Senate May Try To Sneak A Clean Reauth Of Surveillance Powers Into A Must-Pass Coronovirus Bill

from the conspiracy-theorists-v.-surveillance-apologists dept

The USA Freedom Act is up for renewal, bringing with it the usual arguments for preserving the surveillance status quo. But this administration is a little bit different. President Trump remains convinced a Deep State conspiracy exists that is actively trying to unseat him. The FBI added some fuel to the conspiratorial fire by intentionally misleading the FISA court during its investigation of former Trump adviser, Carter Page. The FBI's omission of evidence it had indicating Page wasn't acting as an agent of a foreign power allowed it to continue its surveillance without legal justification.

This has made Trump wary of writing a blank surveillance check. Pervasive surveillance is fine, as long as it doesn't target Trump or his staff. But Trump also firmly believes in sacrificing rights and freedoms on the altar of national security, so there's a new tension on display here.

Attorney General Bill Barr is telling Republicans to listen to Barr's heart and just shove this thing through, no matter what Trump's personal preferences might be.

Attorney General William Barr urged Senate Republicans on Tuesday to renew expiring provisions of a controversial surveillance law that has come under fire from President Donald Trump after its use in investigations into Russian interference in the 2016 election.

And it appears senators are listening… or at least their frontmouth is. Senate Majority Leader Mitch McConnell says it's too important to let expire, much less discuss.

“These tools have been overwhelmingly useful, according to our intelligence advisers, and I hope that when the Senate deals with these expiring provisions in a couple weeks, we’ll be able to continue to have them in law, which will of course provide maximum protection for the American people,” McConnell said.

Maybe some of the tools have been "overwhelmingly useful." But one definitely hasn't. The remodeled Section 215 program -- operating under alterations codified with the USA Freedom Act -- has been a bust. When the NSA wasn't overcollecting records (despite having to request them from telcos specifically and directly), it wasn't doing anything useful with the records it did have. The five years under the USA Freedom Act produced a total of two leads, of which only one led to an actual investigation.

Other Republicans seem willing to push the re-up through with little discussion, promising to fix it in post. Senator Lindsey Graham wants to reauthorize it completely, despite being concerned about the issues raised in the Inspector General's report. Procrastinating on fixing problems first observed more than two decades ago is a pretty lazy take from a party that claims intelligence agencies illegally targeted their president.

A few Republicans are leaning the other way, though, suggesting some more reform of surveillance programs could be on the way.

Rep. Jim Jordan and Sen. Rand Paul have both signaled a desire for some type of reform, with Paul tweeting that he “spoke with Trump,” and that the FISA Court — the secret court which approves certain types of surveillance requests from the intelligence community — should be “forbidden from ever spying on or investigating Americans.”

That's a nice thought, but there's no way the FBI (or DOJ, or any of the other fifteen Intelligence Community components) will agree to stop spying on or investigating Americans. The NSA collections are their goldmine of domestic data/communications that can be searched through handy backdoors marked "foreign surveillance only." Cutting them out of this surreptitious intel supply just isn't going to fly, no matter how many legislators back this curtailment of their surveillance powers.

More tension. With the Coronavirus almost literally hanging over the proceedings, there's a chance a clear reauthorization will be tacked onto legislation addressing this issue to ensure it passes without amendments to the USA Freedom Act or the IC's surveillance powers.

The Trump administration’s request for $2.5 billion to mitigate the coronavirus pandemic is likely to become an unstoppable legislative vehicle — as must-pass legislation that congressional leaders of both parties could use to ram through a reauthorization of the FBI’s call detail records program. Such a move would sidestep the House’s reform effort and instead push through a clean reauthorization of the program.

The Senate, said a Democrat on the House Judiciary Committee, is “threatening to put that clean reauthorization into something like coronavirus funding which would make it impossible to defeat if we don’t come up with a bill here. Pelosi and Schiff will never allow it to expire.”

Some Republican senators want to do some editing of the reauth, mainly for political reasons. Others want zero discussion on the reauthorization and likely would do exactly this to bypass surveillance opponents. It all depends on who gets there first and how much they can add to the Trojan bill before it lands on the president's desk. Given the urgent need to pass a bill to address the spread of the virus, those wanting zero discussion will probably prevail and it will be five more years of business as usual before the next conversation about surveillance programs and powers.

The good news is there seems to be enough people on both sides of the aisle who want to see some reforms enacted so this may end up being one of those rare "must-pass" bills that doesn't have a lot of self-serving garbage attached. We won't know until it's all hashed out, but this is already an anomaly: a bi-partisan agreement that surveillance powers are being abused and some actual oversight should be done by the surveillance state's overseers.

Filed Under: congress, coronavirus, covid19, fbi, mass surveillance, mitch mcconnell, nsa, section 215, surveillance, usa freedom, william barr

NSA Releases Latest Bulk Records Renewal Order On Same Day It Scores Win In DC Circuit Court Of Appeals

from the also:-normal-Friday-afternoon-document-dump dept

The FISA Court has approved another three-month extension of the NSA's phone metadata collection, allowing the agency to run out the clock on the USA Freedom Act-triggered "transition period" with no additional stipulations attached. The transition will apparently be "business as usual" right up to the expiration date (Nov. 29, 2015), at which point everything will suddenly be compliant with the new law.

Until that date, the NSA will still collect (and store) phone metadata in bulk. The only limitation in place at this point dates back to February 2014 -- when searches of the data haul were limited to court-approved "selectors" backed by reasonable, articulable suspicion.

The joint statement issued by the Office of the Director of National Intelligence (ODNI) and the DOJ discusses the impact of the USA Freedom Act extensively but makes no mention of court decisions or legal challenges possibly affecting the current collection of phone records in bulk. The FISA court order does mention ongoing lawsuits with implications on the collection as implemented, but simply orders the government to inform it of any changes it may need to make to the renewal order if a decision alters the bulk collection playing field.

The case that most threatened the current bulk collection was conveniently eliminated by the DC appeals court with oddly coincidental timing.

The appeals court decision was published on August 28th. On August 27th, the previous bulk records order expired. The new order commenced on the same day as the publication of the DC court's opinion -- which eliminated the possiblity of an injunction. This occurred nearly 9-1/2 months after arguments were heard from the court (Nov. 14, 2014) more than 18 months after the case was appealed. Synergistically, the court decided to file and publish its decision in favor of uninterrupted bulk collection the same day the NSA's renewal order kicked in.

This suggests the NSA leaned on the administration and the administration leaned on the court. I wouldn't go so far as to suggest the administration influenced the opinion, but it would seem to have been instrumental in the timing of the decision's release.

Filed Under: bulk records, fisa court, fisc, mass surveillance, nsa, patriot act, phone records, renewal, surveillance, usa freedom

FISA Court Tackles Section 215 Mess, Public Advocates In New Opinion

from the bulk-collection-paused? dept

The FISA Court has released its opinion on the interim Section 215 collection activities. The government argued that it was owed six months of uninterrupted, plain vanilla Patriot Act collections, as provided for in the USA Freedom Act. While the new law significantly alters the NSA's collection methods, it was given 180 days to transition to an off-site "collection," housed by telcos and responsive only to targeted searches.

But a few points were still unclear. First, Section 215 did actually expire on May 31st. Only the passage of the USA Freedom Act prevented it from going completely dead, and even so, it's no longer a bulk collection. Second, the Second Circuit Court found the collection was illegal under current law. This finding has very limited jurisdiction, of course, and the appeals court has no control over the FISA Court. The FISC can consider this opinion (and it has), but the question of the legality of this bulk collection is still mostly unsettled.

Third, the USA Freedom Act provides for the appointment of five people to argue on behalf of the public and potential surveillance targets. The new order tackles this new stipulation… sort of. First of all, however, the FISA Court has the unenviable task of sorting out the numerous conflicts caused by the sunset of Section 215, and its almost immediate sunrise in mutated form, thanks to the provisions of the passed-at-the-last-minute USA Freedom Act.

Julian Sanchez at Just Security points out the FISC had a couple of options when interpreting the new law, the old law and various other legal questions.

Since reading USA Freedom as amending the post-sunset law would result in legal gibberish, in other words, the FISC reads the law as doing what Congress very obviously intended for it to do, not what a hyper-literal evil genie might read it as doing.

The opinion appears to authorize old-school Section 215 bulk collecting during the 180-day winddown. [As pointed out by Julian Sanchez, the opinion "pointedly" does not authorize this. What it does is provide for the collection as amended by the USA Freedom Act, which obviously isn't the same thing, and isn't how the government has interpreted the 180-day transition period.) What's more interesting is the order's discussion of the brand new advocates that will finally bring an adversarial presence to the court. Sanchez notes the FISC could have simply ignored this stipulation until after the 6-month temporary reauthorization was completed and USA Freedom's version of Section 215 kicked in. But it didn't. However, that doesn't exactly mean it's welcoming the additional arguments and scrutiny. In this opinion, the FISC rubberstamps itself.

First, it understatedly notes that things are all kinds of screwed up at the moment.

Although the statutory framework is somewhat tangled, the choice before the court is actually very clear and stark: as described below, it can apply well-established principles of statutory construction and interpret the USA FREEDOM Act in a manner that gives meaning to all of its provisions, or it can ignore those principles and conclude that Congress passed an irrational statute with multiple superfluous parts.

Having issued its mildly derogatory assessment of Schrödinger's Bulk Collection, the FISA Court moves on to declare that, despite the multiple legal entanglements and legislative changes, this particular request is so straightforward -- and its precedent sufficiently clear -- there's no need to ask a second opinion.

Under the circumstances, it does not appear that the assistance of an amicus curiae would materially assist the court in making that decision. The court therefore finds that it is "not appropriate" to appoint an amicus curiae in this matter, within the meaning of 50 U.S.C. §1803(i)(2)(A).

This would, of course, be the statute cited by the Second Circuit Court as not allowing for the bulk collection of records, but whatever. In this particular case, the FISA Court's assessment is likely correct. If it's expected to see this tangled mess the way legislators intended, rather than as a "hyper-literal evil genie," the government is free to collect bulk records for the next six months while transitioning to the new process. Anyone arguing on behalf of the public will just have to wait until the USA Freedom version goes into effect and attack any deficiencies then. As for the appeals court decision, it has very little bearing now that the Section 215 program is on the way to retirement. The passage of USA Freedom now provides for the legal authority needed to continue this collection, which will no longer be in bulk and much more likely to adhere to the Section 1803 provisions.

Sanchez points out an interesting omission -- if it is an omission -- that possibly indicates the government won't even be performing its long-running bulk collection for the next six months. As he notes, no additional order authorizing normal bulk collection has been issued. In the wake of the Snowden leaks, the FISA Court has been pretty punctual with the public release of authorization orders, but there's no order attached to this opinion.

Because the FISC has declined to take the 180-day escape hatch, and because they cannot plausibly invoke the “no brainer” exception, the court does intend to appoint an amicus to brief the question of whether bulk collection can continue during the six month transition window. Since it will take time to find an appropriate party, and there’s no indication of any further bulk order being issued as yet, it seems reasonable to infer that, at present, the bulk program remains suspended. Alternatively, the FISC may have issued a temporary order authorizing resumption of bulk collection for some quite short period, without an opinion, while it looks for an amicus and takes time to consider their arguments.   If they had in fact already issued an opinion and order reauthorizing bulk collection, after all, it would be quite strange to have issued a memorandum opinion dealing only with this narrow question, rather than bundling them all together.

If so, this would be the first time since 2009 that the bulk collection has been suspended for any length of time, which is significant on its own.

Filed Under: amicus, bulk collection, doj, fisa, fisa court, fisc, patriot act, public advocate, reform, usa freedom

After Claiming USA Freedom Would Be A Boon To ISIS, Ex-NSA Director Now Mocks How Weak USA Freedom Is

from the funny-how-that-works dept

We've written enough about former NSA and CIA director Michael Hayden that you should already know to take what he says with a large grain of salt. He will say basically anything to further his argument, no matter how false or disingenuous. He doesn't appear to care. He's admitted that September 11th gave him permission to reinterpret the 4th Amendment. He's claimed that terrorist attacks that weren't prevented were proof for why the NSA should keep collecting metadata. He lied about whether he and others lied about the CIA's torture program. He claimed that the release of the Senate Intelligence Committee's exec summary of the CIA torture report would be the tipping point for terrorists attacking us (how'd that work out?). He's argued that no one who thinks Ed Snowden is a whistleblower should be allowed to work in government. He claimed that Senator Feinstein was too emotional about the CIA torture program to judge it effectively. And on and on and on.

And then there's this. Last fall, we wrote about a WSJ op-ed that Hayden co-wrote with former Attorney General Mike Mukasey, completely ripping apart the USA Freedom Act. The headline was:

NSA Reform That Only ISIS Could Love

It claimed that the USA Freedom Act would "hobble the gathering of electronic intelligence" and predicted gloom and doom as a result:

For starters, the bill ends the National Security Agency’s bulk collection of what is called telephone metadata. This includes the date, time, duration and telephone numbers for all calls, but not their content or the identity of the caller or called, and is information already held by telephone companies. The bill would substitute a cumbersome and untried process that would require the NSA, when it seeks to check on which telephone numbers have called or been called by a number reasonably associated with terrorist activity, to obtain a warrant from the Foreign Intelligence Surveillance Court, or FISA court, and then scurry to each of the nation’s telephone-service providers to comb through the information that remains in their hands rather than in the NSA’s.

Nothing in the bill requires the telephone companies to preserve the metadata for any prescribed period. Current Federal Communications Commission regulations impose an 18-month retention requirement, but administrative regulations are subject to change. It isn’t hard to envision companies that wish to offer subscribers the attraction of rapid destruction of these records, or a complaisant bureaucracy that lets them do it.

The bill’s imposition of the warrant requirement on the NSA would be more burdensome than what any assistant U.S. attorney must do to get metadata in a routine criminal case, which is simply to aver that the information is needed in connection with a criminal investigation—period.

He points to the rise of ISIS and says that "the last thing" that Congress should be doing is pushing "a major new bill exquisitely crafted to hobble the gathering of electronic intelligence."

Of course, we all know that was hogwash, but as if to underline that point, let's see what the very same Michael Hayden has to say after the USA Freedom Act passed and became law. Now, all of a sudden, he thinks the bill is so weak that it's an opportunity to mock privacy advocates because this was "all" that they could get:

If somebody would come up to me and say “Look, Hayden, here’s the thing: This Snowden thing is going to be a nightmare for you guys for about two years. And when we get all done with it, what you’re going to be required to do is that little 215 program about American telephony metadata — and by the way, you can still have access to it, but you got to go to the court and get access to it from the companies, rather than keep it to yourself” — I go: “And this is it after two years? Cool!”

He's actually right about that second point -- which is why we've been saying repeatedly that USA Freedom needs to only be a starting point for real reform. However, given that Hayden's position on the bill flipped entirely within a period of eight months, it should emphasize that whenever you see Hayden fearmongering, it's bullshit. He's just doing that as a cynical political ploy to help the surveillance state get or keep its surveillance powers.

Filed Under: cia, ed snowden, metadata, michael hayden, nsa, privacy, section 215, surveillance, usa freedom

FISA Court Asked To Shut Down Bulk Collection Of Phone Records During Transition To USA Freedom Act

from the this-will-certainly-expedite-the-transition dept

Lawyer Ken Cuccinelli -- who's representing Rand Paul in his lawsuit against the government for its domestic surveillance programs -- has filed a motion in opposition of the resumption of the Section 215 program with the FISA Court. While Section 215 officially expired on May 31st, it lives on in altered form after the passage of the USA Freedom Act, which ends the collection of metadata and forces the government to approach telcos with targeted requests for data.

But the NSA and FBI don't need to cease their bulk collection immediately. The passed Act provides a six-month window for the agencies to wind down current collections and prepare for the move to a more limited collection method. This is what Cuccinelli and FreedomWorks are arguing against. Despite the expiration, the USA Freedom Act's new limitations, and the Second Circuit Court finding the collection itself unauthorized by existing law, the collection is still ongoing and will be running unaltered for 180 days. Cuccinelli says the FISA Court should halt this collection immediately based on two legal conclusions.

Movants' first argument is that Respondents' metadata collection is beyond the scope of what Congress authorized in Section 215 and this Court should deny Respondents' filed or imminent request to renew/re-institute such metadata collection. ACLU v. Clapper, 2015 U.S. App. LEXIS 7531.

Movants' second argument is that Respondents' metadata collection, as well as the storing and searching of such metadata, violates the Fourth Amendment.

Most of the filing details these two legal arguments, with the most interesting passages dismantling the government's reliance on 1979's Smith v. Maryland decision -- something that dealt with the targeted acquisition of a suspected criminal's phone records via a pen register/trap and trace order, which is vastly dissimilar to the collection of everyone's data first, and then working backwards to locate suspects.

First, while Movants do not dispute the importance of identifying terrorist operatives and preventing terrorist attacks, such an interest does not justify a secret blanket warrantless search of all telephone metadata from all (or substantially all) American citizens. The Edmond Court noted ''the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terorist attack." 531 U.S. at 44 (emphasis supplied).

The word "imminent" is critical. Its primary definition is "an event, esp. danger or disaster: impending, soon to happen." 1 SHORTER OXFORD ENGLISH DICTIONARY 1323 (5th ed. 2002) (emphasis supplied). That is, in such a scenario the Government would already have compelling evidence showing a particular terrorist attack is likely to happen in the near future (as opposed to a general concern that ''terrorists are looking to strike the United States")-the existing evidence obtained through proper methods would be the basis for claiming the "special need."

But in this case, the Government is attempting to invert the process-the Government has no evidence and instead seeks to cull through massive amounts of data attempting to ferret out terrorism. Thus, the alleged "special need" is the Government's desire to seek evidence, which may or may not exist, regarding unknown hypothetical terrorist attacks. The "nature and immediacy" of the Government's concerns do not justify the metadata collection because it is not based on thwarting an "imminent" attack.

The motion goes on to point out that while the government continues to claim it "needs" this program to thwart terrorism, it has offered up no evidence showing the bulk collection's ability to do so. To that end, Cuccinelli respectfully asks the court to kill Section 215 dead.

For all the foregoing reasons, the Court should deny the Government's request to reinstitute/renew metadata collection. Furthermore, the Court should declare that the metadata collection is beyond the scope of Section 215 and violated the Fourth Amendment; enjoin Respondents from conducting or operating the metadata collection; order Respondents to destroy any and all telephone metadata that has been seized, stored, retained, and/or searched, regardless where held or by whom (excepting such data as Respondents can show reasonable cause to be related to an authorized investigation); award Movants' fees and costs pursuant to 28 U.S.C. 2412; and such other and further relief as the Court deems just and proper.

The FISA Court has ordered the government to respond to the motion, and it's not being given much time to do so.

Any response by the Government to the motion shall be submitted no later than June 12, 2015. Such response shall be limited to the merits of whether the bulk acquisition of noncontent call-detail records is lawful under Title V of the Foreign Intelligence Surveillance Act (FISA), as amended by the USA FREEDOM Act of 2015, Public Law No. 114-23, and consistent with the Fourth Amendment to the Constitution, and shall not address any issues regarding whether the Movants have standing under FISA or Article III of the Constitution to seek the relief requested by the motion.

The government may not be used to working so quickly, but it certainly seems to be able to kick it into a higher gear when it serves its purposes. The Section 215 program was stalled for all of about 48 hours before the administration placed it back online with the signing of the USA Freedom Act, as can be discerned from this part of the FISA Court's order.

The Government shall immediately serve on the Movants a copy of its unclassified "Memorandum of Law," captioned "In Re Application of the Federal Bureau of lnvestigation for an Order Requiring the Production of Tangible Things" and filed with this Court on the night of June 2, 2015, and submit to the Court a certificate of such service.

The government's response should be interesting, considering the ongoing legal challenges to its surveillance programs, especially since it won't be allowed to spend several pages arguing why the movants shouldn't even be allowed to challenge bulk collections. This challenge may also prompt a faster transition period, especially if the involved agencies face the prospect of 180 days "in the dark."

Filed Under: bulk collection, doj, ken cuccinelli, nsa, patriot act, section 215, surveillance, usa freedom
Companies: freedomworks

Can Senator Leahy Actually Get Anything Done To Help With Civil Liberties And Innovation?

from the weakest-'powerful'-senator dept

Senator Patrick Leahy is often considered one of the most powerful Senators. He's the most senior Senator, third in the presidential line of succession (after the VP and the Speaker of the House) and the head of the powerful Senate Judiciary Committee. He's often presented as a "friend" to both the technology and civil liberties communities -- even though many in both of those communities still view him skeptically for his all out support for dangerous copyright legislation in the PROTECT IP Act (PIPA), which would have seriously messed with the underlying DNS structure of the internet. Even so, on a variety of other issues, including NSA reform, ECPA reform and patent reform, he's often been seen as leading the charge.

But over and over again, it seems that charge is... to go nowhere.

Politico has a story about how last week was a disaster for the tech industry in Washington DC. For all the talk about how Silicon Valley has been flexing its lobbying power, patent reform was killed, a good NSA reform bill was replaced with a bad one (leading the tech industry to pull its support) and the fight for immigration reform went the way it normally does -- nowhere beyond people yelling at each other.

But what I found even more interesting is just how powerless the "powerful" Senator seems to be on so many of these issues. Leahy has been the leading Senate voice for ECPA reform (requiring a warrant to search your electronic data) for years -- and it has pretty widespread support. And yet, he's unable to get it to move forward because the the SEC and IRS want to be able to read emails without a warrant. Really?

Similarly, for over a decade, Leahy has been the point person on patent reform in the Senate, promising to finally reform the system to stop abusive patents. The bill he finally got through in 2011 did absolutely nothing after it was watered down and watered down and watered down some more. And this year, when it looked like there might finally be a bill with at least a little (not nearly enough) progress towards stifling abusive patent practices, he got completely shut down by the trial lawyers and Harry Reid.

And, now we're basically relying on Senator Leahy to fix the NSA reform package. He introduced the companion to the USA Freedom Act in the Senate, and many in the tech and civil liberties communities are hopeful that Leahy will stand firm in actually reforming the NSA. And while he's been saying all the right things about reforming the NSA, given his track record, you have to start to wonder: can this super powerful Senator actually get this done right?

Yes, getting anything done in Congress is a pretty difficult process these days (perhaps for good reason). But we keep hearing about how Senator Leahy is so powerful and such a friend to innovation and civil liberties. But over the past few years, it's been a lot of tough talk, and nothing ever seems to actually get done. It really begins to make you wonder if he's such a "friend" to these communities after all.

Filed Under: civil liberties, ecpa, ecpa reform, patent reform, patents, patrick leahy, politics, senate judiciary committee, usa freedom

As Expected, USA Freedom Act Aims To Stop Worst NSA Abuses

from the a-step-in-the-right-direction dept

As was expected, a new bill to curb the NSA's excesses was introduced in both houses of Congress this morning, with very strong backing in both houses and on both sides of the aisle (in terms of having both powerful sponsors, and lots and lots of co-sponsors). The bill is not perfect, and it is not the final answer to all the NSA's activities, but it's a big step in the right direction -- stopping dragnet surveillance, reforming the way the FISA court works and adding some more transparency (we described many of the details in our post last week, and the bill matches what was expected). It has a decent chance of passing, but getting anything through Congress can be a chore these days. We'll be following what happens with this bill closely. You can see the full bill below or the quick two pager describing the details.

Filed Under: bulk collection, dragnet collection, fisa, fisa court, fisc, james sensensbrenner, nsa, nsa surveillance, pat leahy, usa freedom