Today, FreedomWorks president Matt Kibbe joined Ken Cuccinelli and Senator Rand Paul in filing an historic class action lawsuit in defense of the Fourth Amendment. The suit's targets include high ranking officials in the National Security Agency (NSA) and the Department of Defense who have been instrumental in overseeing the agency’s collection of massive amounts of telephone data known as the Mass Associational Tracking Program (MATP).

Speaking at a press conference, Mr. Cuccinelli said that the object of the suit is an injunction to prevent further collection of telephone data, and the removal of existing records from the NSA’s databases.

This suit is an important shot across the bow not just for those of us in the freedom movement, but also for anyone who cares about their privacy and has used a phone since 1996, when the MATP began. The Fourth Amendment guarantees the rights of all Americans to be secure in their persons and property, and not to be subjected to search or seizure without reasonable suspicion of having committed a crime. Starting with the distressing revelations by now-fugitive Edward Snowden last year, we now know that there are those in the government who do not consider these important protections to be worth the paper they are printed on.

For too long Americans have been willing to let their civil liberties slip away in the name of national security. Yet despite repeated requests, the NSA has been unable to supply any evidence that these telephone records have been effective in detecting or preventing terrorist attacks.

While others have attempted to challenge the NSA before, it has taken until now for a large group of citizens to band together to demand a fair hearing in court with legal representation arguing for the rights of the American people. So far, the class action suit claims to represent more than 386,000 people whose information has been collected and retained by the government without an appropriate warrant. The actual number of those affected, of course, is closer to 326 million, the number of cell phone subscriber connections in the United States.

In an era where our government is continually overstepping its bounds and exceeding its authority, it is crucial that we have principled individuals willing to stand up to big government bullies and fight to preserve the rights explicitly enshrined in the Constitution. The ultimate outcome of the case will have far reaching ramifications on how the Constitution is interpreted in the future, and even if it takes years for the court to reach a decision, the result will have an impact on our entire future as a nation.

As the holiday travel season draws to a close, many people are getting their second yearly hand of love from the Transportation Security Administration. A better solution to air travel security is to privatize the TSA. Let each airline and airport decide, and fund, its own security.

While it's nice to think about a world in which we fly without security hassles, that world will never exist. Airlines, faced with air disasters in the news, would never put their customers intentionally in a situation where safety is laxed. If the TSA disappeared tomorrow, a substitute would quickly emerge, as airlines scrambled to perform due diligence to protect their crews, passengers, and facilities.

The TSA does more than just check IDs and grope people at random, however. According to the TSA site, they take a layered approach:

Some of these operations are best carried out by law enforcement personnel, but the TSA's best-known 'stop-and-frisk activity' is not one of them. Maybe all of those other functions could be privatized or eliminated, but for now they could be moved to other agencies -- federal, state, and local.

For instance, the No-Fly List can be maintained by the federal authorities, but could be queried by individual airlines. Or it could be scrapped entirely as a nonsensical item of security theater, since it's just a list of names -- and someone dangerous enough to commit a violent crime in the air will not balk at using a fake ID to do it.

VIPR

The TSA isn't limited just to air travel.  Visible Intermodal Prevention and Response teams can go anywhere:

TSA VIPR teams can be deployed at random locations and times in cooperation with local authorities to deter and defeat terrorist activity; or teams may be deployed to provide additional law enforcement or security presence at transportation venues during specific alert periods or in support of special events.  TSA routinely conducts thousands of VIPR operations each year in transportation systems nationwide.  

It isn't clear why the TSA is involved in such law enforcement activity, when we have other agencies for that.

Airlines and airline flight personnel have the most to lose in securing their operations. They also have an interest in balancing customer safety with customer convenience. The dynamic between a customer wanting to fly and an airline security guard wanting to protect the other passengers would be somewhat different, and more human, than we now experience with TSA operatives.

Some TSA agents understand the offensive nature of their work, and perform their duties apologetically. Others revel in the position of petty power in which their position places them. That's human nature. If they were employed by a private entity, the threat of losing their jobs for mistreating passengers would keep most of them in line.  Customers who want the security theater of a TSA-style stop-and-frisk when they fly should be able to choose an airline offering that. Those wanting the convenience of walking off the street and onto the plane with only passive inspection should have that choice as wll, knowing that doing so would increase their personal risk.  

Especially in our litigious society, no airline would simply fly planes and hope for the best. Instead, they would use their business creativity to take the precautions necessary to protect their investment and provide a better service. 

They might still be monitoring your phone calls to mom and bartering for gold with your World of Warcraft character, but for the foreseeable future, the NSA will have to shut down its metadata collection program...at least according to US District Court Judge Richard Leon, who today approved an injunction against the operation pending the outcome of litigation.

A federal judge ruled Monday that the National Security Agency program which collects information on nearly all telephone calls made to, from or within the United States is likely to be unconstitutional.

U.S. District Court Judge Richard Leon found that the program appears to run afoul of the Fourth Amendment prohibition on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the so-called metadata had helped to head off terrorist attacks.

Today's action was only an injunction and not a finding of fact by the court, and is limited, applying only to a select few Verizon accounts belonging to the Plaintiff, Larry Klayman, and one of his clients. Due to its limited scope, it is highly unlikely we can call this a fatal blow to government surveillance, but it is a start.

An injunction ends a program temporarily (at least, in this case, for the Plaintiff), because the judge believes should the program be allowed to continue, it would result in ongoing and future harm to the Plaintiff. In this case, the longer the NSA spies on Mr. Klayman, the more potential claim he has to a Fourth Amendment violation.

And the judge wasn't subtle when it came to explaining why he was issuing the NSA a temporary hold on the metadata program:

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” Leon added."

Not exactly giving the NSA the benefit of the doubt, really. Leon, who is a George W. Bush appointee to the bench, also was very specific in his criticism, expressing his "significant doubts" that the NSA's decision to build complex records on your cell phone habits connected at all to preventing terror. 

Of course, you need not worry that the NSA is now ignoring you, completely detached from your life and strugging to understand its place in polite society. Naaaaahhhhh. Aside from the two people involved in the litigation, the NSA is still happily logging your cell phone calls and gazingly lovingly at your Instagram photos, agreeing with your Facebook updates and putting together a comprehensive Christmas list from your Pinterest, which they'll happily pass on to Santa if you only ask. And even those two guys might not be so lucky. The court immediately stayed the injunction, allowing the NSA to continue to tap the Plaintiffs while the NSA prepares an appeal.

Even when we're lucky, we're unlucky, I guess. Take heart, at least, that this is the first major blow to an NSA program in years, and it's probably the first one you've known about in decades, and that's a step forward in any case.

Last week, the chairman of the Senate Intelligence Committee, Senator Dianne Feinstein, announced that President Obama didn’t know the United States was collecting communications data of allied leaders. In other words, Sen. Feinstein is suggesting that our intelligence agencies do not clue in the President to what sort of intelligence the United States government is gathering. Let that one sink in for a sec. 

Sen. Feinstein is claiming that the President of the United States was unaware of his executive branch intelligence agencies spying on fellow heads of state. That’s akin to openly acknowledging that the President’s subordinates act without his approval, rendering the Obama Presidency either completely ignorant or hopelessly impotent.  

Entertaining the idea that the man in charge of the United States’ security and relationships with our allied nations would be unaware that his subordinates are spying on allied world leaders can be nothing but a lie concocted to protect the President from the political fallout of his administration’s abusive overreach. 

Worse is that this not some one-time freak incident where supposedly a rogue administrator acted without President Obama’s authorization, but rather this incident is the continuation of a disturbing trend of “Oops, ughhh…I didn’t know about that” moments throughout his presidency.  

All presidents’ administrations tend to leave their bosses some room for plausible deniability, but either Barrack Obama is the most out-of-the-loop Chief Executive in our history, or he needs to start taking some notes during all of those meetings he’s pictured in:

Let’s review his more prominent “I dunno” moments from the past few years:

• Apparently no one thought to tell the President that healthcare.gov had failed its preliminary testing before its launch. If they had, he might not have said: "You can go to the website. You can check it out… You can sign up next week. You can sign up next month…See for yourself what the prices are. See for yourself what the choices are.”- President Obama, 9/26/13.  
• The IRS was apparently targeting Tea-Party groups all by itself because the President didn't know about a report detailing the malicious targeting of liberty-minded groups. If that report hadn’t been “leaked” would anyone have told him? 
• The White House also had no idea that the DOJ seized the phone records of Associated Press reporters. I guess Eric Holder was just making sure the mainstream media keep saying nice things about his boss. 
• Jay Carney claimed that the President found out about Operation Fast and Furious through the media. Presumably this was the face he made when he saw the news reports: 

• President Obama wasn’t informed of an FBI investigation into Gen. David Petraeus’ email account until just two days before Election Day 2012, whereas Eric Holder knew months beforehand (he seems to know everything the President doesn’t). Since the President apparently isn’t keeping track of the DOJ, the IRS, or the NSA, it would actually make sense that he wouldn’t know what the FBI is up to. 
• And of course, the President seemed surprised to find that after implementing the “Stimulus,” there were no “shovel-ready jobs.” I personally blame that one on his ignorance of basic economics. He should take the time to sit through FreedomWorks University’s econ 101 lectures.

Perhaps the President should spent more time with his cabinet and less time on the golf course, just to avoid appearing so dazzlingly ignorant of his administration’s operations. Then again, all the evidence indicates that meetings the President does attend tend to go like this: 

Hey, I just had a thought. If the President is really left in the dark so often, maybe he actually believed people could keep their health insurance plans under Obamacare? It just might be possible that no one in his administration had the heart to tell him the truth, just like they lied to the American people. Right?

Nope.

On today’s edition of the FreedomCast, CJ Ciaramella joins me to discuss the latest revelations in the IRS targeting scandal, whether the White House received confidential taxpayer information against the law and if there’s any chance the DoJ will act to protect your privacy. 

Related Links:

Darrell Issa: IRS Officials Sent Private Data Over Personal Email Accounts

IRS Officials Counseled White House on Contraception Mandate

White House and IRS Pass Around Private Taxpayer Info

Subscribe to The FreedomCast on iTunes here.

Follow FreedomWorks on twitter and on Faceboook.

Follow today's guest @CJCiaramella on twitter. 

Our podcast is fabulously produced by @BradWJackson.

In every one of these situations: the push to attack Syria, the NSA spying on citizens, funding and implementation of Obamacare; proponents want to allow the government to do something it should not do, but claim we will be able to stop it if it goes any further. That thinking is backwards. The way to stop the NSA from gathering citizens' data, to keep the attack on Syria from escalating, and to stop Obamacare, is not to allow them to get started (funded) in the first place.  

Before the Obama Administration began discussions on a possible attack on Syria, there was talk of impeaching the President over his selective enforcement and alteration of Obamacare. Such talk was going nowhere, of course, because while the House of Representatives can impeach a President, that is only the equivalent of charging him with a crime. The Senate must convict with a two-thirds vote before he can be removed from office.

Since the Senate has been two-thirds controlled by one party for only six two-year terms in a century and a half, that almost always means that impeachment and conviction can only occur when the President's allies in Congress turn on him.  Not only must they shun allegiance to their leader, they must also be convinced that removing him from office serves both the interests of the nation and their own narrow political fortunes. That has never happened. 

Instead of pushing for an impeachment, which is a virtual impossibility, many, rightly so are focusing on the devastating effects of ObamaCare and how to defund it.

Over a million people have signed the online petition to cut funding from Obamacare. They know that the way to defeat this law is first not to let it go into effect. Rather than simply delaying portions of it, defunding stops the whole thing in its tracks, before the train wrecks. Delaying portions of the law and assuming the system it creates will fall apart, runs counter to the history of government programs.

When it comes to the intrusion on our civil liberties, what we know of the NSA data collection is shrowded in secrecy and talk of national security. But in general, the agency has obtained warrants through the FISA court to collect a record of almost every phone call, text message, and email sent or received in the United States. They gather this information, which includes at least phone numbers, time, and duration of call, as well as similar information about email, and store it on their servers. 

When an NSA employee wants to access some part of that data, they can often bypass internal procedures they are supposed to follow to gain access to it. Having given up our Fourth Amendment protection against having our data collected by the government, we now find that the promised internal controls don't work.

Much like ObamaCare, that had to be passed in order to "find out what is in it", and again like the revelations coming out about the NSA - we shouldn't go to war to find out what we're being dragged into.

We can be fairly sure that some kind of chemical weapons attack was carried out on civilians in the suburbs of Damascus, Syria. We don't know who did it. We do know that the Syrian rebels were housed in civilian areas, using civilians as human shields, a war crime. While that doesn't excuse the use of chemical weapons, it does mean they lose any claim to moral superiority over the Assad regime.

The Obama administration contends it does not to want to get rid of President Assad. But while the public rhetoric calls just for a slap on the wrist, the language of the suggested war resolution is virtually open-ended:

(a) AUTHORIZATION-The President is authorized, subject to subsection (b), to use the Armed Forces of the United States as he determines to be necessary and appropriate in a limited and tailored manner against legitimate military targets in Syria, only to: (1) respond to the use of weapons of mass destruction by the Syrian government in the conflict in Syria; (2) deter Syria’s use of such weapons in order to protect the national security interests of the United States and to protect our allies and partners against the use of such weapons; and (3) degrade Syria’s capacity to use such weapons in the future.

None of the limiting language means anything, especially with a President who doesn't believe he needs that authorization in the first place. 

Now comes Senator McCain, an advocate of intervening in the Syrian civil war, to say:

“The Russians are all in, the Iranians are all in, and it’s an unfair fight. And no one wants American boots on the ground,” the senator explained. “Nor will there be American boots on the ground because there will be a impeachment of the President if they did that. But I understand the incredible cynicism.”

Impeachment is an iffy business, and Senator McCain knows it. It would especially be true if the war in Syria were to escalate. History shows the President usually gets a short-term bump in approval, as Americans, whether they favored a war or not, rally behind the Commander in Chief. 

The time to stop an expansion of government power is before it occurs. Afterward, not only does the government have more power to secure its authority, but the tendency is to accept the status quo.

Congress should pass no continuing budget resolution that funds any part of Obamacare. The NSA should stop collecting data on Americans who are not criminal suspects. Congress should not give President Obama the authority he seeks to attack Syria.  If he ignores the Constitution and does so anyway, they at least will not have given him their blessing. 

Nothing is safe from the scrutiny of the surveillance state, not even your Facebook likes. Especially if you're under investigation by any national government. Facebook released a report explaining which countries made bulk user requests, how many requests were made, how many individual user requests each country made and their success rate in obtaining information. Seventy-four countries requested user data. The report is for the first six months of 2013, updated through the end of June. 

Facebook explained:

As we have made clear in recent weeks, we have stringent processes in place to handle all government data requests. We believe this process protects the data of the people who use our service, and requires governments to meet a very high legal bar with each individual request in order to receive any information about any of our users. We scrutinize each request for legal sufficiency under our terms and the strict letter of the law, and require a detailed description of the legal and factual bases for each request. We fight many of these requests, pushing back when we find legal deficiencies and narrowing the scope of overly broad or vague requests. When we are required to comply with a particular request, we frequently share only basic user information, such as name.

The list of governments that requested the most information successfully is an interesting list. Not surprsingly, the U.S. tops this list with an alarming number of requests:

1. United States (11,000-12,000 requests, 79% success)
2. India (3,245 requests, 50% success)
3. United Kingdom (1,975 requests, 68%success)
4. Germany (1,886 requests, 37% success)
5. Italy (1,705 requests, 53% success)
6. France (1,574 requests, 39% success)
7. Brazil (715 requests, 33% success)
8. Australia (546 requests, 64% success)
9. Spain (479 requests, 51% success)
10. Poland (233 requests, 9% success)

Regarding the large volume of requests from the U.S. government and the fact this particular statistic is listed in ranges, Facebook explained:

We have reported the numbers for all criminal and national security requests to the maximum extent permitted by law. We continue to push the United States government to allow more transparency regarding these requests, including specific numbers and types of national security-related requests. We will publish updated information for the United States as soon as we obtain legal authorization to do so.

Also interesting is that Egypt, embroiled in civil unrest only made 8 requests, none of which were granted while Syria made no requests according to Facebook's report.  

In what seems to be a growing surveillance state, there is some comfort in the growing trend towards large companies like Facebook releasing transparency reports.

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Of all tyrannies, a tyranny exercised for the good of its victims may be the most oppressive.

-C.S. Lewis

News breaks this morning that the NSA has the ability to monitor 75% of the nation's internet traffic at once. They can watch what 75% of Americans are doing at any one time online. Think on that for a moment.

We have already learned that they can monitor your cell phone. They can get access to your individual online browsing history via your internet service provider, and read your emails. Now we learn that they can watch over three-quarters of the nation's internet traffic at the drop of a hat.

This has gone far beyond national security.

On Coffee & Markets yesterday Congressman Bob Goodlatte, Chairman of the House Judiciary Committee, said it is time for more transparency of the NSA's monitoring efforts and called for better oversight of these programs. Both of those suggestions are great first steps to reining in the NSA, but there is more that needs to be done.

"In the name of national security," has become the most overused and hollow phrase in Washington. It seems any activity can be justified "in the name of national security." The TSA is allowed to practically molest your child or harass a frail elderly lady as they pass through airport security, "in the name of national security." That same agency is even moving to large public gatherings so they can perform searches that would otherwise be called assaults "in the name of national security."

A TSA program called VIPR, short for Visible Intermodal Prevention and Response, dispatches squads of federal officers to sporting events, highway weigh stations, train terminals, music festivals and even rodeos as part of the nation's counter-terrorism efforts.

From the New York Times:

“The problem with T.S.A. stopping and searching people in public places outside the airport is that there are no real legal standards, or probable cause,” said Khaliah Barnes, administrative law counsel at the Electronic Privacy Information Center in Washington. “It’s something that is easily abused because the reason that they are conducting the stops is shrouded in secrecy.”

The agency's response to questions about this program is that these searches are "special needs" or "administrative searches," which are apparently exempt from constitutionally protected probable cause, "because they further the government’s need to prevent terrorist attacks." There it is. These new public searches by TSA's VIPR squads are all "in the name of national security."

It seems we are headed to a point where once you leave your home, whether you are going to a football game, catching a train, driving the highway or any number of other public outings you are subject to random and invasive searches "in the name of national security."

The NSA's electronic invasion is no better. Every technology enabled activity you perform in a day, calling a family member, reading your email, browsing the web, all of that may be monitored by a 20 or 30-something year old bureaucrat in Washington. You don't even need to leave your house for this invasion of privacy.

Although the administration is supposed to get approval for the invasive monitoring of their citizens, the FISA court, or Foreign Intelligence Surveillance Court, where they obtain these warrants is nothing more than a rubber stamp for their requests. Even NPR thinks there may be something wrong with this secret court.

The criticism of the Foreign Intelligence Surveillance Court is simple: that it's a rubber stamp, and that the government always gets what it wants. And here's a number that seem to support that: 1,856. That's the number of applications presented to the court by the government last year. And it's also the number that the court approved: 100 percent success.

We must develop a better means of requesting these searches, one that takes into account the privacy rights of American citizens. This court was created to keep the government from abusing surveillance powers, but if that body is no longer willing to stand up to those they are supposed to hold accountable, it is time to look at new options.

We could also go into the excessive costs related to harassing and monitoring you. The billions of dollars from your pockets used to fund the data centers, the training programs, the salaries, the contractors, the next-gen technology, the patrol teams, the drones and more all "in the name of national security." 

What is the limit of Washington's intrusion?

It is time for Washington's security Leviathan to be reined in. It is time to provide a voice for the little guy in this process. It is time for the nation to understand that sacrificing nearly every aspect of your privacy, both inside and outside your own home, is unacceptable.