May 16, 2015
This week House leader John Boehner corralled his party and scooped a majority of Democrats in an effort to give the illusion Congress is reigning in the National Security Agency (NSA) by passing HR 2048, the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015 aka USA Freedom Act. The legislation claims to inaugurate strong reforms in the intelligence sector by restraining the NSA’s ability to collect cell phone metadata from Americans. The 338-88 vote illustrates Congressional lawmakers, who are closest to their representatives, may have heard but did not heed the concerns of the voters regarding the continued erosion of civil liberties and an overly aggressive government that believes intrusive surveillance is necessary to keep the homeland safe.
Even though the White House indicated it backs the House bill, it faces many challenges in the Senate. The current NSA/Patriot Act law is set to expire in two weeks on June 1. A White House statement issued on Tuesday supported the USA Freedom Act. Brand new Attorney General Loretta Lynch and Director of National Intelligence James R. Clapper both sent letters to congressional leaders saying it was “a reasonable compromise that preserves vital national security authorities, enhances privacy and civil liberties and codifies requirements for increased transparency.”
Senate majority leader Mitch McConnell (R-KY) has already introduced a bill that would extend the controversial Patriot Act, including the Section 215 -metadata collection – for another 5 ½ years without any constraints.
The legislator who penned the new bill as well as the original Patriot Act, Rep. Jim Sensenbrenner (R-Wis.) explained, “I’m not ignorant to the threats we face, but a clean reauthorization would be irresponsible. Congress never intended Section 215 to allow bulk collection. That program is illegal and based on a blatant misinterpretation of the law.”
Changes to the existing law would require the NSA to obtain a court order before collecting data on cell phones for a special selection term (defined search) as well as include more transparency for public consumption.
However, privacy minded groups like the American Civil Liberties Union (ACLU) will not support the new legislation because it does not go far enough to protect civil rights and only offers incremental enhancements. McConnell argued the opposite point on the Senate floor last week and said, “Section 215 helped us find the needle in a haystack, but under the USA Freedom Act, there may not be a haystack to look through at all.” Perhaps nagging the majority leader’s conscious was a classified briefing from the Intelligence community that took place in the Capitol basement.
However, as the week wore on House Speaker John Boehner (R-Ohio) refused to answer any questions concerning the significant differences between the House and Senate leader’s legislation. “I’m not going to speculate (sic) what the Senate will or will not do. All I know is that these programs expire at the end of this month. They are critically important to keep Americans safe.”
But if the two chambers fail to agree to settle their differences in a conference committee, McConnell suggested he might move for a short-term deal that would buy the newly installed majority leader time to whip up votes to move his status quo Patriot Act through 2019. “The nation is better off with an extension of the Patriot Act than not,” McConnell said in a speech on Sunday. He reiterated his support for Section 215 as “an important tool to prevent the next terrorist attack.”
Another route the Senate may choose is to bring forward alternative legislation co-sponsored by liberal Senator Patrick Leahy (D-Vermont) and conservative Senator Mike Lee (R-Utah) that has strong bipartisan support. Early voting tallies show that McConnell does not have 60 votes required to overcome a filibuster that current Senator and GOP Presidential candidate Rand Paul threatens to impose.
Co-author Lee said, “This is a compromise, an important compromise that will enable us to protect Americans’ privacy while giving the government the tools it needs to keep us safe. It is a bill, I think, we should take up and pass as soon as they have voted.”
Or, the Senate leader could simply opt to let the legislation expire, however this option is more of a “when hell freezes over option” for establishment Republicans.
How USA Freedom Act came to be
Congressman Justin Amash (R-Michigan), who tried, but came up a few votes shy in 2013 to curtail the Patriot Act, remarked that last week’s Second Circuit U.S. Court of Appeals decision ruling the bulk telephone metadata program currently in place at the NSA was not authorized by Section 215 of the Patriot Act and was thus unlawful. “The ruling is a big win for privacy and civil liberties advocates who have long argued that Section 215 clearly does not contemplate the type of mass collection we now know is occurring. But the win will be short-lived if H.R. 2048, the latest version of the USA FREEDOM Act becomes law.”
He explained that “Section 215 authorizes the government to collect records and other ‘tangible things’ that are ‘relevant’ to a terrorism or foreign intelligence investigation. To support the bulk collection of data pertaining to millions of law-abiding Americans, the government has effectively claimed that all records everywhere are potentially relevant to a current or future investigation, and thus all records are fair game for collection. In its ruling, the Second Circuit had little choice but to reject the government’s broad interpretation of ‘relevant,’ given that the rest of the statute gives no indication Congress ever contemplated collection on such a mass scale.”
As much as Amash agreed with the Court’s ruling, the bill that eventually passed the House this week did so without the Congressman’s vote. “H.R. 2048 threatens to undo much of the progress resulting from the Second Circuit’s opinion. The bill’s sponsors, and unfortunately some outside advocacy groups, wrongly claim that H.R. 2048 ends ‘bulk’ collection. It’s true that the bill ends the phone dragnet as we currently know it—by having the phone companies themselves hold, search, and analyze certain data at the request of the government, which is worse in many ways given the broader set of data the companies hold—but H.R. 2048 actually expands the statutory basis for the large-scale collection of most data.”
Consequently, authors of the new national security legislation put the onus on the government to produce a more “specific selection term,” that civil liberty minded groups say leaves the door open to a “broad” interpretation and therefore it gives the intelligence community way too much leeway.
Amash explained how broadly “specific selection term” could be defined. It could “be a specific person (including a corporation, such as Western Union), account, address, or personal device, but it also may be “any other specific identifier,” and the bill expressly contemplates using geographic regions or communication service providers (such as Verizon) to define the records sought, so long as it’s not the only identifier used as part of the specific selection term. In other words, the bill doesn’t let the government require Verizon to turn over all its records without limitation, but nothing appears to prevent the government from requiring Verizon to turn over all its records for all its customers in the state of New York.”
The lawmaker further stated that the new bill “falls woefully” short of his “USA Freedom Act of 2013” guidelines. He complained that the new bill would only legalize the government’s unconstitutional actions to collect information without warrants that are protected by the Fourth Amendment (unreasonable search and seizure).
Unfortunately only 88 lawmakers voted no on the USA Freedom Act, while the remaining 338 legislators voted to pass the bill and send it to the Senate. It should also be noted that many of the no votes were cast because the bill didn’t go far enough to end bulk metadata collection.
It’s no slam-dunk in the Senate
The Senate is supposed to be the more deliberative chamber of the Congress, but majority leader McConnell has stated his intention to pass a clean bill, without amendments, to keep the controversial Section 215 on the books until 2019.
But the likelihood of that happening grew more unlikely when the junior Senator from Kentucky, Rand Paul, announced he would reprise his role as spoiler. For those who don’t remember Paul, he stood in the Senate well for 13 hours filibustering his objections to President Obama’s drone strikes that kill US citizens.
“I’m going to lead the charge in the next couple of weeks as the Patriot Act comes forward,” Paul told the a New Hampshire newspaper. “We will be filibustering. We will be trying to stop it. We are not going to let them run over us.”
This time Paul will have company. Democrat Senator Ron Wyden told MSNBC, “If they come back with that effort to basically extend this for a short term without major reforms like ending the collection of phone records, I do intend to filibuster.” A spokesperson for Wyden cited growing bipartisan support to make serious changes to Section 215 guidelines. It’s “clear there is a growing bipartisan coalition to stand up to any reauthorization of Patriot Act Section 215 that does not end bulk collection and make major reforms.”
What other surveillance devices do governments use?
Last year journalists uncovered a new favorite tool law enforcement depends on to target bad guys (and thousands of non-bad guys). Unfortunately hundreds of agencies opted to use the military/CIA-designed Stingray device.
The device acts as a fake cell phone tower, diverting thousands of smart phone users to a specially designed electronic box that collaterally collects metadata from Americans without a warrant. Looking to brunt the use of the terrorist-hunting surveillance was the governor of Washington, Jay Inslee. The governor signed a bill into law that required state and local officials to obtain a warrant from a judge before using the device.
The bill further stipulated that law enforcement must clearly state probable cause and that information will lead to evidence of unlawful activity. Also any information gathered from the Stingray box from non-targets must be “discarded” immediately.
Washington joins three other states, Minnesota, Virginia, and Utah that have placed similar limits on Stingray devices.
Earlier this month, Santa Clara County gave up its bid to purchase a Stingray from the manufacturer, The Harris Corporation. A May 5, 2015 memo from the County of Santa Clara Office of the County Executive elucidated, “After lengthy negotiations regarding contract terms, including business and legal issues, the County and Harris have been unable to reach agreement on a contract for the purchase of the System. Accordingly, the System will not be purchased at this time.” Also arguments over a non-disclosure agreement would have prevented Santa Clara County from divulging any information about the device, making the County unaccountable for any Freedom of Information Act or California Public Records Act requests.
The memo also described an “overarching County effort related to the development of policies concerning surveillance technology will continue.”
ACLU director of technology and civil liberties policy in California, Nicole Ozer said “We are also very pleased that Santa Clara County is taking a close look at all of its surveillance technologies. Today’s Santa Clara County Finance and Government Operations Committee hearing at 2:00 will include a study session on public surveillance technology in the county and explore potential privacy issues. Santa Clara is one of several counties in California moving forward to pass policies to ensure proper transparency, accountability, and oversight for all surveillance technologies.”
Most Americans trust the government when it comes to law enforcement officials, but new evidence uncovered this week illustrates that government agencies are subject to overreach.
A Guardian report revealed that the Federal Bureau of Investigations (FBI) was using intrusive surveillance activities to monitor Keystone XL Pipeline critics. Between November 2012 and June 2014, the documents show, the FBI collected inside knowledge about forthcoming protests, documented the identities of individuals photographing oil-related infrastructure, scrutinized police intelligence and cultivated at least one informant. At one point, the FBI’s Houston office said it would share with TransCanada ‘any pertinent intelligence regarding any threats’ to the company in advance of a forthcoming protest.”
The report alleges that the Houston FBI branch skirted regulations requiring the agency to seek approval from the in-house Special Agent in Charge as well as the chief division counsel. In turn, those officials are supposed to weigh the threats verses consequences and the “adverse impact on civil liberties and public confidence” if the inquiry is publicly revealed.
“The documents connect the investigation into anti-Keystone activists to other ‘domestic terrorism issues’ in the agency and show there was some liaison with the local FBI ‘assistant weapons of mass destruction coordinator.’” Mike German, a former FBI agent and now a fellow at the Brennan Center for Justice in New York, told the Guardian, “the documents also raised questions over collusion between law enforcement and TransCanada. It is clearly troubling that these documents suggest the FBI interprets its national security mandate as protecting private industry from political criticism.”
For civil libertarians, there is some hope that the Patriot Act could see its demise, as Congress deliberates the Surveillance State Repeal Act, H.R. 1466, that would repeal the USA Patriot Act and the FISA Amendments Act of 2008. As Congressional consideration turns to H.R. 1466, the “takeaways” are that several US Circuit courts have consistently ruled that bulk metadata collection is unconstitutional and further violates our constitutional rights against unreasonable search and seizure; the government’s own studies show that despite the tens of billions spent per year on data collection, the massive government surveillance programs have been ineffective against terrorism; and lastly, while most Americans have nothing to hide from surveillance, it has a “chilling effect” on the ability of the press to do its job as the Fourth Estate or constitutional “watchdog” by penetrating secrecy to keep the public informed of government actions.
Meanwhile, stranded somewhere in Russia, US whistleblower Edward Snowden must feel some degree of satisfaction that the public debate over government surveillance he believed was necessary may have gained a toehold.
More about Stingray articles: “Stingrays Surveillance & Fusion Center blur state and federal law”
© Copyright 2015 Kimberly Dvorak All Rights Reserved.