Did Letting Section 215 Expire Completely Change USA Freedom Without Anyone Noticing?
from the what-did-we-do-now? dept
It's become bizarrely trendy among some (especially on Reddit) to flat out hate on the USA Freedom Act, ignoring that it has some very useful reforms in it. It's absolutely true that they are small reforms that don't go far enough and don't touch on many other, more worrisome, programs, but there was plenty of useful stuff in there as well, in taking a first small step towards reform. However, in the comments to our post last Sunday about the three surveillance provisions briefly sunsetting until USA Freedom passed a few days later, someone asked if the USA Freedom Act still worked the same even after Section 215 expiring, since it modified Section 215. I really had no idea.Over at Just Security, they're now discussing that issue, pointing out that things might be a bit messier than everyone expected. That's because, yes, USA Freedom modifies the text of existing law, but the existing law changed at midnight Sunday night, and the "changed" text might no longer make any sense:
And that's not all. As the writeup by Megan Graham notes, this is true of many other sections as well. Basically, USA Freedom was designed to work relative to parts of existing law, but that existing law changed, and now everything's broken and the law, in places, makes no sense at all.Practically speaking, things aren’t so simple. For example, the US Code section that up until Monday morning had contained the business records provision was 50 USC § 1861. As of 12:00am on June 1, however, any parts of the US Code that had expired reverted back to how they read on October 25, 2001, per the terms of the 2005 and subsequent reauthorizations. But rather than containing the business records provision, the old version of Section 1861 contained definitions for terms (and Section 1862 was the FISA business records provision). This raises the second question of how the US Code will read now that the unaltered version of the USA Freedom Act is law.
The answer here is much less clear and is where the US Code is about to get a little weird. Section 601(b) of the USA Freedom Act, for example, amends Section 502(c) of FISA. But Congress' instructions for modifying that part of the US Code creates a number of blank spots in the text and several nonsequiturs. For example, Section 601(b) says that the word "and" should be struck in subparagraph (A), to insert a semicolon in subparagraph (B), and to add subparagraphs (C) through (E), but neither (A) nor (B) existed in the pre-Patriot Act text. As a result, here’s how it now reads:
Section 1862(c)(1)(A) and (B) are blank because they didn’t exist in the pre-Patriot Act version of the law. USA Freedom simply willed them into existence by calling for edits to them and by creating subparagraphs (C) through (E), which had to be preceded by something. And the rest of Section 1862(c)(1)? The FISA provision that explains the requirements for a court order after a successful application by the government to collect a company’s business records is now nonsensically melded with reporting requirements.1862. Access to certain business records for foreign intelligence and international terrorism investigations
(c) Ex parte judicial order of approval
(1) Upon application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application satisfies the requirements of this section.
(A)
(B) ;
(C) the total number of applications made for orders approving requests for the production of tangible things under section 501 in which the specific selection term does not specifically identify an individual, account, or personal device;
(D) the total number of orders described in subparagraph (C) either granted, modified, or denied; and
(E) with respect to orders described in subparagraph (D) that have been granted or modified, whether the court established under section 103 has directed additional, particularized minimization procedures beyond those adopted pursuant to section 501(g).(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a) of this section.
As Graham notes, most people are probably assuming that we can now pretend that USA Freedom is meant to amend not the law as it stood on Tuesday when USA Freedom passed, but the law as it stood two days earlier. And that's a reasonable assumption. But it may not be legally binding. And, thus, there's a half-decent chance that someone could actually challenge the law based on how it actually is supposed to be, rather than letting everyone get away with pretending that, before making the USA Freedom Act law, we first put the three surveillance provisions back in place.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: confusion, expiration, patriot act, sunset, surveillance, usa freedom act
Reader Comments
Subscribe: RSS
View by: Time | Thread
Secret Courts will Solve this
The only way any of this will ever make a difference is if the Supremes get pissed enough to grab a big stick an unilaterally strike down the Secret Courts and all their rulings. Then we will have a constitutional crisis, and the only hope of a free society is if the military or someone similar decides to step in and back the Supremes.
[ link to this | view in chronology ]
Re: Secret Courts will Solve this
Anyway, it occurred to me that the NSA doesn't need to involve the Secret Courts. All they have to do is claim they did and since everything is so secret, who could say otherwise? They would probably get away with it for a long, long time.
[ link to this | view in chronology ]
Re: Re: Secret Courts will Solve this
Did you see the same cat, or another cat that looked the same? This is important, because they may have changed something in the matrix.
Hehe, I suspect it was just the normal website backup script.
[ link to this | view in chronology ]
Re: Secret Courts will Solve this
They'd probably say "Stop! In the name of love!"
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: King V Burwell...Machines run the ACA
http://ducknetweb.blogspot.com/2015/02/why-do-we-discuss-supreme-court-ruling.html
[ link to this | view in chronology ]
Classic!
"Oh what a tangled web we weave, when first we practice to deceive."
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Um, er, that is a semicolon dear sir/madam.
[ link to this | view in chronology ]
Remember: ed-style diffs are evil
[ link to this | view in chronology ]
Re: Remember: ed-style diffs are evil
[ link to this | view in chronology ]
Not a Reddit fan, but I do lurk from time to time. They are no more or less bigoted there than they people they rail against.
Anyways... It does not matter what reforms are done, maybe you have not noticed the difficulty involved with a citizen ,whom has been screwed by Law Enforcement doing what-ever-the-fuck-they-want, getting actual redress from their rights being violated. For every article you read where someone did win, there are at least 10 others where they failed or the citizens was drowned out in the crowd.
This administration has made it clear, they will just do exactly whatever the fuck they want regardless of the law, and you will find that neither left or right gives two motherfucking shits about it. The only thing the so called "Freedom Act" is further codify that their fucked version of law is perfectly fine!
[ link to this | view in chronology ]
Re:
You realize we *write* those articles all the time. And I still say USA Freedom was a win.
This administration has made it clear, they will just do exactly whatever the fuck they want regardless of the law, and you will find that neither left or right gives two motherfucking shits about it. The only thing the so called "Freedom Act" is further codify that their fucked version of law is perfectly fine!
No offense, but that's bullshit. The administration has not "done exactly whatever the fuck they want regardless of the law..." They HAVE absolutely *twisted* the law as much as they possibly can, but they always have at least a very, very stretched interpretation for how they're within the law.
The USA Freedom Act, for the most part, was written *with that in mind* and to *limit* the ability of the intelligence community to secretly reinterpret it.
[ link to this | view in chronology ]
Did the expiration result in a reversion?
[ link to this | view in chronology ]
Re: Did the expiration result in a reversion?
Congressional Research Service claims that yes, it reverts to pre-PATRIOT:
http://judiciary.house.gov/_cache/files/b8bc7204-c0eb-49a2-afdf-076f575f3f9a/crs-memo.pd f
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
The bill has already passed both houses, so too late for that.
[ link to this | view in chronology ]
When put in another light, we made the same mistakes as the initial passing of the Patriot Act. Broad reaching executive power granted hurriedly without proper debate.
[ link to this | view in chronology ]
Re:
I think that's far too generous. As a reform bill, USA Freedom is arguably better than nothing. But it's a long way from "good".
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re: Re: Re:
Which, in my opinion, is actively worse than the status quo.
[ link to this | view in chronology ]
Re: Re: Re: Re:
The phone companies are holding this information anyway, how can this make it worse?
[ link to this | view in chronology ]
Hmmm. How Will The Intelligence Community Interpret the Ambiguity?
Nah. Never happen. They couldn't be that cynical, right?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
We have explained how it is reform, but if you want too good explanations, take a look at Julian Sanchez's explanation:
http://motherboard.vice.com/read/dont-just-let-the-sun-go-down-on-patriot-powers
http://j ustsecurity.org/23363/irrelevant-sunset-and-next/
That second one goes into a fair bit of detail as to how it is reform. And it is. Is it enough? No. But it is a step in the right direction, and was negotiated, in part, with some of the strictest anti-surveillance folks I know.
[ link to this | view in chronology ]
Re: Re:
Well they're good, but I'm not sure I'd say they're too good.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Pragmatism vs. optimism
[ link to this | view in chronology ]
Re: Pragmatism vs. optimism
Again, I recommend Julian Sanchez's writeup:
http://justsecurity.org/23363/irrelevant-sunset-and-next/
[ link to this | view in chronology ]
Here I cite
[ link to this | view in chronology ]
*This was an actual case. The usual library school reading about what constitutes a document uses the example of a different animal and, among other situations, a zoo.
[ link to this | view in chronology ]
Re:
I'm not an expert, but it seems extremely problematic that a bill can implicitly extend an otherwise expired law, which I think is what you're saying.
[ link to this | view in chronology ]