Mitch McConnell Pushing Bad Amendments To Block Any Useful Amendments On Surveillance Reform

from the because-of-course dept

No matter what some are claiming, there are some important reforms in the USA Freedom Act. It doesn't go far enough, and the bill is far from perfect, but as a starting point it has some value. But with three provisions expiring last night, while the Senate looks to finally vote on the USA Freedom Act, it has allowed Mitch McConnell to "fill the tree" with really bad amendments, rather than with actually useful amendments that would improve the USA Freedom Act. Chances are that McConnell's amendments won't pass either -- and the original version of the USA Freedom Act will make it through. But the whole situation should just be a reminder that whatever happens this week, we still need significantly more reform before the abuses of the intelligence community are truly limited and stopped.

Filed Under: mass surveillance, mitch mcconnell, patriot act, surveillance, surveillance reform, usa freedom act

CIA Boss Claims That Merely Debating Surveillance Is Helping The Terrorists

from the why-do-we-let-such-people-retain-positions-of-power dept

Yesterday morning, prior to the Senate debate that has resulted in the (brief) expiration of a few provisions in the PATRIOT Act, CIA director John Brennan went on one of those Sunday morning talk shows and made a complete fool of himself, pretending that merely debating things like the 4th Amendment was helping the terrorists. It started off with a claim that various bad people are "watching carefully" what happens, as if anyone honestly believes that terrorists are looking at last night's vote and thinking, "Oh boy, now we can plan a new bombing campaign by calling America again!"

“I think terrorist elements have watched very carefully what has happened here in the United States,” Director John Brennan said on CBS’s “Face the Nation.”

And, from there, he argues that any debate about this is bad for America, saying that we "can't afford to deal with" such a debate right now.

Whether or not it’s disclosures of classified information, or whether it’s changes in the law and policies, they’re looking for the seams to operate within,” he added. “This is something that we can’t afford to deal with right now, because if you look at the horrific terrorist attacks and violence that’s being perpetrated around the globe, we need to keep our country safe.”

So, when can we deal with these things? Because, sorry, but I thought a core principle of our democratic nation was supposed to be that we could have these kinds of debates openly, and that we didn't have secret law, with the intelligence community purposely reinterpreting laws to mean things that their plain language clearly do not allow. And, yes, the PATRIOT Act was passed in the wake of 9/11, but we put sunset provisions in there on purpose so that the eventual debate could happen.

But it never seems to happen. Each time the previous sunsets have come up, Congress has avoided debate and waited until the last minute before just extending it. And, so this time, after two years of very public debate -- thanks to Ed Snowden -- Brennan now wants to claim that we can't afford "to deal with this right now"?

The whole "we need to keep our country safe" line is a bunch of hogwash as well. Remember, that the key program that expired last night, the one (very likely illegally) based on Section 215, has not been shown to have been critical in stopping a single domestic terrorist attack. In nearly 15 years. I think it's not unreasonable to say that we can have some debate on whether or not it's necessary. And also whether or not it violates the Constitution.

Why would a sitting CIA director be so worried about having such a debate? Why would a sitting CIA director not be willing to discuss what he and his colleagues are doing? Yes, obviously, operational details can and should be classified. But that's not what's being debated. The question is whether or not the intelligence community should have access to everyone's phone records without a warrant.

“The tools that the government has used over the last dozen year to keep this country safe are integral to making sure were able to stop terrorist attacks,” Brennan said.

Except we know that's a lie, because everyone has confirmed that the program has not been useful.

Lying about it just raises more questions. Why does Brennan want this program so badly? What is he and the CIA doing with it?

Filed Under: cia, debate, john brennnan, patriot act, section 215, surveillance

Three PATRIOT Act Provisions Likely To Sunset, Briefly, But USA Freedom Will Pass Shortly

from the what-happens-next-is-what-matters dept

On Friday, we posted a story looking at the divergent views of two of my favorite privacy experts: Jennifer Granick favoring just letting the three PATRIOT Act clauses to sunset... and Julian Sanchez arguing that just letting those provisions sunset would unfortunately leave aside many of the important reforms in the USA Freedom Act. But, as we noted, both of them seemed to agree that either such result, without further reforms, wouldn't be enough.

Well, now it appears that both things will happen. After some debate, a late vote this evening, the Senate voted 77 to 17 to move forward on the USA Freedom Act -- but a vote will not occur until Monday at the earliest. That means, in a few hours, those three provisions of the PATRIOT Act will expire (and, no, this does not mean -- as some have falsely stated that the PATRIOT Act itself is dead). And then, a few days later, the USA Freedom Act will be passed (even Rand Paul admitted this is what's going to happen, even as he sought to block USA Freedom). Paul and some others are going to try to add some important amendments to the bill, but they're unlikely to pass.

In other words, both of the arguments that Granick and Sanchez made seem to have happened. Section 215 will "sunset" briefly -- hence a symbolic win. And USA Freedom Act, which has some useful reforms, will pass. And... then we'll still have a long way to go to get even more important surveillance reform. The events of this evening are an important step forward. Until just recently, the very idea that we might limit the Section 215 program for real seemed unlikely. And yet, now that's happening -- with both a brief sunset and the reforms in the USA Freedom Act.

But it's not enough. There is still plenty of excessive surveillance happening -- under other provisions, including Section 702 of the FISA Amendments Act and Executive Order 12333. Those need to be dealt with if we're to have real surveillance reform. The end result is that this is a an important victory for surveillance reform -- which never would have happened without Ed Snowden's actions -- but it's just a step. And a lot more is needed. And it's needed now.

Filed Under: bulk collection, business records, executive order 12333, mass surveillance, nsa, patriot act, rand paul, section 215, section 702, sunset, surveillance

Sunsetting A Few Parts Of The PATRIOT Act May Be Symbolic And Good, But It Won't Really Change Much By Itself

from the we-need-reform dept

As you likely know, barring some sort of last minute deal this weekend (which is a distinct possibility) a few sections of the PATRIOT Act are set to expire (or, as the cool kids are saying: "sunset"). It is not -- as some have falsely claimed -- the entire PATRIOT Act ending. It just a few pieces -- with most of the publicity focused on Section 215, which had been the rationale for the bulk phone records collection that was the first big leak from the Snowden documents. There's been a bit of a debate among some about whether or not this sunset is really that important, beyond the clear symbolism of finally killing off part of the PATRIOT Act. Two of the people I most respect on privacy and surveillance issues -- Jennifer Granick and Julian Sanchez -- have come down on seemingly different sides of the issue, so it seemed worth comparing what they had to say (and realizing that they're really not that far off from each other). Granick takes the position that letting the provisions sunset is important and a big deal. She admits that it's still limited:

If Congress does nothing, section 215 will sunset. And this is exactly what reformers should be asking for. The fact is, sunset is the only thing that will definitely stop massive spying under section 215. It won’t stop mass surveillance more generally, but killing the law that NSA and FBI have abused for years is the first step.

But, still, she says, it's important and will have an impact. In particular, she notes that while basic reform -- a la the USA Freedom Act -- might have made sense before, "the political winds have shifted." In particular, she points to the the big 2nd Circuit appeals court ruling that noted that Section 215 never really authorized the bulk records collection program in the first place -- along with a growing number of elected officials who appear to believe the intelligence community has gone too far. Her fear, is that if we passed something like the USA Freedom Act, it will take away any chance at real reform, whereas sunsetting may force the issue:

Americans want real, not symbolic change. Sixty percent of likely voters from both political parties believe the rules on surveillance have to become more restrictive. Groups that were heavily involved in the USAF compromise negotiations are concerned that if it doesn’t pass, if 215 sunsets, civil liberties advocates will have to struggle to ensure that something worse than USAF doesn’t become law. But there’s a clear and present danger that if USAF passes, everyone will pat themselves on the back for a job well done, suspicionless domestic spying will continue, the amazing and expansive Second Circuit opinion will be mooted, and it’ll be suspicionless spying as usual until the next big surveillance provision, section 702 of the FISA Amendments Act sunsets at the end of 2017, and we’re in the same position again. The truth is, this struggle to be a robust democracy in the face of the threat of terrorism, is here to stay, regardless of what happens in the next week or so.

So, let’s don’t just do something, let’s stand here. Let’s let 215 sunset. It was unthinkable a month ago. Today it’s likely. In combination with the Second Circuit opinion, the sunset will, irrefutably, put laws on the books that will end domestic dragnets. Then, let’s get serious. Let’s have hearings, really understand all the spying being done in our name, how the information is being used. Let’s set up real, comprehensive, robust checks and balances, starting with declassifying interpretations of law and changing the role of the FISA judges.

On the flip-side, however, we have Sanchez, who argues that the benefits to sunsetting Section 215 are massively overstated. He highlights how the intelligence and law enforcement communities have a number of other authorities under which they have collected similar "bulk" records, and that they would likely shift to pretty quickly after Section 215 goes away.

But while "Sunset the Patriot Act" makes for an appealing slogan, the fact remains that the vast majority of the Patriot Act is permanent—and includes an array of overlapping authorities that will limit the effect of an expiration.

While section 215 covers business records, section 214, also known as the "pen register/trap & trace" authority, covers the acquisition of communications “metadata” (things like dialed phone numbers and email or Internet Protocol addresses) in real time.

Years before the current version of the NSA telephone program under 215 was born, the government employed similar arguments to persuade the secret Foreign Intelligence Surveillance Court (FISC) to bless a bulk program vacuuming up international internet metadata under the aegis of section 214. Though that program was ended in 2011—likely at least in part because NSA was able to obtain much of the same data by collecting it overseas, with fewer restrictions—the authority is permanent.

Also permanent are National Security Letters or NSLs, which that allow the FBI to obtain a more limited range of telecommunications and financial records without even needing to seek judicial approval. Unsurprisingly, the government loves these streamlined tools, and used them so promiscuously that the FBI didn’t even bother using 215 for more than a year after the passage of the Patriot Act. Inspector General reports have also made clear that the FBI is happy to substitute NSLs for 215 orders when even the highly accommodating FISC manages a rare display of backbone. In at least one case, when the secret court refused an application for journalists’ records on First Amendment grounds, the Bureau turned around and obtained the same data using National Security Letters.

Even worse, there's actually something of a "grandfather clause" that will let the NSA keep on keeping on anyway:

Even 215 itself doesn’t really expire when it expires. In theory, the law reverts to a pre–Patriot Act version of the business records authority that is restricted to records that "pertain" to a suspected foreign agent or terrorist—language the government is sure to read as broadly as possible. But thanks to a little-noticed grandfather clause in the law, the current souped-up version of the law, which covers any records “relevant” to an authorized national security investigation, will remain available for investigations already open at the time of sunset, as well as new investigations into offenses committed before the sunset. Since the FBI routinely maintains massive “enterprise” investigations covering entire terror groups, which can continue for years if not decades, we can expect section 215 to have a lengthy afterlife.

In short: sunsetting may be symbolic, but it won't really change much on its own. Sanchez points out that what we really need is real reform -- and his fear is that by focusing so much on championing the "sunset," people advocating for such a solution may miss out on then adding the necessary surveillance reforms that are needed beyond that:

...the celebration may not only be premature, but counterproductive if the impending expiration is perceived as a substantial victory in itself. Some legislators and activists are now so fixated on the symbolism of sunsetting "the Patriot Act" that they’re even urging opposition to broader reforms.

Sanchez readily admits that the USA Freedom Act isn't perfect either, but that it does have many features that are important:

That’s not to say that the USA Freedom Act is by any means an ideal alternative, or that its critics shouldn’t use the sunset of 215 as leverage to push for stronger reforms. USA Freedom, for instance, doesn’t even touch massive surveillance within the United States under section 702 of the FISA Amendments Act, or the even more massive spying enabled by Executive Order 12333, a Reagan-era order that covers surveillance conducted outside the United States. But the Freedom Act does at least cover the full range of Patriot Act authorities that employ the "relevance" standard, preventing a tricky shell game that simply moves collection from expired authorities to permanent ones.

The way USA Freedom seeks to do this is also hardly perfect: The law creates a streamlined process for obtaining specific telephone records from multiple phone carriers (addressing objections that a massive NSA database was the only way to avoid the cumbersome necessity of serving many companies with orders for records stored in incompatible formats) and requires that, across all these authorities, "specific selection terms"—like a phone number or billing address—be used to identify the particular records sought. That means instead of evaluating whether an entire database might be “relevant” when considered in aggregate, the court would have to consider whether the government had demonstrated the relevance of the particular records corresponding to a set of selection terms.

Both are very interesting reads -- and while they appear to be taking the opposite viewpoint, they really are a lot closer than they may appear on the surface. Both are advocating for the need for real surveillance reform, going beyond just this program. Both recognize that sunsetting Section 215 is largely symbolic. Where they differ is in their thinking about how best to get there. Sanchez worries that the sunset will be seen as "mission accomplished" and real reform won't occur. Granick fears the same "mission accomplished" feeling with the too weak USA Freedom Act.

To be honest, they both may have a point. The common message remains there, however: we need real surveillance reform to stop an awful lot of bad activity on the part of the intelligence (and law enforcement) community. Sunsetting Section 215 is a possible step. USA Freedom is another possible step. Either one, on their own, is not nearly enough.

That said, the fact that either are seriously on the table is a huge step forward on its own. For years, surveillance has only expanded. And we're actually at a rare point in history where things are going to go the other way. Now we just need to make it meaningful in creating something that goes beyond either just sunsetting or just USA Freedom.

Filed Under: bulk collection, mass surveillance, nsa, patriot act, phone records, section 215, sunset, sunsetting, surveillance, surveillance reform, usa freedom act

The NYTimes Plays Its Role In 'Keeping Fear Alive' With Pure Fearmongering Over PATRIOT Act Renewal

from the all-the-propaganda-that's-fit-to-print dept

Earlier this year, we wrote about the psychological games that surveillance state defenders play -- both on themselves and the public -- to continually ratchet up programs that show no evidence of working. In it, we pointed to a great post by the ACLU's Kade Crockford, highlighting a rare case where an FBI official was forthright about what's really going on:

If you’re submitting budget proposals for a law enforcement agency, for an intelligence agency, you’re not going to submit the proposal that ‘We won the war on terror and everything’s great,’ cuz the first thing that’s gonna happen is your budget’s gonna be cut in half. You know, it’s my opposite of Jesse Jackson’s ‘Keep Hope Alive’—it’s ‘Keep Fear Alive.’ Keep it alive.

Keep fear alive. Keep it alive. And, apparently, one great way to do that is to basically get the NY Times to run pure government propaganda in the form of simply repeating anonymous fearmongering from administration officials who set up a call for this exact purpose:

“What you’re doing, essentially, is you’re playing national security Russian roulette,” one senior administration official said of allowing the powers to lapse. That prospect appears increasingly likely with the measure, the USA Freedom Act, stalled and lawmakers in their home states and districts during a congressional recess.

“We’re in uncharted waters,” another senior member of the administration said at a briefing organized by the White House, where three officials spoke with reporters about the consequences of inaction by Congress. “We have not had to confront addressing the terrorist threat without these authorities, and it’s going to be fraught with unnecessary risk.”

First, note the anonymity, even though this isn't a leak or a reporter sniffing out a story and needing to protect sources. This is a "briefing organized by the White House" where they play stupid games in demanding anonymity for the sole purpose of avoiding accountability. Second, note the blatant fearmongering without any specifics. It's pure "keep fear alive" in action -- aided along by a stenographer at the NY Times.

All the propaganda that's fit to print.

As the Intercept rightly notes, this piece was published without even the slightest critical look into the statements by those officials:

Worst of all, it’s all published uncritically. There’s not a syllable challenging or questioning any of these dire warnings. No Patriot Act opponent is heard from. None of the multiple facts exposing these scare tactics as manipulative and false are referenced.

It’s just government propaganda masquerading as a news article, where anonymous officials warn the country that they will die if the Patriot Act isn’t renewed immediately, while decreeing that Congressional critics of the law will have blood on their hands due to their refusal to obey. In other words, it’s a perfect museum exhibit for how government officials in both parties and American media outlets have collaborated for 15 years to enact one radical measure after the next and destroy any chance for rational discourse about it.

Once again, two separate government review boards, as well as judges who have looked over the program and Senators who have been briefed on the full extent of the program in question, have all said that the bulk metadata collection program has not proven useful in stopping terrorist attacks. At all.

And, of course, blatant fearmongering without comparing the costs and (lack of) benefits is completely useless. Again, it could be taken to any extreme. Would putting real-time cameras hovering over every living human being 24/7 allow the government to find out who was plotting a terrorist attack? In theory, yes. But everyone would consider it a gross violation of privacy. Just because a tool might be useful doesn't mean that it's the right thing to do. So, here we have a case of a "tool" that is both a clear violation of our civil liberties and one that hasn't even been found to be useful.

Yet why is the NY Times -- the so-called "paper of record" -- repeating blindly government propaganda about how important it is to keep the program alive? Keep fear alive, NY Times. Keep it alive.

Filed Under: journalism, keep fear alive, patriot act, reporting, section 215, stenography

Good News! Dianne Feinstein Is Here To Reform The Section 215 Program By Making Everything Worse!

from the breaking-what's-already-broken dept

As Section 215 dies a rather noisy death (OR DOES IT? An emergency session convenes on May 31st, a day normally filled with the quiet emptiness of the extended Memorial Day holiday), the defenders of the mostly-useless surveillance program are out in force, hoping to keep this part of the Patriot Act from expiring.

Mitch McConnell's hope for a no-questions-asked reauthorization is as dead as Section 215 (in its original form) appears to be. The USA Freedom Act stumbled in the Senate, falling three votes shy of being brought to the floor. Now, everyone seems to have a "fix" they'd like to offer. Unfortunately, some of those offering fixes aren't really interested in cutting back the metadata program.

Like Dianne Feinstein, for instance. About the only thing she's found contemptible about our nation's intelligence agencies is the CIA's proclivity for torturing detainees. And the longer she defends the NSA's intrusive programs, the more it gives off the impression that her main problem with the CIA's torture program is that it was ineffective.

She's offering her own "surveillance reform" bill in the wake of much legislative blood shedding, and much like her last "reform" offering, it does nothing of the sort.

[F]einstein’s bill, first reported by the Empty Wheel blog, rolls back a number of key provisions in the USA Freedom Act…

Rather than restrict the NSA (and the FBI, which benefits from the collection and issues the requests to the FISA Court in its name) to seeking metadata from service providers on a case-by-case basis, her bill introduces data retention requirements that amount to little more than simply relocating the metadata storage.

Feinstein’s current proposed bill – presented as an update to the original Foreign Intelligence Surveillance Act (Fisa) of 1978 – proposes an end to NSA bulk collection but contains various mandates for how phone companies would be required to store the data, something privacy advocates argue amounts to a re-creation of the NSA database in private hands.

Also missing are USA Freedom's stipulations aimed at greater transparency and oversight. Not only that, but her bill seems crafted to deter the next Edward Snowden from embarrassing the intelligence community's wholesale subversion of the Fourth Amendment.

Dianne Feinstein is the latest member of Congress to offer a non-compromise compromise to replace the compromise USA F-ReDux, this time with a bill that would:

• Impose a 2-year data mandate in some cases (which would affect Apple and Verizon most immediately)
• Extend the current dragnet order — which is already 89 days old — for an entire year
• Retain Richard Burr’s Section 215-specific Espionage Act imposing 10 year penalties on anyone who tells us what the intelligence community is really doing with the call records program
• Retain Richard Burr’s counter-productive amicus provision

Here's more detail on what Burr's "additions" actually mean, from Marcy Wheeler.

It appears to flip the amicus provision on its head, such that if Verizon or Apple challenged retention or any other part of the program, the FISC could provide a lawyer for the tech companies and tell that lawyer to fight for retention. And in the piece de la resistance, the bill creates its very own Espionage Act imposing 10 year prison terms for anyone who reveals precisely what’s happening in this expanded querying function at providers.

It is, in short, the forced-deputization of the nation’s communications providers to conduct EO 12333 spying on Americans within America.

These are the sort of "fixes" we can expect from staunch defenders of the NSA. They look like reforms, but they are surrounded by language that expands surveillance reach and government power. Tossing this bill down in the middle of legislative war over a program criticized heavily as both intrusive and useless is nothing more than Feinstein hoping to leverage the weight of the NSA's supposed oversight to push a few legislators off the "undecided" fence and towards ensuring the uninterrupted harvesting of "tangible things."

Filed Under: data retention, dianne feinstein, metadata, nsa, patriot act, section 215, surveillance, usa freedom act

Senate Fails To Pass Both USA Freedom And PATRIOT Act Extension, Setting Up Possible Expiration Of Section 215

from the the-drama-rises dept

Well, well. Here's a quick (rare) Saturday post just to get folks up to speed on what happened late last night. After going back and forth for a while, the Senate voted on... and failed to approve both a version of the USA Freedom Act and a short "clean extension" of the clauses of the PATRIOT Act that were set to expire -- mainly Section 215 which some (falsely) believe enables the NSA to collect bulk metadata from telcos (and potentially others). What this means is that it is much more likely that Section 215 expires entirely. The Senate has since left town, though it plans to come back next Sunday, May 31st to see if it can hammer out some sort of agreement. Though, beware of false compromises, such as those being pushed by Senate Intelligence Committee (and big time NSA supporter), Richard Burr. His "hastily introduced" bill pretends to try to "bridge the gap" but in actuality is much worse than basically anything else on the table.

Oftentimes when things like this happen, it's all political theater -- with Senators appearing to "take stands" on key issues to please constituents. This time, however, there does seem to be genuine confusion as to where this is all going to end up. Next week ought to be fairly interesting...

Filed Under: mitch mcconnell, patriot act, rand paul, richard burr, section 215, senate, usa freedom act

Why Is The Attorney General Making Claims About PATRIOT Act That Her Own Agency's Report Says Are Not True?

from the total-failure dept

We already posted about the new DOJ Inspector General report analyzing the FBI's use of the PATRIOT Act's Section 215 "business records" collection. Among the various things in the unredacted sections of the report is yet another claim (following on many similar statements) that the Section 215 program has never been shown to actually be that useful: That wasn't all that interesting on its own, given how many times others (including many with the security clearance and access to know) have made the same point. But what's incredibly troubling is that the very same day that this report came out, Attorney General Loretta Lynch was making the rounds claiming the exact opposite.

Meanwhile, today Attorney General Loretta Lynch weighed in on the debate in Congress, claiming the exact opposite. She was quoted by CBS News as saying that if Patriot Act Section 215 expires: “[W]e lose important tools. I think that we lose the ability to intercept these communications, which have proven very important in cases that we have built in the past.” (emphasis mine)

So to sum up: the Justice Department’s own Inspector General said information collected under Section 215 did not lead to "any major case developments,” but the Attorney General said that Section 215 has “proven very important in cases that we have built.” Both statements cannot be true.

And, remember, the Attorney General is the head of the Justice Department. It certainly sounds like she's either woefully uninformed or outright lying. She is new at the job, but not so new that she wouldn't know these basic facts.

And, in some ways it gets even worse. As Patrick Eddington points out, Lynch appears to be directly calling for the continuation of a program that the 2nd Circuit appeals court just declared illegal. Doesn't that raise some fairly important questions, when you have the Attorney General -- the person officially in charge of enforcing our laws insisting that we need to continue an illegal program?

Filed Under: attorney general, doj, loretta lynch, patriot act, section 215

Report: FBI's PATRIOT Act Snooping Goes Beyond Business Records, Subject To Few Restrictions

from the 'just-metadata'-means-whatever-the-FBI-can-obtain dept

A report by the FBI's Office of the Inspector General (OIG) on the agency's use of Section 215 collections has just been released in what can only be termed as "fortuitous" (or "suspicious") timing. Section 215 is dying. It was up for reauthorization on June 1st, but the Obama administration suddenly pushed that deadline up to the end of this week. Sen. Mitch McConnell took a stab at a clean reauth, but had his attempt scuttled by a court ruling finding the program unauthorized by existing law and the forward momentum of the revamped USA Freedom Act. And, as Section 215's death clock ticked away, Rand Paul and Ron Wyden engaged in a filibuster to block any last-second attempts to ram a clean reauthorization through Congress.

The report focuses mainly on the FBI's 2007-2009 use of the program in response to previous OIG recommendations and alterations ordered by the FISA court. As is to be expected in anything tangentially-related to the NSA, it's full of redactions, especially in areas where a little transparency would go a long way towards justifying the FBI's belief that the program should continue in a mostly-unaltered state.

Redactions like this do absolutely nothing to assure the public that the program is useful and/or considerate of citzens' rights.

Areas dedicated to discussing controls of the obtained data are similarly obscured. Whatever policies the FBI adopted in terms of minimization, dissemination and oversight at the recommendation of the OIG are covered in black ink.







What information does actually make its way past the redactions shows that what's collected (and turned over to the FBI) goes far beyond the "just" telephone metadata often claimed to be the primary target of the program's collections.

Far from being just business records -- something the public supposedly has no 4th Amendment-related privacy interest in -- the Section 215 program also allows the FBI to obtain "non-public" records and data.

In the 2008 report, we recommended that the Department implement minimization procedures for the handling of nonpublicly available information concerning U.S. persons in response to Section 215 orders…

More sentences scattered throughout the report hint at expansive collections going far beyond the business records covered by the Third Party Doctrine. As noted in the report, reauthorizations of the Patriot Act expanded the program's reach far beyond what was allowed in its earliest iterations -- from business records from certain approved sources to "any tangible thing." This, combined with a continually-lowered threshold for "relevance" has resulted in the following:

We found that [redacted] of [redacted] applications submitted to the FISA Court on behalf of the FBI requested materials related to Internet activity. [p. 7]

Materials produced in response to Section 215 orders now ranges from hard copy reproductions of business ledgers and receipts to gigabytes of metadata and other electronic information. [p. 8]

We reviewed [redacted] related Section 215 applications that requested subscriber and transactional information for [redacted] e-mail accounts from U.S. providers. [p. 40]

The report also notes that minimization procedures do not apply to "publicly-available information," possibly indicating that the FBI's interpretation of the Third Party Doctrine allows it to retain and search non-relevant information on US persons, as well as disseminate it freely without fear of breaching its internal policies. The FBI's "Final Procedures" -- adopted in the wake of the FISA court's smackdown of the NSA, as well as on the recommendation of the OIG -- only applies to "nonpublicly available information."

The OIG also cautions that technological advances have blurred the line between communications and metadata and warns the FBI that vigilance will be needed to keep the two separate. This statement points to the eventual development of further minimization procedures, but if it's anything like the last set of OIG recommendations, it will be years before the FBI gets around to putting anything in motion.

We found the Supplemental Orders significant because the practice began almost 3 years after the Department was required by the Reauthorization Act to adopt specific minimization procedures for material produced in response to Section 215 orders, and over a year after we found that the Interim Procedures implemented by the Department in September 2006 failed to meet the requirements of the Reauthorization Act. The Department and FBI ultimately produced final minimization procedures specifically designed for Section 215 materials in 2013. The Attorney General adopted the FBI Standard Minimization Procedures for Tangible Things Obtained Pursuant to Title of the Foreign Intelligence Surveillance Act on March 7, 2013 (Final Procedures), and in August 2013 the Department began to file Section 215 applications with the FISA Court which stated that the FBI would apply the Final Procedures to the Section 215 productions.

Given the significance of minimization procedures in the Reauthorization Act, we do not believe it should have taken 7 years for the Department to develop minimization procedures or 5 years to address the OIG recommendation that the Department comply with the statutory requirement to develop specific minimization procedures designed for business records…

The report also contained details on numerous instances of potential abuse of the Section 215 collections. Most of these discussions are redacted, but one reveals enough information to indicate the FISA Court was used to obtain information pertaining solely to a US person, as well as other intriguing (but mostly censored) incidents where FBI agents apparently felt FISA Court orders were more useful and expeditious than National Security Letters -- something of an anomaly for an agency that has so thoroughly abused its administrative privileges.

What is clear from these heavily-redacted recountings is that the FBI uses court orders designed for foreign intelligence gathering for domestic investigations, as well as to aid the agency in its cyberwar efforts.

The report also takes note of the severe restrictions imposed by the FISA court in 2008 after uncovering widespread abuse of the metadata collections by the NSA. It points out that several of these restrictions were lifted after an end-to-end review showed no instances of abuse by the agency during the period examined. In addition to confirming that the NSA collects from providers (plural) -- despite the government's arguments to the contrary when disputing plaintiffs' standing in Section 215-related lawsuits -- the report also points to the FBI and NSA obtaining records they shouldn't have had access to by an overly-helpful telco.

[N]SD reported to the FISA Court in March 2011 that in December 2010 and January 2011 NSA technical personnel discovered that the telephony metadata produced by a telecommunications provider included [redacted]. NSA contacted the carrier and was informed that a software change made in October 2010 resulted in this occurrence. According to the NSD's compliance notice filed with the Court, beginning on or about January 14, 2011, the telephony metadata did not include [redacted]. The NSA subsequently provide updates to the FISA Court describing the methods taken to purge the [redacted] from its databases.

And, as is the case with nearly every FBI document release, there's some over-redaction that serves no purpose other than to make the agency look foolish.

In June 2013, former NSA contract employee Edward Snowden caused to be publicly released documents relating to the bulk collection of telephony metadata and the Office of the Director of National Intelligence has since declassified aspects of this program. We have included a description of the NSA program, [redacted] in the body of this report.

The Department relied on [redacted] to obtain FISA Court orders [redacted].

So much for the transparency push. Despite leaks and declassification in response, the FBI withholds information already in the public domain.

Additionally, the document could have shed some light on the FBI's current Section 215 activities, but instead the agency has chosen to hide every last bit of discussion on its ongoing efforts. [pp. 68-72]


FBI head James Comey continues to insist there needs to be a discussion about the respective weighting of security and privacy, but heavily-redacted documents like these do not add to that discussion. How is the public supposed to weigh these two factors if it can't access the FBI's arguments in favor of Section 215's continued existence? The only purpose this document serves is to give legislative true believers something to wave around as they defend the Patriot Act's perpetual, unaltered renewal.

Filed Under: business records, doj, fbi, inspector general, nsa, oig, patriot act, section 215, surveillance

WSJ Editorial Board So Clueless It Thinks That We're Now 'Rushing' Through A Surveillance Debate That's Been Going On For Two Years

from the a-rush? dept

As the Senate does its little song and dance today over surveillance reform, kudos to the Wall Street Journal's editorial board for producing what has to be one of the most ridiculous opinion pieces on this debate to date. It's called The Anti-Surveillance Rush, and its main argument is that the Senate shouldn't be "rushing" through this debate, and that it should instead simply do a clean extension of section 215 of the PATRIOT Act to allow for further debate. This is wrong and it's clueless. The WSJ editorial board can be nutty at times, but the level of cluelenssness displayed here really takes it to another level. Let's dig in.

The Senate is supposed to be the cooling saucer for political passions, but surveillance opponents want it to be a slip ’n slide instead: They want the Senate to accept wholesale revisions to counterterrorism programs with little if any debate before Congress skips town for vacation at the end of the week. We hope Senators show more respect for their institutional dignity.

Little if any debate? Are they serious? This round of debate started almost exactly two years ago when Ed Snowden revealed the extent of the phone metadata collection program under Section 215. There have been numerous hearings, tons of public debate, articles, books, movies and more discussing this very topic. To pretend that this is a last minute debate is simply ridiculous. As for the claim that these are "wholesale revisions," most everyone admits that the changes are really not that major, but rather a small step towards actually respecting the 4th Amendment, but without any real changes to overall capabilities.

The House jammed the Senate last week with a bill that passed 338-88 and remakes intelligence collection of metadata phone records. House leaders of both parties know that floor time is limited and that the legal authorities for metadata, roving wiretaps for people who move across the U.S. border, and several other programs lapse in June. So their ultimatum is either to wave through their bill or undermine national security.

Almost none of that is true. After all, there was a similar debate last year on a nearly identical bill, and there has been widespread discussion about this for months. The fact that Section 215 sunsets next week has been known since the last renewal, and all of Congress has had years to work on a new solution.

In fact, let's compare this to another piece from the WSJ editorial board two years ago, in which it celebrated Congress's decision to renew the FISA Amendments Act (which houses a similar surveillance program) with little to no debate at all. There, the WSJ was excited:

With scarcely any notice, much less controversy, they did at least preserve one of the country's most important post-9/11 antiterror tools.

[....]

In September the House passed the "clean" five-year extension that the White House desired, 301 to 118. The Senate reserved all of a single day of debate on the floor to coincide with the post-Christmas fiscal cliff chaos, and a broad bipartisan majority defeated multiple amendments from the civil liberties absolutists on the left and right such as Kentucky's Rand Paul.

The bill was then whistled through 73-23 and Mr. Obama signed it Sunday night with no public comment other than a one-sentence statement from the White House press secretary indicating that the bill had been signed. Meanwhile, the press corps was wigging out about Facebook's privacy settings.

So, as long as it's granting more power to spy on us, the WSJ is against public debate. When it's about limiting such spying, the WSJ whines about how there's not enough debate. Fascinating.

Back in 2012, the editorial board was so positive that the spying was overblown that it mocked those who had worried about these programs (this was just months before the Snowden revelations:

That would be wiretapping, which you may recall liberals portrayed during the George W. Bush era as an illegal and unconstitutional license for co-President Dick Cheney and his spymasters to bug the bedrooms of all U.S. citizens. But now Washington has renewed the 2008 amendments to the Foreign Intelligence Surveillance Act that were due to expire at the end of 2012, with no substantive changes and none of the pseudo-apoplexy that prevailed during the Bush Presidency.

Funny how it's tough to have "apoplexy" when all the details are kept secret. Of course, now we know how much spying was being done, Congress actually wants to fix it, and the WSJ can't have that.

Back to the present article. The House did not "jam" this to the Senate. This issue has been known about and discussed for months. And, basically no one -- not even within the intelligence community -- is arguing that this "undermines national security."

The better outcome would be a clean, temporary extension that allows the Senate sufficient time to consider the details and understand what it is doing.

Bullshit. This has been debated for two years. Everyone -- especially the Senate -- has known about the June 1st sunset since it was put in place during the last renewal. And they still waited until the last minute to do this song and dance. A temporary extension will mean that they'll wait until the last minute of that extension for a similar song and dance and the WSJ can publish another clueless editorial saying we need more time for debate again.

Who do they think they're fooling?

The USA Freedom Act, which the House Intelligence and Judiciary Committees negotiated with the White House, is a panicky political response to the Edward Snowden-inspired frenzy over surveillance

The Snowden leak on this program happened almost exactly two years ago. The USA Freedom Act has been discussed and debated for well over a year in various formats. How is this a "panicky political response"?

Supposedly government spooks are bugging your bedroom and reading your emails—though they aren’t—and politicians want to be able to say they did something about it.

Strawman alert. No one is actually claiming that. They're claiming -- truthfully -- that the NSA is engaged in bulk collection of phone records, a program that two separate review boards by the President found illegal and unconstitutional and the important Second Circuit appeals court found illegal last week as well. Does the WSJ editorial board believe its readers are too stupid to know this?

Yet bulk call log searches are an important analytic tool that aid terror investigations and prevent attacks.

This is simply not true. As has been pointed out multiple times, the intelligence community could not provide a single example where that was the case. The only example presented was how it was used to track down a cab driver in American who sent some money to a questionable group in Somalia. That's it. There is no evidence that it was important in any terror investigations or in preventing a single attack.

From there, the WSJ whines that since the USA Freedom Act leaves data collection to the telcos, all hell is going to break loose:

In the best scenario, this untested leap to replace a framework that has been useful in the 14 years since 9/11 will make intelligence more time-consuming and less efficient. Speed and agility matter in uncovering plots or safe houses. And how multiple databases that are likely to be less secure than the NSA’s will protect privacy is anyone’s guess.

The "less secure" line is a bullshit red herring -- because the telcos already keep this data, so nothing changes there. It's just that the data is not also being held by the NSA. Second, the idea that this new process is somehow more time-consuming and less efficient doesn't have any actual support. Telcos have already shown to be all too willing to work closely with intelligence agencies to give them near real-time access when necessary. That's not suddenly going to go away.

But the House bill also declines to define how long telecoms must retain metadata. A year, a month? Who knows? If Washington’s relationship with Silicon Valley grows more adversarial, service providers may conclude it is in their commercial interests to erase these records more or less in real time. In that case the NSA won’t be able to look for a needle because there won’t be a haystack.

First, this seems to confuse "telcos" with "Silicon Valley" when they're very different things. Second, this conflates a bunch of different issues and suggests near total ignorance on the part of whoever wrote this editorial. Many of the records that the NSA wants are the kinds of business records that these companies need to hold onto for some period of time, so the fear of "no logs" is kind of meaningless. But, even if it was true that companies started to flush their logs, so what? There is no requirement that all of our activities be tracked. Law enforcement made due in the past when not everyone was automatically tracked all the time. They can do so again.

Among the GOP presidential field, Marco Rubio has come out in favor of metadata, while Chris Christie gave a thoughtful speech Monday on intelligence and foreign affairs in Portsmouth, New Hampshire.

Thoughtful? The one where he says all civil liberties fears were "baloney" coming from "extremists"? Yeah, that wasn't thoughtful. That was bombastic bullshit from a surveillance state apologist. Remember, this program was just declared illegal (with a strong hint of not being Constitutional) by the 2nd Circuit appeals court. And the WSJ is defending it.

A rush to the exits is no way to conduct U.S. intelligence, or the affairs of Congress. If a majority of Senators really do want to disarm in the terror war, then they should defend their positions, listen to the other side, and be accountable for the results. Cramming such a major policy into law before a holiday weekend is a failure to treat national security with the seriousness it deserves.

No one is disarming anyone. They're just making sure that the NSA can't unconstitutionally scoop up every bit of metadata under what is an illegal general warrant. And there is no rush. Again, this debate has been two years in the making (or longer if people had actually listened to Senator Wyden). And if this debate deserves seriousness, it should at least start with the WSJ not totally misrepresenting the whole thing.

Filed Under: editorial, patriot act, section 215, senate, surveillance, usa freedom act, wsj
Companies: wall street journal