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On The Front Lines

Likening NSA Surveillance to Abusive Colonial-Era General Warrants, Rutherford Institute Asks Appeals Court to Declare Domestic Spying Illegal

NEW YORK, N.Y. — Likening the National Security Agency’s (NSA) domestic spying program to a modern-day incarnation of the abusive colonial-era general warrants and writs of assistance which prompted the Framers of the U.S. Constitution to adopt the Fourth Amendment’s ban on unreasonable searches and seizures, The Rutherford Institute has asked the United States Court of Appeals for the Second Circuit to strike down the government’s surveillance program. In filing an amicus curiae brief in ACLU v. Clapper, Institute attorneys have asked the court to enforce the historic purposes of the Fourth Amendment by reversing a district court ruling that the government’s broad monitoring of citizens’ telephone calls does not constitute an illegal search.

“James Madison, who was one of the primary drafters of our Constitution, once warned that we should take alarm at the first experiment with our liberties,” stated John W. Whitehead, president of The Rutherford Institute and author of A Government of Wolves: The Emerging American Police State. “He also warned that ‘the essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.’ To our detriment, we have failed to heed Madison’s warning. As a result, we now find ourselves operating in a strange paradigm where the government not only views the citizenry as suspects but treats them as suspects, as well. Thus, that the NSA is routinely operating outside of the law and overstepping its legal authority by carrying out surveillance on American citizens is not really much of a surprise. This is what happens when you give the government broad powers and allow government agencies to routinely sidestep the Constitution.”

In the weeks after the September 11, 2001, terrorist attacks, the NSA began a program of collecting telephone call records in bulk. After continuing the program without judicial authorization, in 2006, the government sought and obtained authorization from the FISC, a special court established to consider government applications for surveillance of foreign agents and which conducts its activities largely in secret. The 2006 order, which has been renewed several times since, allows the NSA to collect “telephony metadata,” which includes the telephone numbers placing and receiving the call, the date, time and duration of the call, and other session-identifying information, and applies to every call placed or received within the United States. The government retains this information and has the ability to conduct computer analysis to determine patterns of behavior that can reveal personal information about citizens.

The program remained secret until June 2013 when information leaked by former NSA contractor Edward Snowden was made public. That same month, the American Civil Liberties Union and affiliated entities filed a lawsuit alleging that the program violated statutory restrictions imposed by the Foreign Intelligence Surveillance Act and the Fourth Amendment. In December 2013, a federal district court in New York rejected the legal challenge to the government’s surveillance and upheld the program, ruling that because telephone users “voluntarily” disclose information to telephone companies, the collection of information by the government does not constitute an illegal search. In weighing in on the case, The Rutherford Institute argues that “the bulk metadata collection order is no different from the abusive general warrants colonies suffered under and which were intended to be outlawed with the adoption of the Bill of Rights.” Institute attorneys have asked the court to reverse the lower court decision on the grounds that it runs headlong against the principles and purposes that were the foundation for the adoption of Bill of Rights prohibition on unreasonable searches and seizures.

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