You might have seen the headlines this week—the NSA is no longer collecting your data.
But is that true?
What is it that the NSA can no longer do, and who is doing it for them?
This is a Reality Check you won’t see anywhere else.
In June of this year, Congress passed and President Barack Obama signed into law something called the USA Freedom Act. The idea is simple: your private information is private. The Fourth Amendment in fact, protects it. And if the feds want to see it they need a warrant.
As of Sunday morning, the clock ran out on the old program, which collects metadata of phone calls made in the United States. Now, the NSA will no longer directly collect metadata from your phone calls or text messages.
Instead the phone data will remain with the telecom companies. The NSA will have to go to the Foreign Intelligence Surveillance Court (FISA) to get access. It’s a court established specifically for the purpose of monitoring foreign spies in the U.S.
Does that sound like a better, more constitutional process?
Maybe. But it’s really not.
Why? Because while politicians like to say that the NSA will need a court order, a FISA court warrant is not the same as a constitutional court order. A constitutional court order requires that government or policing agencies explain their need for a warrant on probable cause.
But a FISA court order doesn’t require that probable cause. Instead, it is based on government need—a much lower standard. And if you want the technical details, Judge Andrew Napolitano explains:
Under the Patriot Act, the NSA installed its computers in every main switching station of every telecom carrier and Internet service provider in the U.S.
Under the USA Freedom Act, NSA computers remain at the carriers’ and service providers’ switching offices. But the NSA computer analysts return to their NSA offices and from there they operate remotely the same computers they were operating directly in the Patriot Act days.
That is, of course, only the beginning of the problem with the USA Freedom Act, because while it still does not demand that the NSA follow the constitution when obtaining your phone records, it completely ignores another major issue—all online content (yes, that includes social media).
The problem—and it is a major one—is the reform applies only to phone records. The NSA can continue to harvest bulk communications from the Internet, including social media.
So what you need to know is that while many politicians have applauded the USA Freedom Act as a much-needed reform, and others have warned it will weaken the U.S., the truth is that it doesn’t change anything.
The NSA will continue to take both metadata and content from your phone records and text messages. They will just now do it from a remote location.
They will continue to take your online communications, whether those are email, instant message or social media post.
Bottom line here is that the USA Freedom Act leaves us exactly where we were before Edward Snowden revealed the NSA’s spying program. But it does exactly what politicians want it to do—make you feel better about the NSA is doing which, without question, whether we agree with it or not, according to most experts, violates the Fourth Amendment of our constitution.
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