At Long Last, NSA Finally Recommends Its Bulk Phone Collection Program Be Put Out Of Its Misery

from the DNR-please dept

Early last month, it appeared the NSA was ready to shut down its bulk phone records collection. The subject of the first Snowden leak was argued to be an essential part of the national security process, but as it underwent significant modifications, the NSA seemed willing to sacrifice a program of dwindling value to save its more intrusive collections.

This perhaps inadvertent revelation came via a podcast, which is just the way things are done these days. Appearing on the Lawfare podcast, national security advisor Luke Murry had this to say about the Section 215 phone records collection:

Mr. Murry brought up the pending expiration of the Freedom Act, but then disclosed that the Trump administration “hasn’t actually been using it for the past six months.”

“I’m actually not certain that the administration will want to start that back up,” Mr. Murry said.

NSA abandonware. That's one for the history books. This comment has now received official backup from the NSA, which has informed its oversight that it's not really interested in continuing this surveillance program.

The National Security Agency (NSA) has formally recommended that the White House drop the phone surveillance program that collects information about millions of US phone calls and text messages. The Wall Street Journal reports that people familiar with the matter say the logistical and legal burdens of maintaining the program outweigh any intelligence benefits it brings.

The program's alterations -- courtesy of the USA Freedom Act -- now require the NSA to provide reasonable, articulable suspicion prior to asking for records from phone companies. The phone companies simply return responsive records, rather than hand over call data on all calls to the agency for it to sort through at its leisure. The NSA claims "logistical and legal" issues make this program not worth continuing. Perhaps it's actually the evidentiary burden that's making this too much of a hassle -- more "legal" than "logistical."

Whatever the case, it's up to Congress to officially dump the program. The NSA may not be currently collecting anything, but its guidance could be ignored by non-national security experts on Capitol Hill who may be less willing to shitcan domestic surveillance programs.

In a recent interview, Senator Richard Burr of North Carolina, the Republican chairman of the Senate Intelligence Committee, said, "If we have technical problems or challenges that NSA has to take into account, that's okay... It's not something we easily shelve."

If the NSA wants to kill the program, it behooves Congress to preside over its funeral. The best eulogy for the mostly-useless program would be codification of its overdue mortal coil offloading.

A group of bipartisan lawmakers on Thursday introduced a bill that would end the National Security Agency's (NSA) mass collection of U.S. phone data.

The bill's introduction by a group of civil libertarian lawmakers comes weeks after a national security aide to House Minority Leader Kevin McCarthy (R-Calif.) revealed that the NSA has shuttered its call-detail records program.

The Ending Mass Collection of Americans’ Phone Records Act would end the program for good, taking away the NSA's authority to restart it. The bill was introduced by privacy hawks Sens. Ron Wyden (D-Ore.) and Rand Paul (R-Ky.) and Reps. Justin Amash (R-Mich.) and Zoe Lofgren (D-Calif.).

It seems like an easy sale. The NSA isn't going to be pushing back on this one. The only opposition will be reps like Burr who seem to think they know national security better than the National Security Agency.

Filed Under: bulk surveillance, mass surveillance, metadata, nsa, phone records, richard burr, section 215, surveillance

Clapper Continues To Pretend He Didn't Lie To Congress About Domestic Surveillance Programs

from the six-years-of-deflection dept

James Clapper is going to take his Section 215 lie to his grave. One day after the first Snowden leak exposed the breadth of the NSA's phone metadata program, Sen. Ron Wyden asked the then-Director of National Intelligence if the agency collected data on Americans. Despite published documents clearly showing otherwise, Clapper went with this answer:

Wyden: Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Clapper: No sir.

Wyden: It does not?

Clapper: Not wittingly. There are cases where they could, inadvertently perhaps, collect—but not wittingly.

Since everyone clearly knew he was lying, Clapper spent the next several days claiming he wasn't. First, he said he meant the NSA wasn't "voyeurestically" reading everyone's emails. Good, but not what Wyden asked. Then he said it was the only response he could give to Wyden's "when did you stop beating your wife" question. Then he claimed he thought Wyden was asking about another collection entirely: the foreign-facing Section 702 program (which does, inadvertently, collect a lot of US person data/communications).

This is the legacy Clapper has secured for himself. He won't be remembered for his IC leadership or his post-IC career talking headmanship. Nope, it will be his super-weak, super-transparent lie, delivered to a US Senator against a backdrop of leaked documents showing the NSA did "wittingly" collect data on hundreds of millions of Americans.

Nearly six years later, Clapper is telling the same story to anyone who asks him about this hearing, ensuring the word "Clapper" and "lie" will remain inseparable. The Section 215 program Clapper was alluding to -- the program exposed in the first Snowden leak -- is back in the news, thanks to an unexpected early retirement.

In an interview with CNN about the surprise Section 215 shutdown, Clapper again pretended he didn't know what program he was being asked about.

“As far as the comment, the allegation about my lying, I didn’t lie, I made a big mistake and I just simply didn’t understand what I was being asked about. I thought of another surveillance program, Section 702 of the Foreign Intelligence Surveillance Act when I was being asked about Section 215 of the Patriot Act at the time, I just didn’t understand that...”

Clapper's repetition of this excuse hasn't made it any more believable. None other than Senator Ron Wyden popped up on Twitter to point out Clapper's lies about his lie.

If you can't see/read the tweet, it says:

James Clapper needs to stop making excuses for lying to the American people about mass surveillance. To be clear: I sent him the question in advance. I asked him to correct the record afterward. He chose to let the lie stand.

That's the face of IC leadership, as portrayed by James Clapper. Clapper managed to exit the public sector unscathed, turning over a limping surveillance ship to his successor while stepping into the private sector with no threat of punishment hanging over his head. He lied to Congress and got away with it. And he's going to spend the rest of his life pretending he didn't.

Filed Under: james clapper, lies, mass surveillance, nsa, ron wyden, section 215

The NSA Appears To Have Shut Down Its Bulk Collection Of Phone Records

from the program-so-valuable-no-one-could-find-a-use-for-it dept

The program considered so "essential" NSA defenders said it couldn't even be slightly modified is apparently no longer in use. During a recent Lawfare podcast, national security advisor Luke Murry dropped a bit of a bombshell. Charlie Savage summarizes Murry's comments:

The National Security Agency has quietly shut down a system that analyzes logs of Americans’ domestic calls and texts, according to a senior Republican congressional aide, halting a program that has touched off disputes about privacy and the rule of law since the Sept. 11 attacks.

[...]

Mr. Murry brought up the pending expiration of the Freedom Act, but then disclosed that the Trump administration “hasn’t actually been using it for the past six months.”

“I’m actually not certain that the administration will want to start that back up,” Mr. Murry said.

Murry is referring to the Section 215 bulk data collection. Exposed by the Snowden leaks, Section 215 was modified by the USA Freedom Act, which went into effect June 2015. The biggest modification was where the records were stored. The NSA could no longer collect all phone records from providers and search through the data at its leisure. Instead, it had to provide telcos with lists of targeted numbers. The data remained in the hands of service providers, with the NSA only having access to suspicion-supported phone records.

The alterations to the Section 215 program resulted in the NSA purging a bunch of records that didn't fit the new parameters. The NSA finally let go of a few of its haystacks, conveniently destroying records integral to multiple lawsuits against the agency. The USA Freedom Act modifications -- combined with the NSA's long history of abusing its collection authorities -- seem to have made it impossible for the NSA to continue utilizing its phone records collection program.

The bulk records collection is now in the hands of telcos, resulting in a slimmed-down dataset the NSA didn't seem particularly enthused to have. Apparently the program is as useless as critics have said it is. The NSA has gone at least six months without asking for data via this authority. This program is due for renewal at the end of this year, but the comments made to Lawfare suggest the NSA may be content to let it expire.

Marcy Wheeler suggests a few underlying motivations for the NSA's abandonment of the Section 215 collection -- and one might be the Supreme Court's extension of Fourth Amendment protections to cell site location info.

[This] suggests that the problem with the records may not be the volume or the content turned over, but some problem created either by the specific language of the law or (more likely) the House Report on it or by the Carpenter decision. Carpenter came out on June 22, so technically after the NSA claims to have started deleting records on May 23. It also may be that the the NSA realized something was non-compliant with its collection just as it was submitting the 6th set of 180-day applications, and didn’t want to admit to the FISC that it had been breaking the law (which is precisely what happened in 2011 when the government deleted all its PRTT records).

Wheeler says the NSA may have been asking for location data as well to better track the phones it targeted. The IC may have seen the writing on the third-party wall following the Supreme Court's oral arguments in November 2017. This may account for its plug-pulling a month ahead of the decision's release.

Or it may be something far less respectful of the Constitution. It could be the NSA has found another way to collect this same data without having to run it by the newly-adversarial FISA court. As Wheeler points out, Section 215 may have been restricted but the powers granted by Executive Order 12333 continue to expand.

Whatever the real motivation, it appears the domestic surveillance program that never prevented a terrorist attack will continue to never prevent terrorist attacks. The upside is we may not be throwing any more tax dollars at a national security program that adds nothing to our nation's security.

Filed Under: bulk surveillance, ed snowden, mass surveillance, metadata, nsa, phone records, section 215

NSA Extends Its Streak Of Surveillance Violations To Fourteen Years With Its Latest Announcement

from the let's-hear-it-for-the-good-guys! dept

There isn't a surveillance program or authority the NSA hasn't abused and yet it's still humming along, hoovering up data and communications while mostly useless Congress folks pretend to be in the oversight business. Section 702, the "about" program, Section 215… all of these have received judicial smackdowns and the occasional Congressional nastygram, but the only thing that's changed is the NSA's willingness to admit its failures.

Consistent with NSA’s core values of respect for the law, accountability, integrity, and transparency we are making public notice that on May 23, 2018, NSA began deleting all call detail records (CDRs) acquired since 2015 under Title V of the Foreign Intelligence Surveillance Act (FISA).

2015 would be the date the control of phone records shifted back to phone companies and the FISA court began demanding articulable suspicion for specific targets before the NSA could even ask phone companies for records. Prior to that, the NSA had collected phone records from telcos in bulk, using its internal tools to limit itself to targeted searches of compiled haystacks. The USA Freedom Act effectively ended this part of the Section 215 program, forcing the NSA to target first and ask for only records related to its targets.

Apparently, it can't even do this right.

NSA is deleting the CDRs because several months ago NSA analysts noted technical irregularities in some data received from telecommunications service providers. These irregularities also resulted in the production to NSA of some CDRs that NSA was not authorized to receive. Because it was infeasible to identify and isolate properly produced data, NSA concluded that it should not use any of the CDRs. Consequently, NSA, in consultation with the Department of Justice and the Office of the Director of National Intelligence, decided that the appropriate course of action was to delete all CDRs.

Whatever was broken on the tech end is now apparently fixed. All oversight has been notified and the collection of records (via telcos) will continue. I guess our three-year national nightmare is over and the NSA is finally on the road to recov---

Last year, I did a report that catalogued all the times NSA had violated FISA since the Stellar Wind phone dragnet got moved under FISA in 2004. There were the five different practices deemed violations of 1809(a)(2), which prohibits the use of any data that was illegally collected.

[...]

In addition to those, NSA had continued to conduct back door searches of data collected using upstream 702 collection even after John Bates prohibited the practice in 2011.

[...]

While Rosemary Collyer (who is the worst presiding FISA Judge ever) didn’t deem that a violation of 1809(a)(2) — meaning NSA didn’t have to segregate and destroy andy data collected improperly — it still violated the minimization procedures that control 702 collection.

So between 2004 and 2016, NSA was always breaking the rules of FISA in one way or another.

And we can now extend that timeline to 2018.

Thanks, Marcy Wheeler, for clearing that up. This is just a continuance of the NSA's inability to run its programs in a technically-capable manner, much less with an eye on the Constitution. Muted applause for taking this oversight before the few members who give a shit start asking questions, but why aren't we (and by "we," I mean the people who could actually do something about it) expecting more from an well-funded agency with vast technical knowledge? Sure, an apology is better than a plausible denial, but it's been 14 years of failure after failure. Where's the improvement? Or is national security just one of those things that's too important to be done properly? We just need to have it done, no matter how many violations occur in the process? I fear that's how most of the NSA's oversight actually feels: the ends justify the badly-broken means.

Filed Under: 4th amendment, call records, failures, nsa, privacy, section 215, surveillance, usa freedom act

NSA Admits It Has AGAIN Been Deleting Evidence Needed In Long-Running Surveillance Lawsuit

from the someday-the-NSA-will-get-a-handle-on-this-whole-'managing-data'-thing dept

The NSA is once again deleting data it's been ordered to retain for ongoing lawsuits. This isn't the first time. The Jewel v. NSA lawsuit -- which is nearing its tenth year in litigation -- has been ground zero for multiple NSA screw-ups. The shutdown of the Section 215 program resulted in some perhaps deliberate confusion within the agency. At first, the NSA decided it should just purge its 215 collections, taking with it anything that might be used against it in the Jewel case. Then it decided it would keep everything, giving it the opportunity to trawl pre-reform data banks for anything it might find useful, while simultaneously stiff-arming plaintiffs' requests for surveillance records.

Despite angering multiple judges with its inability to follow simple court orders, the NSA is back in front of a judge trying to explain why it has failed yet again to retain data relevant to the Jewel case.

[T]he NSA told U.S. District Court Judge Jeffrey White in a filing on Thursday night and another little-noticed submission last year that the agency did not preserve the content of internet communications intercepted between 2001 and 2007 under the program Bush ordered. To make matters worse, backup tapes that might have mitigated the failure were erased in 2009, 2011 and 2016, the NSA said.

That's the problem with collecting all the stuff. Where do you put it? Sooner or later, you have to get rid some stuff to make room for the new stuff. But rest assured, the NSA feels just awful it may have deleted crucial evidence.

“The NSA sincerely regrets its failure to prevent the deletion of this data,” NSA’s deputy director of capabilities, identified publicly as “Elizabeth B.,” wrote in a declaration filed in October. “NSA senior management is fully aware of this failure, and the Agency is committed to taking swift action to respond to the loss of this data.”

In the update Thursday, another NSA official said the data were deleted during a broad, housecleaning effort aimed at making space for incoming information.

Evidence spoliation d/b/a performance enhancements. That's the NSA way. The NSA claims potential evidence wasn't "targeted" but possibly was deleted. In other words: incidental deletion. This follows the NSA's assertions possible evidence was secured and fully backed up. Supposedly magnetic tapes containing communications and metadata pertinent to the Jewel case had been physically set aside and segregated from the NSA's other backups and data collections. That now appears not to have been the case.

The NSA is “preserving magnetic/digital tapes of the Internet content intercepted under the [PSP] since the inception of the program,” [NSA official Miriam P.] wrote, adding that “the NSA has stored these tapes in the offices of its General Counsel.”

The agency now says, “regrettably,” that the statement “may have been only partially accurate when made.”

The NSA is now making "extraordinary" efforts to recover the stuff it said wouldn't be erased. As the EFF (representing the plaintiff) has pointed out (repeatedly), missing evidence should be presumed to be favorable to the person asking for it to be handed over. Anything the NSA can't come up with should bolster the plaintiff's case. The NSA can't plausibly argue the plaintiff was never targeted or swept up incidentally in its collections if it doesn't have a copy of this data that shows otherwise.

Any person offering up shrugs and apologies instead of requested evidence could expect to be sanctioned by the court. Somehow I doubt the NSA will be subject to the same rules that apply to everyone else.

Filed Under: deleting evidence, evidence, jewel v. nsa, nsa, section 215, spoliation

Judge Tosses Long-Running Section 215 Surveillance Lawsuit

from the it's-time-for-the-Supreme-Court-to-stop-dodging-difficult-surveillance-quest dept

A federal judge has issued the final word in one long-running dragnet surveillance suit. The lawsuit, filed by Larry Klayman immediately after the first Snowden leak, alleged the Section 215 phone records program -- targeting Verizon Business customers according to the leaked document -- was unconstitutional. DC district court judge Richard Leon agreed, issuing an injunction in December 2013 demanding a cessation of the Section 215 dragnet.

This order was immediately stayed to allow the government to appeal (and to continue harvesting domestic phone records in bulk). The Appeals Court disagreed with Leon, sending the case back for another ruling. It didn't change anything at the lower level. Judge Leon still found the program unconstitutional and ordered the NSA to stop collecting the phone records of the two named plaintiffs.

Shortly after this ruling, the USA Freedom Act ended the NSA's bulk collection of phone records, largely rendering the lawsuit moot. After another round of appeals, the government asked Judge Leon to dismiss the case entirely. Judge Leon has done so, agreeing with the government that the implementation of the USA Freedom Act prevents it from collecting phone records in bulk and brings it in line with the injunction previously issued by Leon. The plaintiffs were hoping a round of discovery would produce records substantiating their claims of warrantless surveillance of the single named client. Judge Leon has denied additional requests by the plaintiffs and dismissed [PDF] the case with prejudice.

[E]ven if plaintiffs were able to establish -- through jurisdictional discovery -- that the NSA had, in fact, collected their telephony metadata, they still would not be able to overcome the jurisdictional defect in this case. Because bulk collection under Section 215 is now prohibited by statute, plaintiffs' claims for injunctive relief against bulk collection are moot, regardless of whether the Government actually collected and queried plaintiffs' telephony metadata pursuant to the Section 215 program in the past.

The decision closes with Judge Leon expressing his hope the Supreme Court might step in and address the Third Party Doctrine directly and more closely examine the "expectation of privacy" concept in the context of today's communication methods. (This is why the upcoming Carpenter case -- dealing with warrantless collection of historical cell site information -- bears watching.)

While the zeal and vigilance with which plaintiffs have sought to protect our Constitutional rights is indeed laudable, this Court, in the final analysis, has no choice but to dismiss these cases for plaintiffs' failure to demonstrate the necessary jurisdiction to proceed. I do so today, however, well aware that I will not be the last District Judge who will be required to determine the appropriate balance between our national security and privacy interests during this never-ending war on terror. Hopefully by the time these issues are next joined, our Supreme Court will have had the opportunity to provide us with further guidance on the parameters of our privacy interests in this era of ever-increasing electronic communication. If not, concerned citizens such as these will continue to shoulder the heavy yoke that vigilance to our Constitutional liberties surely requires.

Filed Under: 4th amendment, larry klayman, mass surveillance, nsa, richard leon, section 215, surveillance

NSA Official Says It Might Have Been Nice If The Agency Had Handled The Public Disclosure Of The Section 215 Program

from the see-also:-snooze-v.-lose dept

Now that Edward Snowden has done all the leg work, the Intelligence Community is admitting that, yeah, maybe it should have been more upfront about the phone metadata collection. The soon-to-be-former NSA Deputy Director says it might have been better for the agency to be out ahead of the disclosures, rather than forced to play defense.

Richard Ledgett, who is retiring next month, said in an interview with Reuters that disclosing the secret program would have been difficult. But, he said, doing so might have mitigated the damage done by Snowden.

"That's one where I might have to say, yes," Ledgett said in his office at NSA headquarters in Fort Meade, Maryland. "That's one where maybe it would have been less shocking when Snowden did what he did."

Ledgett's not alone in feeling this way. Since the leaking began back in June 2013, several current and former officials have made similar statements. For one thing, controlling the disclosure means controlling the narrative. The IC could have pointed to several things in defense of the bulk domestic collection program, including:

a.) the lawfulness of the collection
b.) the rigorous oversight
c.) the strict compliance with FISA and the FISA court
d.) it's "just metadata"

Doing so might have headed off Snowden and other leakers. Possibly. At the very least, it would have bought the NSA some time and some narrative leeway before documents began being published showing:

a.) the collection's lawfulness was dubious at best
b.) the oversight was a joke
c.) the FISA court routinely discovered abuse by the NSA
d.) metadata exposes quite a bit of a person's life, actually.

Not quite as straightforward were Ledgett's comments on the Section 702 program, which provides backdoor domestic searches for a variety of government agencies, as well as harvests millions of communications from internet backbones. During the run-up to the Section 215 reauthorization two years ago, it sometimes appeared the NSA was willing to make deep compromises on the telephone metadata program in order to spare the internet collection the same sort of Congressional scrutiny.

Since 2011, oversight committee members (well, just a couple of them, actually) have been demanding an estimate of the amount of American communications incidentally-collected by the NSA with this program. Six years later, there have been promises made but none kept. At this point, Ledgett is just another IC official making promises no one seems to have any intent of keeping.

Privacy advocates have repeatedly demanded that the government share an estimate of how many Americans are ensnared by programs authorized under Section 702.

Intelligence officials have declined to do so. But Ledgett, in remarks earlier Tuesday at a forum sponsored by the Aspen Institute, said "yes" when asked if an estimate would be provided before year end.

We'll see. Deadlines have been ignored in the past and Ledgett's on his way out the door, so these are promises he can't be held responsible for not keeping.

Filed Under: disclosure, ed snowden, mass surveillance, nsa, richard ledgett, section 215

Inspector General's Report Notes Section 215 Requests Down Sharply Since 2013

from the but-that's-because-the-government-has-so-many-other-options dept

The Snowden Effect continues. In addition to actual oversight finally being applied to surveillance programs, the breadth and scope of some programs continues to be narrowed. Some of this narrowing has been forced on the NSA by legislation. But some of it also appears to be shame-related. It's no longer as acceptable to harvest vast amounts of data domestically, apparently.

Shane Harris at The Daily Beast notes that the latest Inspector General's report [PDF] details a sharp decline in Section 215 requests since Snowden's debut leak in June 2013.

Between 2012 and 2014, that court approved 561 so-called “business records orders,” but that number dropped from a nine-year high of 212 in 2012 to 170 in 2014, a nearly 20 percent decrease, according to a review by the Justice Department’s inspector general.

The number fell again in 2015 to 142 orders.

If Snowden hadn't dumped the documents, the program would have remained unaltered and, most likely, requests would have continued to rise. Thanks to a forced "conversation" about domestic surveillance, the resulting USA Freedom Act, along with the appointment of an amicus to make FISA court proceedings a tiny bit more adversarial, the government has scaled back its requests for phone metadata and other "third party" records. Having to target first and request second kind of has that effect.

The other effect leading to this decline is also related to the document leaks. The NSA -- and the FBI, which actually makes the requests for data -- found itself an outcast in its own country. Fewer requests are apparently being made because it's no longer socially acceptable to do so.

A Justice Department official attributed the diminishing use of the program to the “stigma attached” to it after Snowden’s leaks.

Then again, this might just be a nice thing to say. The FBI and NSA have several other surveillance programs operating with less oversight and restrictions than the Section 215 program. Although officials claimed the program was essential when defending it against legislative efforts, there was hardly any evidence presented to back this assertion up. Even the OIG report notes as much, stating that FBI agents "could not identify any major case developments" from its business records collections. Even so, the FBI continues to believe the bulk collection of metadata still serves as a valuable "building block" of its investigations, even if it's ultimately an extraneous one.

The report also points out that the FBI routinely uses other processes to obtain these same records -- ones that are faster and don't require a trip to the FISA court. In between redactions, the OIG notes that the FBI opens "parallel investigations" and utilizes things like grand jury subpoenas to compel the production of business records, rather than routing this through the FISA court. Then there's the FBI's use of National Security Letters, which has showed no sign of slowing even when faced with additional public scrutiny.

Shane Harris points out that the Section 702 program, which harvests vast amounts of internet/email communications and data, is far more useful and far more powerful. That's up for renewal next year and it will be interesting to see how James Clapper's office -- and the FBI -- handle any obstacles standing in the way of a no-questions-asked reapproval. The intelligence community seemed willing to let Section 215 take center stage during the push to pass the USA Freedom Act -- a surveillance state scapegoat released to draw attention away from the NSA's more intrusive bulk collections. But the intel community isn't going to be as easily persuaded to dial back a program that targets platforms that facilitate communications on a much wider scale.

Filed Under: bulk collection, ed snowden, mass surveillance, nsa, section 215, surveillance

President Obama Nominates New Librarian Of Congress Who Supports Open Access, Fights Against Surveillance

from the this-looks-good dept

So here's a pleasant surprise. President Obama has nominated Carla Hayden as the new Librarian of Congress, and at a first glance, she looks perfect for the job. The job is super important for a whole variety of reasons, including that the Librarian of Congress controls the Copyright Office (more on that in a bit...). The former Librarian of Congress, James Billington, was really bad. He apparently was mostly focused on hobnobbing with rich people in fancy places around the globe than doing anything useful. A report by the Government Accountability Office found a massive leadership vacuum with Billington when it came to technology issues, noting that he basically ignored technology entirely. When Billington announced he was retiring, the Washington Post reported that employees were absolutely elated:

The reaction inside the library was almost gleeful, as one employee joked that some workers were thinking of organizing a conga line down Pennsylvania Avenue. Another said it felt like someone opened a window.

“There is a general sense of relief, hope and renewal, all rolled into one feeling,” said one staffer who spoke on the condition of anonymity for fear of reprisal. “Like a great weight has been lifted from our shoulders.”

Maureen Moore, who retired in 2005 but volunteers at the library, said she and her friends were thrilled.

“It’s a great day for the library. The man has had 27 years to do good things, and he hasn’t,” she said.

That line is great: The man has had 27 years to do good things, and he hasn't. But, right after that, that same Maureen Moore noted what many people feared: what if the replacement was worse and didn't actually understand the key issues of the day: "But the ecstasy is tempered by worry that Obama will appoint someone else who isn’t a librarian, someone who doesn’t have management experience or another megalomaniac."

There had been a lot of speculation about who might be nominated, but it seemed tough to find people with the right qualifications. Someone who actually was a librarian, who had real management experience with a large organization and someone who actually understood the issues.

And at a first glance, Hayden seems perfect. For a while now, she's been CEO of the Enoch Pratt Free Library in Balitmore, and by all accounts has done an amazing job modernizing that system. It's also good to see that the President's announcement directly calls out her support of open access to information:

Her understanding of the pivotal role that emerging technologies play in libraries will be essential in leading the Library of Congress as it continues to modernize its infrastructure and promote open access and full participation in today's digital world.

The video that comes with the announcement also focuses quite a bit on free and open access to information and the role of the Library of Congress in encouraging that:

Today, I'm nominating Dr. Carla Hayden to be our 14th Librarian of Congress. Michelle and I have known Carla since her days working at the Chicago Public Library, and her dedication to learning and education is unparalleled. More recently, she's been hard at work revitalizing Baltimore’s struggling library system as the CEO of Enoch Pratt Free Library. Last year, during the unrest in Baltimore, Dr. Hayden kept the doors of the Pratt open as a beacon for the community. Her understanding of the pivotal role that emerging technologies play in libraries will be essential in leading the Library of Congress as it continues to modernize its infrastructure and promote open access and full participation in today's digital world. Finally, Dr. Hayden will be the first woman and the first African-American to hold this position in its 214 year history – both of which are long overdue.I hope you'll take a couple minutes to watch this video and meet Carla for yourself. I have no doubt she'll make a fantastic Librarian of Congress.

Posted by President Obama on Wednesday, February 24, 2016

Beyond that, Hayden was one of the leading voices speaking out against surveillance. As President of the American Library Association at the time when the PATRIOT Act was being debated, she was vocal in opposition, especially to Section 215, which was used to create the phone metadata program that Ed Snowden revealed. What many people forget is that it was the librarians who were most vocal about Section 215 when it was first proposed, as many people thought it would be used to demand things like library records to see what was being checked out -- and librarians are big supporters of privacy.

She's also spoken out for years about the value of free access to information. Here's a 2003 profile of Hayden in Ms. Magazine (where she was named Woman of the Year) in which she notes:

“Libraries are a cornerstone of democracy—where information is free and equally available to everyone. People tend to take that for granted,” says Hayden. “And they don’t realize what is at stake when that is put at risk.”

From that same profile:

Hayden’s stance against the PATRIOT Act is part and parcel of her vision of the library as an integral element of democracy. “We serve the underserved,” Hayden says. “When libraries fight against the PATRIOT Act, or against [mandatory Internet filters], we’re fighting for the public. Most of the people who use public libraries don’t have the opportunity to buy books at a bookstore or on Amazon.com. What the library does is protect the rights of all people to fully and freely access information and to pursue knowledge, without fear of repercussion.”

Of course, the best recommendation may be the fear already coming out of the RIAA, who put out a fairly ridiculous statement in response:

“It is worth noting that the Library of Congress and the U.S. Copyright Office have been mutually respectful of each other’s areas of expertise. We would hope that the new Librarian would continue to demonstrate that respect for the Copyright Office’s expertise in copyright policy and recommendations to Congress.”

In other words "don't mess with the Copyright Office." Of course, what this really is about is the current and ongoing fight over what to do to "modernize" the Copyright Office. There's a big push from the MPAA and the RIAA to move the Copyright Office out of the Library of Congress and either merge it into the US Patent and Trademark Office, or make it a stand alone agency. That's all part of the decades-long whitewashing of the history of copyright, to pretend that it's not about benefiting the public with more access to information, but rather about protecting a particular industry. That fight will only take on more prominence as a result of this nomination.

Of course, there's also the question of whether or not the Senate will approve the nomination. Obviously, there are different stakes involved, but everyone lately has been talking about whether or not the Senate will even hold hearings on President Obama's expected Supreme Court nomination. And the (totally bullshit) argument against it is "well, this is an election year, and we should let the public decide who the President will be, and then let that President choose a nominee." That's silly for a whole bunch of reasons, and without the SCOTUS backdrop no one would think twice about considering the LOC nominee. However, given all the statements being made, I could see some in the Senate argue that they can't consider any nominees for anything, just to appear to remain consistent.

And, of course, some are actually wondering if her vocal opposition to the PATRIOT Act will somehow get in the way of her appointment. I guess that's possible, but if so, it would be crazy, because she was absolutely right, and Congress itself has now updated Section 215 after Ed Snowden revealed how it was being abused.

Either way, this appears to be a fantastic nomination and I hope it does go smoothly, and that it leads to not just a modernized Library of Congress, but a modernized Copyright Office as well --and by that I mean one that doesn't just focus on doing the bidding of a few legacy industry players, but actually on serving the public interest.

Filed Under: carla hayden, copyright, copyright office, librarian of congress, librarians, open access, patriot act, privacy, public benefit, section 215, surveillance