Did Letting Section 215 Expire Completely Change USA Freedom Without Anyone Noticing?

from the what-did-we-do-now? dept

Fri, Jun 5th 2015 10:36am — Mike Masnick

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:

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:

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.

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.

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.

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.

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Filed Under: confusion, expiration, patriot act, sunset, surveillance, usa freedom act

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Anonymous Coward, 5 Jun 2015 @ 10:53am

Secret Courts will Solve this
A Secret Court will rule the law now says whatever the NSA wants it to say and that no one has standing to challenge the ruling. The NSA will refer to those sections whenever they need to justify something, but it will always be redacted in all court filings and public documents. All judges will be referred to the secret rulings which they will not be allowed to review.

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.
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Anonymous Coward, 5 Jun 2015 @ 11:00am

Re: Secret Courts will Solve this
As soon as I posted the above, Techdirt went down for a few moments. Seems like it might be the start of a good spy movie.

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.
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SteveMB (profile), 5 Jun 2015 @ 11:01am

There's currently a Supreme Court case (King v. Burwell) that hinges on precisely the issue of whether a technical flaw in the legal language invalidates what the legislature clearly intended to pass. It's a lose-lose for the right wing (either their last-ditch Hail Mary to get rid of Obamacare fails, or the Patriot Act sunset provisions really did expire without being replaced with the "USA Freedom" versions).
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The Infamous Joe (profile), 5 Jun 2015 @ 11:02am

Re: 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.

They'd probably say "Stop! In the name of love!"
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MondoGordo (profile), 5 Jun 2015 @ 11:03am

Classic!
To quote Sir Walter Scott

"Oh what a tangled web we weave, when first we practice to deceive."
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Beware the colon, 5 Jun 2015 @ 11:15am

A colon all by itself preceded by an empty clause. Now that is good writing.
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ltlw0lf (profile), 5 Jun 2015 @ 11:19am

Re: Re: Secret Courts will Solve this
As soon as I posted the above, Techdirt went down for a few moments. Seems like it might be the start of a good spy movie.

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.
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Anonymous Coward, 5 Jun 2015 @ 11:20am

Remember: ed-style diffs are evil
Always use unified diffs. The problem with ed-style diffs is that they are easy to apply when the context is completely wrong. The proper solution is for Congress to specify in the modifying language the base upon which the modification is to be made, and to automatically abort a bill which either lacks the necessary context or for which the context is bogus.
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Anonymous Coward, 5 Jun 2015 @ 11:25am

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.

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!
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Anonymous Coward, 5 Jun 2015 @ 11:25am

Re:
If SCOTUS strikes down the Federal subsidies a smart Presidential candidate would use the chance to argue for single payer.../flamewaron
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SirWired (profile), 5 Jun 2015 @ 11:30am

Did the expiration result in a reversion?
Unless the latest revisions/extensions to the Patriot Act explicitly stated that the expiration would result in a reversion to the pre-Patriot USC (vs. the expired provisions just being no longer effective), I don't think any court is going to read the law like that, especially since congressional intent in this case could not be any more clear.
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Anonymous Coward, 5 Jun 2015 @ 11:41am

Wait, you're saying there's sections of our surveillance laws that aren't a complete mess?
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Anonymous Anonymous Coward, 5 Jun 2015 @ 11:41am

Re:

"(B) ;"

Um, er, that is a semicolon dear sir/madam.
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Daniel (profile), 5 Jun 2015 @ 11:53am

Re: Remember: ed-style diffs are evil
Same thought popped in my head: sounds like a merge error
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Nastybutler77 (profile), 5 Jun 2015 @ 11:56am

Won't this get fixed in Conference Committee?
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Mike Masnick (profile), 5 Jun 2015 @ 11:59am

Re: Did the expiration result in a reversion?
Unless the latest revisions/extensions to the Patriot Act explicitly stated that the expiration would result in a reversion to the pre-Patriot USC (vs. the expired provisions just being no longer effective), I don't think any court is going to read the law like that, especially since congressional intent in this case could not be any more clear.

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
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Anonymous Coward, 5 Jun 2015 @ 12:03pm

As a reform bill, USA Freedom was good. But by the time it was approved, the laws had expired and it was no longer a reform bill, but a new law. The kinds of things it authorizes would never be a good idea without proper debate, which it didn't get. (All the grandstanding by Rand Paul, Ron Wyden, etc was done in an otherwise empty room)

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.
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Derek Kerton (profile), 5 Jun 2015 @ 12:12pm

Hmmm. How Will The Intelligence Community Interpret the Ambiguity?
Hmmm. I wonder if the Intelligence agencies will try to find a way to use the confusion to interpret a justification to INCREASE the surveillance.

Nah. Never happen. They couldn't be that cynical, right?
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Anonymous Coward, 5 Jun 2015 @ 12:23pm

It's bizzarely trendy how you keep calling this reform- with no explaination as to how it does anything which amounts to meaningful reform.
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GMacGuffin (profile), 5 Jun 2015 @ 12:43pm

I can only think of the poor congressional staffer not long out of law school but quickly jading who tried to point this out to his/her boss and was brutally rebuffed for *over-thinking it*
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MarcAnthony (profile), 5 Jun 2015 @ 1:36pm

Pragmatism vs. optimism
I think it’s bizarre to not hate on USA FREEDOM, but I guess some people are silver lining types and others aren’t. I haven't found much of substance in the changes, which further entrench bad practices and allow for six more months of total, illegal seizure, for "transition." Congress, having committed to a course of action, probably considers itself done with surveillance issues for a while, possibly until 2019. The sloppy writings of the legislature are less concerning than are secret courts with their ongoing mockery of representation. The appointment of advocates—made from within the star chamber—only apply to "novel" or "significant" changes, whatever that may be and whomever controls those definitions.
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John Fenderson (profile), 5 Jun 2015 @ 2:23pm

Re:
"As a reform bill, USA Freedom was good."

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".
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Anonymous Coward, 5 Jun 2015 @ 5:19pm

Re: Re:
I'll second that... Given it discounts the bulk surveillance of the known telephone meta data in that it must now be held by the telephone companies, what other reforms are really there on programs that we know or don't know about? Hell, even Senator Wyden says he doesn't know what the anagrams do in the background and has to play 20 questions. When oversight isn't allowed to oversee, we obviously have a condition of military dictatorship. And that still doesn't address other powers now known like NSL letters and the like which could as easily retrieve private information without a warrant.
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Anonymous Coward, 5 Jun 2015 @ 8:34pm

Here I cite
According to 50 USC § 1861(c)(1)(B) ";". So there!
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Mike Masnick (profile), 5 Jun 2015 @ 9:22pm

Re:
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.

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.
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Mike Masnick (profile), 5 Jun 2015 @ 9:25pm

Re:
It's bizzarely trendy how you keep calling this reform- with no explaination as to how it does anything which amounts to meaningful reform.

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.
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Mike Masnick (profile), 5 Jun 2015 @ 9:26pm

Re: Pragmatism vs. optimism
I think it’s bizarre to not hate on USA FREEDOM, but I guess some people are silver lining types and others aren’t. I haven't found much of substance in the changes

Again, I recommend Julian Sanchez's writeup:

http://justsecurity.org/23363/irrelevant-sunset-and-next/
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Barbara Duck, 7 Jun 2015 @ 8:17am

Re: King V Burwell...Machines run the ACA
On this Supreme Court issue, it's a matter of technology if they reverse the ruling, anyone thought about the data work needed and all quants to model new policies? That's the real deal and in the meantime, people get denied access...we live in the world under Attack of the Killer Algorithms and mere legal text can kill us when algos execute what is determined to be the correct way to code and deny or allow access.

http://ducknetweb.blogspot.com/2015/02/why-do-we-discuss-supreme-court-ruling.html
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nasch (profile), 7 Jun 2015 @ 6:50pm

Re:
Won't this get fixed in Conference Committee?

The bill has already passed both houses, so too late for that.
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nasch (profile), 7 Jun 2015 @ 7:20pm

Re: Re:
We have explained how it is reform, but if you want too good explanations, take a look at Julian Sanchez's explanation:

Well they're good, but I'm not sure I'd say they're too good.
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John Fenderson (profile), 8 Jun 2015 @ 10:44am

Re: Re: Re:
"Given it discounts the bulk surveillance of the known telephone meta data in that it must now be held by the telephone companies"

Which, in my opinion, is actively worse than the status quo.
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nasch (profile), 8 Jun 2015 @ 10:54am

Re: Re: Re: Re:
Which, in my opinion, is actively worse than the status quo.

The phone companies are holding this information anyway, how can this make it worse?
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M. Alan Thomas II (profile), 8 Jun 2015 @ 11:43pm

If it comes before a court, the canons of statutory interpretation are quite clear on avoiding absurd results. While we might argue that they don't always observe this canon—although the documentarian in me would argue that a fish is a document when considered as evidence*—there's no real alternative here. We all know what they meant and there's no real alternative.

*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.
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nasch (profile), 9 Jun 2015 @ 7:18am

Re:
We all know what they meant and there's no real alternative.

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.
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