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Commentary & Opinion

Bill Owens: 2nd Circuit Gets It Right

The Decision last week by the 2nd Circuit finding that the interpretation of the Patriot Act by NSA and the FISA Court was without the statutory basis with regard to mega data collection is the right outcome for our fundamental freedoms.

Secret Courts like the FISA Court are always dangerous.  Anytime individuals can act with anonymity creates the opportunity for bad acts.  This is true for the Court, as well as for the intelligence agencies, and although they would argue that that has not happened, history clearly demonstrates that it does.  We can look back at J. Edgar Hoover and his numerous abuses as one glaring example. 

The proposal by Mr. McConnell to vote, what is known in the parlance as a clean bill, simply extending the existing statute warranted scrutiny before the Decision by the 2nd Circuit, and now this proposal should be rejected out of hand.  I voted no for the last Patriot Act extension, for virtually the same reasons upon which the Court relied in reaching its decision.  Unfortunately, the idea of warrantless searches should be repugnant to all American, and it will be most interesting see how the Presidential candidates will line-up on this issue.

One of the important issues raised by the Court, was that the logical extension of the government’s legal arguments would allow access to American’s financial records, medical records and electronic communications, including e-mail and social media information. The Court further commented, that the statutes to which the government points have never been interpreted to authorize anything approaching the breath of the sweeping surveillance at issue here. This raises the question of overreaching and inappropriate use.  The government relied on a secret court without adversarial representation to invade the privacy of Americans, which is one of our fundamental rights under the Constitution.

The House overwhelming passed on Wednesday May 13, 2015 the latest version of a bill known as the USA Freedom Act (“Freedom Act”), which would codify termination of NSA’s collection and storage of phone records, but allow the agency to request records held by telephone companies under a Court Order in terrorism investigations.  FISA is still very questionable, as is the very authority of that Court, and I fully support Representative Adam Shifts call for this Decision to be a catalyst for an end to bulk data collection, and the beginning of serious reform. There are significant changes found in the Freedom Act, Section 201 regarding the prohibition on bulk collection, and equally important, limitations on the use of unlawfully obtained information found in Section 301. The provisions of Sections 401 include the appointment of five individuals to serve as amicus parties to provide positions adverse to the Government, as all other Courts in the U.S. function, with specific direction to include members of privacy and Civil Liberties groups, and most importantly to include among those individual persons with technical expertise, so that the Court has non-governmental experts to explain the nature of the technology and whether or not there are less intrusive means of securing the information.  There is no indication that the Judges of this Court have any background or significant understanding of the nuances of technology, and certainly the government is not known to share nuances which are unfavorable to its position.

These issues present difficult choices nonetheless some balance must be achieved otherwise we may be defending less freedom than we deserve.  The Freedom Act is a step in the right direction.

Former congressman Bill Owens represented New York's North Country from 2009 until retiring from the House in 2015. The Democrat is now a strategic advisor in the Washington Office of McKenna, Long and Aldridge, and a partner in the Plattsburgh firm of Stafford, Owens, Piller, Murnane, Kelleher and Trombly.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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