Let gridlock bury mass surveillance, preserve U.S. right to privacy

John Shinal | Special for USA TODAY

SAN FRANCISCO -- Can government gridlock save our constitutional right to privacy?

To believe so is to trust the framers of that historic document, who foresaw the possibility that it might be hard for politicians, judges and Presidents to do right by the Constitution and its very important Amendments every now and then. Can government gridlock save our constitutional right to privacy?

Thomas Jefferson, George Washington, Benjamin Franklin, the Adams boys of Boston and the rest of the document's framers built in a system that made it hard at times for the three branches of government to come to any agreement at all – even about an important issue like the Constitutional right to privacy.

The House of Representatives, controlled by Republicans and led by Rand Paul on this issue, is insisting on reforming the government's mass collection of U.S. phone records.

The U.S. Second Court of Appeals has already ruled that Section 215 of the Patriot Act, up for renewal at midnight this Sunday, does not justify mass collection of U.S. phone records without a warrant.

In other words, the government's formerly secretive program, which Edward Snowden fully outed by leaking documents to the press, was judged to be illegal by a federal appeals court.

The court deferred on whether the program was also unconstitutional, which would have kicked the issue up to the Supreme Court.

Instead, it kicked the can back to Congress.

That's where Sen. Mitch McConnell, the leader of that august body and also a Republican, is insisting that the Patriot Act be renewed, as is.

That would mean more mass collection of citizens' data.

President Obama has put forth a compromise, which would turn the stored database of dates, times and duration of phone calls over to private telecommunication companies.

In other words, to privatize spying.

But few-to-zero Republicans in Congress listen to the Democrat now in the White House, which is why the U.S. is now at gridlock on the issue.

Could this be precisely what the Founding Fathers had in mind?

If the U.S. government takes no action between now and the end of the weekend, a totalitarian interpretation of a knee-jerk law passed amid the fear of 9/11 that's set to expire will pass into American history.

For the sake of Constitutional protection all Americans enjoy from bad laws, I say good riddance.

Scaremongers from the executive branch – usually old, white guys wearing small glasses – will be on TV this weekend, doing their best to tout the benefits of the Mother of All Databases.

These bureaucrats, who draw their salaries from the American Treasury, are stoking a climate of fear because their jobs depend on finding all enemies, real and suspected.

It was bad news for them then when a Justice Department investigation concluded in May, unable to document any instances where the spying helped prevent an attack.

While members of the security state try to convince the American people that they can't possibly live without this trampling of privacy, civilians in the U.S. have a better chance of winning their state lottery than they have of being killed by a terrorist.

The United States is a big, strong country but still pretty inept at totalitarianism, thank goodness.

The appeals court called the idea that Section 215 justified the size and scope of the current NSA data collection program an "unprecedented" assumption about the privacy rights of Americans.

So I will ask this weekend that my representatives in Washington, namely Rep. Nancy Pelosi and Sens. Barbara Boxer and Dianne Feinstein, Democrats all, to please let the Constitution do its job.

Let gridlock work for America.

Let the Foreign Intelligence Surveillance Court go back to its important job of tracking foreign agents rather than rubber-stamping warrantless requests for mass data collection on U.S. citizens.

Let the durable U.S. Constitution, if not the current members of the federal government, erase a now-illegal, potentially-unconstitutional and draconian government process at midnight on Sunday.

John Shinal has covered tech and financial markets for more than 15 years at Bloomberg, BusinessWeek,The San Francisco Chronicle, Dow Jones MarketWatch, Wall Street Journal Digital Network and others. Follow him on Twitter: @johnshinal.