Sen. Paul’s team has provided Breitbart News with the entire second hour transcript from Sen. Paul’s remarks, and video of them. He’s now been speaking for more than four hours.
Do you have a right to privacy in those records? I think you can have security and freedom at the same time. But I think if we’re not careful if is going to get away from us. When they found out that nine out of ten intercepts were not the intended target, just ancillary targets they picked up, they also found that 35% contained e-mail addresses that were U.S. Citizens. Let’s say you collect a million pieces of information and you’re just goring this up and you’re intended to go after foreign targets who might be terrorists but over half of this information, much of it incidentally gained are actually U.S. Citizens.
So what this is, it’s sort of an end run, they call it backdoor searches, sort of an end run that has gone around the Constitution, gone around the Fourth Amendment to collect information that we’ve actually said should be illegal to be collected that way but we’re doing it because we’ve done an end run around. Also realize that you can send an email from Virginia to South Carolina and it might go over a server in Brazil. If your email goes over a foreign server, all of a sudden boom, everything’s done, the Constitution’s out the door, they can collect that, even the content.
It’s never revealed to you, nothing is ever presented to you, it’s all done within the Executive branch with no advocate on your side. There are several programs that came out through this that are being collected. It’s not just the bulk collection. There’s a program called Prism that’s been out there for a while. And there’s another one called Upstream.
In Prism, it’s a surveillance program that collects Internet communications of foreign nationals from at least nine major Internet companies. Now, I think this wouldn’t have happened if the Internet companies were not given liability protection. I think what would have happened is they would have said we’re violating our obligations to our customer and we’re going to fight against this. But the PATRIOT Act even made it worse.
The PATRIOT Act made it a crime to reveal that you’d been served with a warrant. So we’ve gone way beyond any typical Constitutional mechanisms. In the Upstream program, a similar thing happens. But this is when the data is collected as it moves across U.S. junctions. The problem is not so much going after foreign communications but going after incidental and collecting incidental communications that involve American citizens.
John Napier Tye was a section chief of the Internet freedom in the State Department’s Bureau of Democracies. He was going to give a speech and I think this is very telling. This is reported in “The Washington Post.” So he had written his speech out and sent it for review. In his speech he said if U.S. Citizens disagree with congressional and executive determination about the proper scope of intelligence activities, they have the opportunity to change policy through democratic process. You’d think who could object to that?
What would his censor say, how can they say we don’t have the right through democratic process to change policies? They him strike through “intelligence processes” because I guess they apparently think we don’t have the democratic ability to change these things. And the sad truth is, it may be true.
Because a lot of this is being done by Executive order. Executive order 12333 has no Congressional oversight. In fact, the question was asked recently of one of the Senate leaders, will you investigate this? Now, there may well be secret investigation going on you there about was some indication it was really outside of our purview. I don’t think anything the Executive branch does should be outside our purview.
The whole idea of having co-equal branches was to have checks and balances. One of the biggest problems I find in Washington is that sometimes the opposition party — if you have a Democrat president and a Republican Congress, you’ll get a little bit of adversity and a little bit of pitting ambition against ambition and check and balance.
But the party that is the same party as the president just doesn’t sound — tend to push back, probably for partisan reasons. That’s not just the other party, it happens when Republicans are in power also.
What happens is the political party that’s the same power as the president tends to sort of be open to letting things move on, just letting the president accumulate more power. But I think this should be telling, that when he said we could change things through democratic action, President Obama’s White House Counsel told him that no, that wasn’t true, he was instructed to amend the line and make a general reference to our laws and policies but to leave out intelligence policies as if we don’t really get a say in what they do as far as what information they collect from us.
John Napier Tye goes on to warn us. He says unlike section 215, Executive Order 12333 authorizes collection of the content of communications, not just metadata. Even for U.S. Citizens. So quite often we’re told that — we were told for years don’t worry, they’re not collecting your data, they’re just collecting the data of foreigners. Turns out that wasn’t true.
Now the big thing they tell us is, well, we’re not collecting the content, we’re just collecting the numbers. But when you read John Napier Tye, the Executive Order authorizes the content of the communications as well, not just metadata and also for U.S. persons. So the question is, if we get rid of pulling collection will the executive continue to do it anyway? The other question is, why doesn’t the Executive stop this? It was started by Executive Action, it could be ended by Executive Action at any time.
Where is the executive? How come the press give him a free pass just to say congress needs to fix this? Sure, I messed it up, I broke it, I’m doing something the second appeals court said is illegal and I’m going to keep on doing it until congress does something. Why don’t we see any questions from the press?
Why don’t we see anybody from the media saying, Mr. President, it’s illegal, you started it, you are performing a program that is collecting all of the phone records from all Americans, it’s been declared illegal from the second highest court in the land, why don’t you stop? I’m — I’ve not ever heard him asked the question.
With the Executive order, apparently because they say it’s article 2, and that article 2 to them means they can do whatever they want without any oversight by congress, the conclusion by John Napier Tye there is nothing to prevent the N.S.A. from collecting and storing all communications. This concerns me. The president instituted or brought together a group called the review group on intelligence and communication technologies.
And in it they came forward with some recommendations. Recommendation number 12 was that all of this data, all this incidental data that’s becoming part of these databases that is collected under these authorities, the executive order, should be immediately purged unless there is a foreign intelligence component to it.
The review group further recommended that a U.S. Persons’ incidentally collected data should never be used in a criminal proceeding against that person. So now we’re talking about what I was talking about earlier. If you’re going to go away from the Constitution, if you’re going to say to catch bad guys we can’t really have the Constitution, we’re going to have to have a bar that’s easier to cross and allows us to do kind of what we want, wouldn’t you want to exclude American citizens from being convicted or put in jail for a crime under a lower standard?
It’s kind of like this — the question is, if the government can come in without a valid search warrant, without announcing that they’re in your house, collect all of your data, would you want them to have hours and hours in your house without any probable cause and a then start arresting you for this? There are rumors that we are doing this.
There are rumors that intelligence warrants are being used to get regular criminals. What they do is collect information through data, metadata, analysis, they get all of this, get enough to convince — be convinced you’re a drug dealer and then arrest arrest you using a traditional warrant.
Section 213 this sneak and peek where they go in without announcing, 99.5% of the people arrested are actually people who committed a domestic crime. They’re not terrorists. So we’re told have you to have a PATRIOT Act to get terrorists and yet what by really find is that they’re using it in a way that was not honest. They’re using a lower standard, a standard less than the Constitution, and they’re using that standard then to arrest people for basic domestic crime.
The president’s review commission that in recommendation number 12 recommended that this incidentally collected data not be used criminally against anybody, they gave the recommendations to the White House. The White House stated that the adoption of these recommendations that they had requested would require significant changes. And indicated that it had no plans to make any changes. So the president’s open review commission says there’s great danger in using a lower, less than Constitutional standard to collect great amounts of information that can be searched, there’s a great danger to privacy.
There’s also great danger to using information collected outside of the Constitution, there’s great danger in then using that for domestic prosecution. And the president said he has no intention of any changes. When I think of this president, it’s probably what disappoints me most.
There were times; there were fleeting times when this president was in the U.S. Senate that he stood up for the Constitution. In fact, there’s a quote from the president when he was running for office, there are many quotes but one quote saying that the warrants that are issued by police, National Security Letters, should be signed by a judge, the very amendment that I will try to get a vote on, he seemed to have supported. But now his administration is issuing hundreds of thousands, starts out with a few, 47, a couple hundred, now it’s in the thousands.
Any time you give power to government, they love it and they will accumulate more. Any time you give power to government and expect them to live within the confines of the power, they will not live within the confines of power unless you watch them. Like a hawk. You’ve got to watch them. You have to have oversight.
We are at a point now where we have enormous bulk collection, enormous collection of American citizens’ data, one program we know almost nothing about, and yet it goes on with no debate.
The Executive order from 1981 has been transformed into a monster with tentacles that reaches into every home in our country. The collection of records that is going on is beyond your imagination and we need to know about it. There needs to be a public debate. It’s become even more pressing that we have this public debate because the problem is that you have the president and you have the congress and you have the intelligence community not being honest with us.
So the fact that the director of national intelligence would come to congress and lie and say they’re not collecting this information and then when they do admit to it say, oh, by the way, it’s working really well, we’re capturing all kinds of terrorists but they withhold all of the informs, we rely on them to be honest, present truthful information to us. This is a big problem.
Currently, the courts haven’t, I think, brought their rulings up to date. The debate, though, has been going on for a long time. In 1928, there was the Olmstead case. The Olmstead case went against those of us who believe in privacy, and I believe that that case still lingers on even though it’s been reversed. In the Olmstead case, Ray Olmstead was a bootlegger and the government decided to eavesdrop on his conversations but they did it without a warrant. They could have gotten a warrant.
Who knows why they didn’t get the warrant, but they didn’t get a warrant. But the court ended up ruling that phone conversations were not protected by the Fourth Amendment. This was a sad day in our history when this happened in 1928. The dissent in that case was Justice Brandeis, and as so often occurs in our history, sometimes the dissent becomes the majority opinion and becomes profound because it was there at the time.
Harland’s dissent in Plessy v. Ferguson is the same way. Nobody refers to the majority in saying separate is equal. They were wrong. Same way with the Olmstead case. People now remember Justice Brandeis. It is probably one of the most famous quotes in jurisprudence, that the right to be left alone is the most cherished of rights, that it’s the most valued among civilized men.
We have this debate still sometimes, though, because some conservatives say, well, there is no right to privacy. I don’t see it in the Constitution. Conservatives who argue there is no right to privacy aren’t remembered the Ninth and Tenth Amendment very well, particularly the Ninth Amendment. The Ninth Amendment says that all the rights aren’t listed, but those that aren’t listed are not to be disparaged. Even our Founding Fathers worried about this.
Our Founding Fathers came forward and they at first thought we would do just the Constitution without the Bill of Rights. And some of them worried, they said if we do the Bill of Rights, people will think that’s all we have. If we list ten different amendments, they’ll think that’s all of our rights. And so they finally convinced everybody to go along with it by saying we’ll put in the Ninth and Tenth Amendments.
The Tenth Amendment limiting the powers and saying only the powers enumerated are given to the federal government. Everything else is left to the states and the people respectively, but the Ninth Amendment, which is in many ways sort of the stepchild of our amendments hasn’t been adequately, I think, adhered to or recognized. It says those rights not listed are not to be disparaged.
Sometimes we have this discussion because some people say what has to be enumerated. I agree completely if we’re talking about the powers given to government should be enumerated. They’re few. Few and limited the powers given to the government. But it’s the opposite with your rights. Your rights are many and infinite. Your rights are unenumerated and you do have a right to privacy.
So while the word privacy is not in the Constitution, in the Fourth Amendment, though, they do talk a lot about your privacy. It’s about your home. It’s about your home is your castle. The exact words of the Fourth Amendment are the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause, supported by oath or affirmation. And particularly describing the place to be searched and the person and things to be seized.
The reason why we should worry about whether or not a warrant is individualized is we’ve had some tragic times in our history. During World War II, we didn’t individualize the arrest of Japanese Americans. We didn’t say that is so and so who lives in California and we think they are communicating with Japan and telling our secrets.
We indiscriminately rounded up all of the Japanese and incarcerated them. There have been times in our history when we haven’t acted in an individualized manner. It happened throughout the south in the old Jim Crow South. We told people that we were going to relegate them to a certain status based on a general category. So when we talk about individualizing warrants, we’re talking about trying to prevent bias from occurring.
Now, bias can occur for a lot of different reasons. I tell people you can be a minority because of the color of your skin or the shade of your ideology. You can be a minority because of your religion. You can be a minority because you home school. But the thing is, is that if you are a minority, if you are a dissenter, if you dissent from the majority, you need to be very, very aware of your Constitutional rights, very, very aware of the Bill of Rights.
The Bill of Rights isn’t so much for the prom queen. The Bill of Rights isn’t so much for the high school quarterback. Many people in life always seem to be treated fairly. The Bill of Rights is for those who are less fortunate, for those who might be a minority of thought, deed or race. We have to be concerned about the individualization of our policies or we run the risk, we run the risk and the danger of people being treated in categories.
Right now, we’re treating every American in one category. There is a general veil of suspicion that is placed on every American now. Every American is somehow said to be under suspicion because we’re collecting the records of every American.
When we talk about metadata and whether or not or how much it means and what the government thinks they can determine from metadata, the people who say don’t worry, it’s just your phone logs, it’s no big deal, it’s just boring old business records should be a little bit concerned by the words of one former intelligence officer who said that we kill people based on metadata.
He wasn’t referring to Americans. He’s talking about terrorists. But we should be concerned that they are so confident of metadata that they would kill someone. So instead of us believing that metadata’s no big deal and it just should be public information and anybody can have it, realize that your government is so certain of metadata that they would kill an individual over it. That seems to me to make the point that metadata’s incredibly important if we would make a decision to kill someone based on their metadata.
The Electronic Frontier Foundation has done a lot of work for privacy and deserves a lot of credit. Mark Jaycox writes in an issue from last year that it is likely that the N.S.A. conducts much more of its spying power under the president’s claimed inherent powers and only governed by a document originally improved by an executive order. So while we’re superficially having a debate over the bulk collection of records that some claim were authorized under the PATRIOT Act , Section 215, there’s a whole other section that some privacy advocates are worried about that’s even bigger.
I had a meeting recently with one of the founders of one of the huge social communication companies, and he told me that he thinks that we’re missing some of the debate here because he says everybody’s talking about bulk collection of your phone records.
He’s convinced that there’s ever so much more being collected through back-door channels. These back-door channels can occur in two ways. They can occur one way by going and looking at foreigners’ information, and then coming through the back door back into our country and looking at Americans’ information, but then that American information has tentacles and spreads and becomes this enormous grouping of incidental information.
In fact, some have said that it’s nine out of ten pieces of data pulled in aren’t about a terrorist, they’re just incidental stuff. What the president’s review commission said is we should delete that. Once we find it’s not relevant to an investigation, the amazing thing to me is, is that even people who support the PATRIOT Act — and I don’t. I think the PATRIOT Act lowers the constitutional standards and risks our freedom and our liberty, but even for those who think the PATRIOT Act is fine, they say that the PATRIOT Act never was intended to do this.
So if you want to ask yourself is the government overstepping, even the authors of the PATRIOT Act are now telling us that the overstepping is to such a degree that they think the PATRIOT Act doesn’t justify it. In fact, that’s really what the court ruled recently. I had hoped the court would rule that the bulk collection, the grabbing up of all your records, that it was unconstitutional, but they actually simply ruled that the PATRIOT Act does not sanction it.
The PATRIOT Act does not give the authority to the government to do this. And so it’s a pretty amazing sort of set of circumstances, is that the government has taken something that was intended in one way, completely transformed it, and then when they are rebuked by the court, they’re not chastened at all. So I still wonder why no one has had the guts or the wherewithal to ask the president why doesn’t he stop this now? The president could today listen to this speech on the floor of the Senate and he could change his mind. He could this afternoon, with his pen — he says he has his pen and his cell phone — he could immediately stop the bulk collection of data.
In fact, all of the alternatives he could probably do now. He could also say that he’s going to collect the data with a warrant. He has all of that power. Someone should ask the president, Mr. President, why do you keep doing something the court has said is illegal? Why do you continue doing this, and why won’t you stop, and how can we possibly think that it is a responsible answer to say oh, I’ll stop when they make me? His own privacy commission says that what he is doing is illegal and should stop.
One of the things that people are worried about is that the government is forcing their way into the code source of different, Facebook, Google, different Internet companies. There’s a couple of things that are occurring because of this. If you live in Europe, if you’re Angela Merkel or anybody in America, you might not want American stuff anymore. So there are already rumors in discussion that billions of dollars — there have been some estimating that over a hundred billion dollars have been lost to where we have been a dynamic leader in software and hardware, in the internet.
People don’t want our stuff because they don’t trust us anymore. One of the reasons they don’t trust us is this. We have a group called the tailored access operation, targets system administrators and installs malware while masquerading as Facebook servers.
That’s a little scary, that you go on Facebook and somehow malware is getting into your computer and then searching and allowing them to know everything that you’re doing on your computer. If you have a warrant, you could — to my mind, you can do a host of these things, but do it to someone you have suspicion of. I think we’ve made the haystack so big, no one’s ever getting through the haystack to find the needle.
What we really need to do is isolate the haystack into a group of suspicious people and spend enormous resources looking at suspicious people, people who we have probable cause. If you think of almost every instance — I mean, go back to 9/11. You’ll have people come forward with the ridiculous assumption that if we had the PATRIOT Act, we wouldn’t have had 9/11. They say oh, we would have caught those two terrorists in San Diego. And I’m like, you mean the two terrorists that were living with a confidential informant for a year?
We knew who these people were. They weren’t talking to each other. It wasn’t for a lack of gathering information. All this incidental and all this grabbing up of bulk records, that isn’t what we needed. We needed the C.I.A. to call the F.B.I. We needed further the F.B.I. to call Washington and for somebody to be listen to them. The 20th hijacker, a guy named Moussaoui, was captured a month in advance. We’ve got him in Minnesota; we’ve got his computer. He was captured because people said he was from a foreign country and he was attempting to learn to take off planes but not land them.
The F.B.I. Agent there ought to be given a Medal of Honor. Instead of giving the Medal of Honor to the head of the F.B.I., we should have fired the head of the F.B.I. And this F.B.I. Agent should have been made the head of the F.B.I. He wrote 70 letters to his superiors. He caught the 20th hijacker. He should be a well-known hero on the lips of every American. But his superior got 70 letters and did squat.
I have no idea what happened to his superiors but nobody ever was fired for 9/11. Instead of firing the people that didn’t do a good job, we gave them medals. The guy who did a good job, I don’t know what happened to him. And what we did is we decided we would collect everybody’s information. That we’d sort of scrap the Bill of Rights.
I’ve met a lot of our wounded soldiers. I’ve met young men that have lost two, three arms; two, three limbs, four limbs sometimes. I’ve met people who are paralyzed. To a person, when I ask them what were you fighting for, they tell me the Constitution.
They tell me our way of life, for our Bill of Rights. Don’t you think they’d be disappointed to find out that they went over and they risked life and limb and give up part of their bodies and came home and while they were gone we gutted the Bill of Rights.
Not only did we gut it, but we don’t have time to debate it. We just willy-nilly say that’s fine. We don’t have time to debate it. We’ve known for three years this debate was coming up, and yet we squash a bunch of bills in the last week and we’ve got no time for the debate, no time for amendments. No time to discuss whether or not we’re willing to trade our liberty for security.
Franklin said, those who trade their liberty for security may wind up with neither. This is a very important debate that we need to have in the public, in the open. We worry about — or some of us worry that just in discussion of bulk records, we may not get to other programs the government just simply won’t tell us about.
A lot of them are written about, though. In another episode of the Electronic Frontier Foundation’s newsletter, they talk about a program called Muscular. Muscular is a program that is siphoning off data between different data centers like Yahoo and Google sometimes have have — at least did have communication between them that was encrypted.
Your information was encrypted going to the data center but in between data centers they weren’t encrypted and the government is siphoning all of this off through executive order. I don’t know whether it’s foreign. I don’t know whether it’s incidental American. I don’t know what’s being collected and we have no oversight, no ability to vote on whether or not we continue this program or discontinue this program.
The companies are sometimes not notified of the warrants. Or if they are notified of the warrants, are told that they can’t talk about them. They’re gagged. This is the kind of stuff that we need to have in the open. Some of the information that people are talking about that the N.S.A. collects on Americans are contacts from your address book, buddy lists, calling records, phone records, e-mails. And then they put it all into a data and I think the program is called snacks.
They put it all into this data program and develop a network of who you are and who your friends are through all the interconnection of all your contacts and friends. And if you ask them is any of this protected by the Fourth Amendment, the answer you’ll get is the Fourth Amendment doesn’t protect third-party records.
So really, we’re going to have to have this go to the Supreme Court. I said earlier in the Olmstead case in 1928, Justice Brandeis is in the dissent. The vote is 6-3, I believe. And the court rules that phone conversations have no protection.
So we started out with a bad history. The phone was just coming around; becoming commonplace and the Supreme Court said your conversations don’t have any protection. This went on for 40-some-odd years until we get to the late 1960’s, I think 1968 in the Katz case and then they say there is an expectation of privacy. So that was a big blow for those of us who believe in privacy, that we finally decided your phone conversations are private and that you have an expectation of privacy and that it should take a warrant with your name on it, individualized with probable cause.
But we go another dozen years; 10 to 12 years and we get another court case called Maryland vs. Smith. And in it here, though, the court rules that your conversations are protected from the government, that the government has to have a valid warrant.
But they end up saying that your records don’t and that the government is allowed to eavesdrop and pick up and accumulate records about your phone calls without a warrant. I think this was a big mistake. The case in Maryland vs. Smith, though, is one sort of petty criminal and a few records over a few-day period. The question that I’d like to see before the Supreme Court would be: Is that equivalent to all Americans, all Americans’ phone records all of the time?
There was at least some kind of investigation going on of this person. They didn’t do it the right way. I think they should have gotten a warrant. But there this case what the government is arguing is that every one of you are somehow relevant to an investigation for terrorism. That’s absurd.
And finally we get to the appellate court last week, and the appellate court says that, they say, frankly, it is absurd to say that everybody in America is relevant to an investigation. Not only is it absurd. Not only is it trifling with your privacy and your right to be left alone, but it takes our eye off the prize.
Why do you think it is that there’s not enough human analysts to know that Tsarnaev, the Boston bomber, was plotting to bomb the Boston Marathon? Why did we not know he got on a plane to go to Chechnya. One of the things we were told at least in the newspaper was that he had an alternate spelling of his name. So we went 15 years and we can’t figure out that sometimes these named are spelled a little different and we didn’t know he flew back and was radicalized in another country?
I’m for spending more time and more money on analysts to investigate and look at the data connected to people of suspicion. But I don’t want to spend a penny on collecting all the information from all of the innocent Americans and giving up who we are in the process. We have to fight
against terrorism. We have to protect ourselves. But if we give up who we are in the process, has it been worth it?
Are you really willing to give up your liberty for security? What if the security you’re getting is not even real? They said the 52 people they caught through the bulk collection program, the president’s privacy, his own privacy group investigated and said not one person was captured captured — a possibility of one but they already had information on him from some other source. Under the executive order we’re still not talking about the PATRIOT Act.
We’re talking about something nobody knows much about at all. No common member has been, to my knowledge, informed of what’s going on in this program. None of those, not on the intelligence committee. But they have something called, with this information called the special procedures governing communications metadata analysis. This is allowing the N.S.A. To use your metadata, phone records, et cetera, who you call, how long you speak, under the PATRIOT Act and Section 702 to create social networks of Americans.
So not only are we collecting your data because the government says and realize this, many of your elected officials are saying this, that you have no right to privacy. The Constitution be doesn’t protect your records. They’re collecting all of your records, some of it incidental, but they’re creating these enormous data banks. But then they’re connecting metadata to other metadata to create social networks of who you are. You should be alarmed.
You should be in open rebellion saying enough’s enough. We’re not going to take it anymore. We should be in rebellion saying to our government that the Constitution that protects our freedoms — that the Constitution that protects our freedoms must be obeyed. Where’s the outrage?
I tend to think young people get it. Young people, you see them, their lives revolve around their cell phone. They realize if I want to know about their life, I collect data from their phone. Not the content of their phone calls, if I collect the data from their phones that I can know virtually everything about them.
Do we want to live in a world where the government knows everything about us? Do we want to live in a world where the government has us under constant surveillance? They’ll say we’re not looking at it. We’re just keeping it in case we want to look at it. The danger is too great to let government collect your information. And I think there is a valid question whether or not simply the collecting of your information is something that goes against the Constitution.
One of the other areas where we’re seeing collection of data — I mean, it would boggle your mind. We’re not talking about just one, one program. We’re talking about dozens of programs the government has instituted to look at your stuff. There’s another group called epic. Electronic privacy Information Center and they talk about suspicious activity reports. These are reports that your bank has to file whenever you deal in cash at the bank. There are certain dollar limits. And they think, well, gosh, someone is probably a bad person if they’re putting $9,500 in cash in the bank.
Well, turns out a lot of honest, law-abiding people do that. Not too long ago there was a Korean husband and wife, they owned a grocery store, they dealt in a lot of cash and they were very successful and they deposited three times a day over $9,000, $8,000 to $10,000.
They tried to stay under $10,000 because there was all kinds of paperwork if you’re over $10,000. The government said you’re structuring your deposits to evade the people. You must be guilty of something. The government then can accuse people of a crime and take their stuff.
There’s something called civil asset forfeiture. It doesn’t require that you be convicted. It doesn’t even require that you be accused of something. There was a story not too long ago in Philadelphia, Christo Sourovelis. The teenager was selling drugs out of the back of the parents’ house, so they caught the kid and they were punishing him.
But they decided they would punish the parents too. They confiscated the parents’ house, evicted the family. Teenager makes a mistake selling drugs. What does the government do? They take the parents’ house. You think that is going to help the kid or help anybody get better in the situation by taking the house? But here’s the rub.
The kid didn’t have to be convicted of anything. The kid didn’t own the house; he was just their kid. If we allow all kinds of data to be out there to catch people and then we’re not even going to require that you’re convicted of a crime before we take your stuff, you can see the danger of allowing so much data to be collected. But we are currently convicting and taking people’s stuff or their money simply based on what they’re using it for. “The Washington Post” did a series of articles on this. It turns out that most people having their stuff taken are poor, often African-American, often Hispanic. But for the most part, poor.
One guy was here in Washington, had $10,000 and he was going to buy equipment, like a refrigerator, commercial oven or something for his restaurant. They took his money, took him years to get it back and he only got it back because the Institute of Justice defended him in getting it back. But it turns justice on his head because he was basically considered to be guilty until he could prove himself innocent. Realize then that people like this are sometimes being picked up because of something called suspicious activity reports.
Suspicious activity reports makes your bank into a policeman or policewoman. When you deposit things, they are obligated to report you to the police. I mean, to the government. Does it sound something like 1984? Does it sound like when you have informants out there everywhere, see something, say something, that your banker is going to call the government if you put cash in to the bank? The burden should always be on the government to prove that you’re guilty of something.
You should never be convicted, you should never be punished without there first being a trial, without there first being evidence, without there first being a trial with a lawyer, with a verdict. Some of this is gone into the war on drugs. And the war on drugs has a lot of problems, but part of it has been the abuse of our civil liberties. But also part of the war on drugs has been that there’s been a disparate racial outcome. What do I mean by that?
There have been instances and if you look at the statistics, three out of four people in prison are black or brown for nonviolent drug use. But if you look at the surveys and you ask yourself are white kids using drugs the same as black kids? It’s equal. The white kids are 80% of the public. How did we get the reverse? Where 80% of the population in jail are black or brown. It is a problem and if we can’t figure it out you’re going to have to continue to realize why people are unhappy.
If you want to know why there is unhappiness in some of our cities, read “The New Yorker.” They did a story about Kalief Browder, a teenager from the Bronx. He lived in a poor situation, his family had no money. He had been in trouble before. But he was arrested and sent to Riker’s Island. 16 years old, arrested, sent to Riker’s Island, his bail was $3,000. His family couldn’t come up with $3,000 and he was kept for three years without a trial. At least some of it was in solitaire confinement.
He tried to commit suicide. Can you imagine how he must feel? Can you imagine how his parents must feel? Can you imagine how his friends might feel? Do you think they think justice is occurring in our country? We have to be careful we don’t let slip away who we are, in the fight against terrorism, against drugs. Because what happens is people take things that are bad — terrorism is bad, drugs are bad. But we take the fight against something that’s bad, we forget about the process and rule of law and we forget who we are in the process.
But if you want to know why people are unhappy in some of our big cities, you want to see that unhappiness in the street, Because some people don’t think they’re getting justice, and I frankly agree with them. Think there isn’t justice in our country when this occurs. Originally, we had the Constitution. After 9/11 we got the PATRIOT Act. The biggest change between the Constitution, which provided protection from people, bad people, for 200 years or more.
The biggest deal is we changed the difference between how we would give out warrants. I remember having this debate about three years ago, when we talked about the PATRIOT Act , I was walking along and talking to senator and eaves — and he was alarmed that the PATRIOT Act would expire at midnight. What would we do? And I was, like, couldn’t we just live under the Constitution? We have all kind of tools. There is a he almost no judge in the land that’s going to turn down a warrant. The FISA warrants, the ones they give for security, it’s 99.9% of them are approved. Couldn’t we out warrants? They say it takes too long.
In the blinks of an eye if John Smith is thought to be a terrorist and he called is 00 people, in the blink — in the blink of an eye, I could look at the list. Are any of them from a foreign country? Are any of them on another list from somebody calling from a foreign country? There are ways to look at this where we would simply get a warrant and the next hop and the next hop. There’s no reason why we can’t catch terrorists the same way we catch other bad people in our society, by using the Constitution.
Initially the government had to show evidence that you were an agent of a foreign power. This is no longer true. Now all you have to do is make a broad assertion that the request is related to an ongoing terrorism investigation. The problem in the FISA court is that when they take to you this court, it’s secret, you don’t get your own lawyer, and basically the government says to the FISA government judge, the government says, its related to an investigation, but I don’t believe they’re forced to give information showing that it’s related to the investigation.
And in some ways I think we’ve gone too far because what you end up having is you have people who are saying it’s related, but the question is, is there any evidence that there’s a relation to it and how could there be a relationship everybody in America to an investigation? We also often have given gag orders. This is one of the big complaints of the Internet companies.
They get order after order after order, national security letter, they get all of these success suspicion list warrants and then they are told they can’t talk about it or they would go to jail. There are some people who get gag warrants who were librarians who for decades couldn’t talk about it. The American Civil Liberties Union has written that the PATRIOT Act violates the Fourth Amendment which says the government cannot conduct a sear obtaining a warrant and show probable cause. The A.C.L.U. goes on to say that it violates the First Amendment’s protection of free speech by prohibiting the recipients of search orders from telling others. These are the gag orders.
They also say that it violates the First Amendment by effectively authorizing the F.B.I. To launch investigations of American citizens in part for exercising their freedom of speech. Now, they went back in and they wrote the rules and said, oh, you’re not supposed to do it if it violates someone’s freedom of speech. But the bottom line is that the opening that we’ve given to the intelligence community is so wide that there are, for all practical purposes, no limitations on the gathering of your information. In the Smith v. Maryland case we kind of get to the point where we have said that telephone conversations are protected but we said trace-and-trap and pen register where they collect your data by phone calls is not.
The problem is — and this is a problem that needs to be corrected by the courts — at this point they’re essentially nonexistent. There are no protections in the court for any kind of warrant that has to be gotten for any kind of metadata. The F.B.I. need not show probable cause or even reasonable suspicion of criminal activity. It must only certify to a judge, without having to prove it, that such a warrant would be relevant to an ongoing investigation.
Also, typically in the past when we gave warrants for wiretaps, they were to entities. You had to name the entity. But now we’re given — the ability to collect data, trace-and-trap, pen register nationwide, this is a severe departure from what we had had in the past because typically warrants were given under the judge’s jurisdiction. So within a region. But now we have a blanket order that says we can collect any of your phone records anywhere any of the time across the whole country. And this goes against the history of the way we have had jurisprudence.
We talk a lot about phone data, but your e-mails are in there, too. Interestingly, your e-mails, after six months, have no protection at all. So any e-mail that you have on your computer after six months has no protection at all. Up to six months, there’s a little bit of protection, but the government is allowed to look at, without a probable cause warrant, is able to look at who you’re communicating with and the header on the subject line.
The government is also able it look at through metadata the web sites that you visit. You can see how — that various groups would say that that might be an infringement of their First Amendment because, let’s say the government now knows that I go to Electronic Frontier Foundation or I go to A.C.L.U.
I’m concerned with civil liberties. Am I a potential problem to the government? I’m concerned and I’m a critic of the government. Is it a problem that the government now knows what web sites I go to? The government would say no that’s not what we’re doing. Here’s the other — the other part of that question is maybe not yet. Maybe not now.
But you can also squelch and severely restrict First Amendment practices if just simply the fear of the government looking at it is changing my behavior. There’s already evidence — there have been surveys — saying that 20%-25% of people doing things online are changing their behavior because they are frayed of the government. — Afraid of the government. The government argues that the list of web sites, web sites addresses, are simply transactional data. But I think there’s much more you can garner from this data.
The PATRIOT Act that is due to expire is just three sections. Interestingly, the complaints that I have are a lot over Section 215 which the government claims is their justification for collecting all of your phone records. Now, the courts have said the appeal court last week said that the business records does not give them the authority to collect your records. In fact, the court has been very specific that it’s illegal.
The president is currently ignoring the court and the president continues to collect your phone data, all of your phone data, all the time as much as they can get. They have not changed any of their behavior that I know of since it was declared to be illegal. Some of the changes — I would repeal the whole thing. I would repeal the whole PATRIOT Act.
But some of the changes that I would favor if we were allowed to change it, if we could get a consensus in this body that would mirror the consensus that I think is in America, with once you get outside the beltway of Washington and go back into America and ask them, are they for this, the vast majority of people think the government shouldn’t collect all of their phone records all of the time. But there are some changes we could make in this. I think the first thing we ought to do is not replace the system but to basically say that we’re not going to collect data in bulk. That we’re not going to collect your phone records, your credit card information, your e-mails, where you go on the web.
We’re not going to collect that in bulk. I think we could change the PATRIOT Act to say we’re only going to collect data that has to do with someone who’s suspicious, that we have presented some suspicion to a judge and that the judge says that there’s probable cause. The standard is not that hard. It’s hard for me to imagine, in fact, a judge saying no. Judges almost always say yes.
If at 3:00 in the morning tonight there is a murderer inside a house in D.C., what do you think the odds are that when the police call for the warrant that the judge says “No”? Virtually nonexistent. Most of us want the judge to give them permission. But it is the checks and balances that we want so that we don’t have police who operate on bias or bigotry or religious discrimination.
We want people to be bound by the rule of law. And it is kind of interesting because you’ll hear Republicans sometimes give lip service to the rule of law, but in giving lip service to the rule of law, what happens is they seem to forget the whole idea of privacy. They’re for it in economic transactions but not so much with regard to personal liberty.
“The New York Times” has written and talked about some of the economic effects of this. In an article by Scott Shane a couple of years ago, he talks about the idea that foreign citizens, many of whom rely on American companies for e-mail and internet services, are concerned about their privacy. You can say you don’t care about foreigners and, you know, they don’t get the same standard as we get. You can understand maybe there is a lower standard. But realize, if we’re going to say the standard is quite a bit different and that there are no protection for anybody’s data on the internet, realize that that standard is going to scare people in other countries away from our stuff.
It’s going to scare people away from our e-mail companies, scare people away from our search engines, and I think if you’ll talk to any of these companies out there and some of these companies are the greatest success stories in our country. You think of the Internet revolution and you think how America has really led this.
America has been the leader in this. We’ve created, you know, hundreds of thousands of jobs, billions of dollars of profit, and in our zealousness to grab up every information, and in our zealousness to ignore basically the Constitution, we’re grabbing up so much stuff, we’re scaring people to death. There’s already been billions of dollars lost to American companies because of this. Because Europeans, Asians, they don’t want our stuff anymore. They don’t want things with our hardware. They don’t want to deal with our services because they’re fearful that the U.S. Government is looking at all their transactions.
And the government is pretty clueless over this. Recently one of the members of President Obama’s administration — in fact, several members of them — and they’re complaining about encryption. We’re going to have to have some laws to prevent these companies from encrypting things. It’s like, don’t you get it? Don’t you get why companies — the encryption is a response to government.
The encryption is a response to a government that’s gone and run amok, basically collecting our information. Collecting all of our information and so if you’re an American Internet company, if you are an American search engine, an American e-mail company, what do you think you’re saying? You’re saying, the only way I’m getting Europeans back, the only way I’m getting Asians back is to say that I’m going to protect them from my government.
Isn’t that a sad state of affairs? People say, well, how will you get terrorists if everything is encrypted? Edward Snowden was use not an encrypted email server and the company housing him, particularly — specifically the genre of their business. Many of them were legitimate, business, personal reasons.
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