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May 17. 2014 2:36AM

Another View -- Chuck Douglas: The unconstitutional surveillance state is here now

ONE YEAR AGO, Americans would not be discussing the issue of NSA surveillance because none of us even knew about the massive phone metadata collection programs by our government. In fact, in April of last year U.S. Sen. Ron Wyden asked Intelligence Director James Clapper at a hearing if the government had been collecting metadata on all domestic phone calls. Clapper, under oath, denied it. The scope of secret government snooping programs came to light only because of the disclosures by Edward Snowden in June of last year.

When George Orwell wrote 1984, the all-seeing state, or "Big Brother," was represented by a two-way television set installed in each home. In our own modern world, the all-seeing one lives in every location - tracking cell phones we willingly carry with us day and night.

A surveillance society is taking root. Video cameras peer constantly from lamp poles and storefronts. Satellites and drones float through the skies. Smartphones relay a barrage of information about their owners to sentinel towers across the land. License-plate cameras and fast-pass lanes track the movements of our cars.

Under a program code-named PRISM, the National Security Agency reached out to nine internet companies, including Google and Yahoo, to covertly gain access to their data, from e-mail to online searches. By 2011, the military agency's database was pulling in 1.8 billion phone records a day in addition to listening to German Chancellor Angela Merkel's cell phone. Apparently we are all suspects.

An indication of how bad the situation has become is that the National Rifle Association has joined the ACLU in suing to stop the daily collecting of phone data. In January, the Republican Party's National Committee voted to ask Congress to end the program. The Democrats have been silent.

Historically, the anti-privacy apex was the Soviet Union. Its founder, Vladimir Lenin, said "We recognize nothing private." But our American Bill of Rights specifically tells our government what it cannot do about invading privacy. The fundamental value captured in the Fourth Amendment to the U.S. Constitution is: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.." This security is central to the right of privacy, which Supreme Court Justice Louis Brandeis famously described as "The right to be left alone - the most comprehensive of rights and the right most valued by civilized men."

But how can we be secure in our homes and communications if warrantless government agencies use a secret court on an ex parte basis to gather information? The metadata collection program under section 215 of the Patriot Act does not require a warrant or even probable cause. To justify it, the government says courts have frequently applied a judicially created exception to the Fourth Amendment to assert that records of individuals' phone calls, location, Internet use and more collected by the companies lack constitutional protection when they turn it over to the NSA, a military agency headed by a general. The access is granted by the Foreign Intelligence Surveillance Court (FISA), which hears only from the government in secret sessions.

In most instances, the applicability of the Fourth Amendment turns on whether an individual has a "reasonable expectation of privacy" in his or her call data.

Last year two federal judges that had ruled on the Big Brother collection program split in December. In ACLU v. Clapper in the Southern District of New York, Judge Pauley gave deference to the executive branch. But in Klayman v. Obama, Judge Leon, a Bush appointee on the District Court for D.C., held the metadata program unconstitutional, saying: "It's one thing to say that people expect phone companies to occasionally provide information to law enforcement; it is quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government."

I believe Judge Leon clearly got it right. Trusting any government to always do the right thing is dangerous, and our Founders knew it!

And by the way, who we really are supposed to trust are 5 million people with secret and top-secret clearances, or one out of every 70 Americans. It is time to end this unconstitutional program and restore our reasonable expectation of privacy.

Chuck Douglas is a former member of Congress in the Second District and a former New Hampshire Supreme Court and Superior Court judge.


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