parliament in 1763 denouncing an Excise bill was thundering througout the colonies: “The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail — the roof may shake — the wind may blow through it — the storms may enter — the rains may enter — but the King of England cannot enter — all his force dare not cross the threshhold of the ruined tenement.”

The right to be let alone was enshrined in the Fourth Amendment’s prohibition of unreasonable searches and seizures. Justice Louis D. Brandeis elaborated in Olmstead v. United States:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men.”

We have come full circle since the Declaration of Independence and the ratification of the Fourth Amendment.

We have lesser privacy rights as citizens under the president of the United States than we did as colonists under King George III.

Even if you have nothing to hide, you should worry about the NSA’s digital Panopticon.

The NSA’s ethos and secrecy does not inspire confidence that the metadata about your phone calls will not be abused. The director of National Intelligence, James Clapper, lied under oath to the Senate Intelligence Committee in denying the NSA’s collection of data on Americans.

After Snowden’s disclosures, the NSA insisted that its dragnet spying had foiled scores of terrorist plots targeting the United States. But under scrutiny that number slowly diminished until it reached zero.

Congressional oversight of the NSA is farcical. Little is asked. Less is revealed. A state secrets privilege is routinely invoked to block investigations. House and Senate Intelligence Committee members concur that more is learned from newspapers and leaks than from top secret briefings by the intelligence community.

Secrecy corrupts, and absolute secrecy corrupts absolutely. The NSA is no exception. The files it maintains could be used to place citizens on watch lists, to deny employment or credit, to target for an IRS audit, or otherwise.

Even if the NSA stayed within legal boundaries, its Orwellian collection of data enervates democracy. The fear that the NSA could misuse the information discourages citizens from criticizing the government, associating for political purposes, or otherwise participating actively in the political process. Citizen docility invites tyranny. A people of sheep will get a government of wolves.

Supreme Court Justice and Nuremburg chief prosecutor Robert Jackson warned in Brinegar v. United States that weakening the Fourth Amendment’s protection of privacy would crush the spirit of liberty indispensable to government of the people, by the people, for the people:

“[Fourth Amendment rights] … are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.”

The NSA’s authority for its telephony metadata surveillance program expires in June unless Congress extends it. If you care about liberty, you should not tarry in urging your senators and House members to let the program die.

Our nation was founded on the principle that liberty is the rule, i.e.,liberty for its own sake is cherished, and that government encroachments are narrow exceptions justifed only by urgent needs. The NSA’s dragnet metadata surveillance targeting 300 million Americans fails that test.

For more information about Bruce Fein, visit brucefeinlaw.

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