|Anthony Freda Art
June 3, 2015
With the passage of the USA FREEDOM Act, mainstream media outlets and even some “privacy advocates” are hailing the passage of the bill as a welcome step forward and a sign of defeat for the USA PATRIOT Act, the bill that was itself passed in the wake of the 9/11 attacks and widely representative of the United States’ rapid descent into outright police state tyranny.
Unfortunately, however, the passage of the FREEDOM Act is no victory for freedom. In fact, is an insultingly sound nail in freedom’s coffin.
The bill, which has been promoted and supported by many of the same members of Congress that supported the PATRIOT Act (notably, James Sensenbrenner) now comes on the heels of a 2nd US Circuit Court decision that bulk telecommunications data collection was not authorized by the PATRIOT Act, unconstitutional, and therefore an illegal act.
To be sure, the FREEDOM Act has been in the works for passage since 2013 when lawmakers began pushing it. At the time, the bill attempted to actually extend the PATRIOT Act provisions through the end of 2017 as well as maintain a number of violations of civil liberties and privacy concerns.
The new version of the FREEDOM Act is no better, except perhaps in the language being used to promote it.
When the 2nd Circuit Court ruled that the PATRIOT Act did not authorize the bulk collection of data nationwide and that doing so violates the Constitution, it essentially made the actions of the NSA and the rest of the US intelligence apparatus illegal. The FREEDOM Act does nothing to punish or prevent intelligence agencies who have been illegally wiretapping innocent Americans. In fact, it has simply legalized the process. According to Daniel McAdams of the Ron Paul Institute, the bill is able to legalize the storage and collection of bulk data by putting the responsibility upon the back of the major telecommunications companies who will be tasked with doing just that – storing and retaining all data – for future use by intelligence agencies. This data must be turned over to the agencies upon request. It is, essentially, the privatization of mass surveillance.
Daniel McAdams makes four points about how the FREEDOM Act influences the collection of data in the private sphere. He writes,
1) The recent decision of the 2nd U.S. Circuit Court of Appeals that the bulk collection of American citizens' telecommunications information was not authorized by the USA PATRIOT Act means that as of this afternoon, the bulk collection of American citizens' telecommunications information was an illegal act. The government was breaking the law each time it grabbed our metadata. The moment the FREEDOM Act is signed by President Obama that same activity will become legal. How is making an unconstitutional and illegal act into a legal one a benefit to civil liberties?
2) The FREEDOM Act turns private telecommunications companies into agents of state security. They will be required to store our personal information and hand it over to state security organs upon demand. How do we know this development is a step in the wrong direction? It is reportedly the brainchild of Gen. Keith B. Alexander, the NSA director at the time! According to press reports, this was but a public relations move to deflect criticism of the bulk collection program. Alexander "saw the move as a way for Obama to respond to public criticism without losing programs the NSA deemed more essential,"reports Homeland Security News.
3) The FREEDOM Act turns private telecommunications companies into depositories of "pre-crime" data for future use of state security agencies. It is a classic authoritarian move for the state to co-opt and subsume the private sector. Once the FREEDOM Act is signed, Americans' telecommunications information will be retained by the telecommunications companies for the use of state security agencies in potential future investigations. In other words, an individual under no suspicion of any crime and thus deserving full Fourth and Fifth Amendment protection will nevertheless find himself providing evidence against his future self should that person ever fall under suspicion. That is not jurisprudence in a free society.
4) The FREEDOM Act provides liability protection for the telecommunications firms who steal and store our private telecommunications information. In other words, there is not a thing you can do about the theft as long as the thief is a "private" agent of the state.In addition, the bill leaves loopholes in language wide enough you could drive a truck through. For instance, it does not define the term “Direct connection,” which would allow the NSA to access data on Americans through their smartphones via private providers, which would largely be seen as an expansion of NSA power, despite the fact that limits on power have never really been a concern to the NSA before.
While the bill has been presented as the negation of Section 215 of the PATRIOT Act, used by the Bush and Obama administrations to legally justify bulk data collection, the bill merely makes the telecom companies the first level collators of this information, with intelligence agencies able to request data from them at any time based on keywords (presumably like the myriad of publicly admitted words used for surveillance triggers today).
Despite deciding to support the bill, ACLU deputy legal director Jameel Jaffer stated that “This bill would make only incremental improvements, and at least one provision—the material-support provision—would represent a significant step backwards. The disclosures of the last two years make clear that we need wholesale reform.”
Another organization that supported the bill (but “hoped that congress improved it”) was the Center for Democracy and Technology who admitted that the so-called limits to the PATRIOT Act provisions were virtually non-existent. It stated,
The USA FREEDOM Act of 2015 is not as comprehensive as CDT would prefer, and leaves several problems unaddressed. Notably, the bill omits an important provision that was present in the version Sen. Leahy introduced in 2014. The Senate 2014 bill – which CDT supported, but which failed to proceed in the Senate – would have required the government to limit the retention of information about individuals with no connection to a suspect or foreign power. This “enhanced minimization” language would have helped mitigate privacy problems raised by surveillance that is not “bulk collection.” In addition, the new bill’s transparency provisions require scant reporting on surveillance conducted under Sec. 702 of FISA.Even more revealing, however, is an article written by Shane Harris of the Daily Beast in the weeks leading up to the passage of the FREEDOM Act. Harris writes,
Civil libertarians and privacy advocates were applauding yesterday after the House of Representatives overwhelmingly passed legislation to stop the National Security Agency from collecting Americans’ phone records. But they’d best not break out the bubbly.
The really big winner here is the NSA. Over at its headquarters in Fort Meade, Maryland, intelligence officials are high-fiving, because they know things could have turned out much worse.
“What no one wants to say out loud is that this is a big win for the NSA, and a huge nothing burger for the privacy community,” said a former senior intelligence official, one of half a dozen who have spoken to The Daily Beast about the phone records program and efforts to change it.
Here’s the dirty little secret that many spooks are loath to utter publicly, but have been admitting in private for the past two years: The program, which was exposed in documents leaked by Edward Snowden in 2013, is more trouble than it’s worth.
“It’s very expensive and very cumbersome,” the former official said. It requires the agency to maintain huge databases of all Americans’ landline phone calls. But it doesn’t contribute many leads on terrorists. It has helped prevent few—if any—attacks. And it’s nowhere near the biggest contributor of information about terrorism that ends up on the desk of the president and other senior decision makers.
The bill that the House passed yesterday, called the USA Freedom Act, doesn’t actually suspend the phone records program. Rather, it requires that phone companies, not the NSA, hold on to the records.
“Good! Let them take them. I’m tired of holding on to this,” a current senior U.S. official told The Daily Beast. It requires teams of lawyers and auditors to ensure that the NSA is complying with Section 215 of the Patriot Act, which authorizes the program, as well as internal regulations on how the records can and can’t be used, he said. The phone records program has become a political lightning rod, the most controversial of all the classified operations that Snowden exposed. If the NSA can still get access to the records but not have to hold on to them itself, all the better, the senior official said.
“It’s a big win for common sense and for the country,” Joel Brenner, the NSA’s former inspector general, told The Daily Beast. “NSA can get to do what it needs to do with a higher level of scrutiny and a little more trouble, but it can do what needs to do. At same time the government is not going to hold the bulk metadata of the American people.”
“What no one wants to say out loud is that this is a big win for the NSA, and a huge nothing burger for the privacy community.”
“The NSA is coming out of this unscathed,” said the former official. If the USA Freedom Act passes the Senate—which is not a foregone conclusion—it’ll be signed by President Obama and create “a more efficient and comprehensive tool” for the NSA. That’s because under the current regime, only the logs of landline calls are kept. But in the future, the NSA would be able to get cell phone records from the companies, too.
“That’s great,” the former official said. “I think no one thought it was in the realm of the possible before this bill.”
And there’s another irony. Before the Snowden leaks, the NSA was already looking for alternatives to storing huge amounts of phone records in the agency’s computers. And one of the ideas officials considered was asking Congress to require phone companies to hang onto that information for several years. The idea died, though, because NSA leaders thought that Congress would never agree, current and former officials have said.
The Daily Beast even reports that the FREEDOM Act was entirely a creation of Keith Alexander, former Director of the NSA. The article reads that “The USA Freedom Act”—the supposed reining in of the NSA—“was literally born from Alexander,” the former official said.”The picture painted by the Daily Beast and the individuals commenting on the FREEDOM Act is thus one of the typical Problem-Reaction-Solution variety.
But the “gains” that civil libertarians supposedly made in regards to this bill are virtually nonexistent. The Daily Beast can really only find one to mention and even that has nothing to do with the bill itself. It is merely the fact that millions of Americans now know they have been spied on for the last decade. How that is a “win” is anyone’s guess.
Julia Sanchez of the CATO Institute, while trying to paint the bill as a level-headed agreement was also forced to admit that it simply gives the NSA greater flexibility. Harris writes,
“I’d certainly agree it’s not a loss for NSA in any meaningful way. Indeed, there are some respects in which a shift to the carrier-centric model is likely to give them greater flexibility by allowing them to query on data the FISC order doesn’t permit them to collect.” For instance, billing addresses, which the NSA database doesn’t have now, but that the phone companies could, in principle, provide.
The FISC is the Foreign Intelligence Surveillance Court, which has been secretly authorizing the program for years. Under the new law, the NSA would have to get court approval to query the phone records. That adds another layer of oversight to the intelligence operations, but it doesn’t suspend them. And there’s no guarantee it would curtail them, either. The court has repeatedly found that the phone records program is legal. Presumably it’s not going to stop granting NSA’s requests just because the records now sit in an AT&T database instead of one owned by the U.S. government.Consider also Representative Justin Amash’s summary of the FREEDOM Act.
Last week, the U.S. Court of Appeals for the Second Circuit ruled that the bulk telephone metadata program run by the National Security Agency (NSA) is not authorized by Section 215 of the Patriot Act and is 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 that’s scheduled to be considered by the House of Representatives this afternoon, becomes law.
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.
So far, so good.
But 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.
H.R. 2048 does this by authorizing the government to order the production of records based upon a “specific selection term” (i.e., like a search term used in a search engine). The records sought still must be relevant to an investigation, so it’s possible the court’s ruling will continue to restrain the government in some fashion. But it’s more likely a court looking at H.R. 2048’s language will see the “specific selection term” as defining the outer limits of what Congress considers acceptably “relevant” under Section 215.
Indeed, the Second Circuit encouraged Congress in reforming Section 215 to make a “congressional judgment as to what is ‘reasonable’ under current circumstances.”
Unfortunately, “specific selection term” is defined so broadly under the bill as to have little effect on narrowing the scope of items the government may obtain through a 215 order.
A “specific selection term” may 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. Only a politician or bureaucrat wouldn’t call that “bulk.”
H.R. 2048 gives our intelligence agencies, for the first time, statutory authority to collect Americans’ data in bulk. In light of the Second Circuit’s opinion that the NSA has been collecting our information in bulk without statutory authority for all this time, it would be a devastating misstep for Congress to pass a bill that codifies that bulk collection and likely ensures no future court will ever again be positioned to rule against the government for over-collecting on statutory grounds.
H.R. 2048 falls woefully short of reining in the mass collection of Americans’ data, and it takes us a step in the wrong direction by specifically authorizing such collection in violation of the Fourth Amendment to the Constitution. Americans, and members of Congress, should demand that Congress instead pass the original, bipartisan version of the USA FREEDOM Act from 2013, which strengthened—not weakened—Section 215’s relevance standard to end bulk collection, while still allowing the government the flexibility it needs to pursue genuine threats against the United States.Taken in concert with the fact that the US Court of Appeals for the 11th Circuit has ruled that Americans have no perception of privacy when it comes to records being held by a third party, one can easily see why the NSA would be high-fiving in the break room of their massive data center.
Of course, if Congress was interested in reigning in the massive dragnet of data being taken illegally by the NSA, they would have simply allowed the expiring sections of the PATRIOT Act to do just that – expire. This would have been the most simple and common sense action to take since the PATRIOT Act section 215 is itself unconstitutional. Instead, the American people are subjected to the FREEDOM Act, written by the NSA FOR the NSA and all the propaganda of civil liberties victories and “weakness in the face of terror” that comes with it.
Yet the unfortunate truth is that, even if the FREEDOM Act was never passed and relevant sections of the PATRIOT Act were allowed to expire, the power of the NSA would scarcely be diminished. Illegal government spying has taken place with every new advent of technology and communications since even long before 9/11. With the knowledge that programs such as Sentient World Simulation is in existence as well as the ability to record and store all the information on one individual for less than the cost of a mobile home, Americans would be naïve to think that a change on paper would change the surveillance state in which they live. While this is not to downplay the importance of codifying privacy and upholding the Bill of Rights legally and on paper, it is clear that it will take more than Congress to get it done.
Regardless, the FREEDOM Act is anything but freedom much like the PATRIOT Act was anything but patriotic. The FREEDOM Act is merely another nail in the coffin of civil liberties and a comical funeral procession over the corpse of privacy.
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