Tuesday, May 12, 2015

203.6 - TRAITOR Act provisions up for renewal

TRAITOR Act provisions up for renewal

Three provisions of the grossly misnamed "PATRIOT" Act - which would better have been called the "TRAITOR" Act, and which is what I will call it here for its attack on privacy and civil liberties - are set to expire on June 1.

When the Traitor Act was passed, it was in an atmosphere of unreasoning panic in the immediate wake of 9/11, passed with unseemly haste and essentially no debate with most members of Congress not even having had the chance to scan the hundreds of pages of the bill, less having read it and analyzed it, even then, even in that atmosphere, enough members kept enough of a grip on their sanity to put "sunset" provisions on some parts of the monstrosity, willing to look forward to a time when the so called "great war on terror" might not inspire the same feelings of overwhelming dread and we might decide the expended powers to poke, prod, and pry into every part of our private lives, well, maybe we overdid it a little. A little.

As a result, those provisions had to be renewed. And they were, in 2006 under the Bush gang and in 2011 under or own President Hopey-Changey.

Now, they are coming up again and this time there is at least the appearance of a debate, all because of one event that occurred since the last renewal: an event named Edward Snowden.

Edward Snowden
Because of Edward Snowden, we know about the mass collection of so-called "metadata" about our personal telephone calls, we know about tracking of our emails and other online activities, while phrases like "bulk collection of data" and "mass surveillance" come easily to our lips. We know - we have it in their own words in their own memos - that "collect it all" is the mantra of the National Security Agency, the NSA.

And we know - again because of the spooks' own words, their own repeated failures in their attempts to make a case for it - we know that this massive, daily, on-going, organized, conscious, deliberate violation of our privacy and our rights has not done a damn thing to make us "safe."

And now three provisions of the Traitor Act will expire, will no longer be law, as of June 1 unless Congress acts - in fact, because of a planned recess, Congress actually has until May 22.

Two of those three provisions are known as the "lone wolf" provision and the "roving surveillance" provision. The first changed the definition of "foreign terrorist" to include any non-US-citizen suspected to be somehow a terrorist or a terrorist-in-waiting even if they have no connection whatsoever to any other group or country or whatever. Even if they are all by themselves, they are still considered part of "international terrorism."

The "roving surveillance" provision in essence authorizes telephone wiretaps on an individual. Normally such wiretaps are on a particular phone line. This provision says that no, you are not doing surveillance on the phone line but on the person - so you can, under a single warrant, tap, you can surveil, any phone line that this person may use.

But the provision that's caused the biggest stink is Section 215.

Section 215 allows investigators to obtain "any tangible things (including books, records, papers, documents and other items)," as long as the records are sought "in connection with" a terror investigation. The phrase "in connection with" is important. I means that the person or organization or institution whose records are sought need not be suspected of any wrongdoing. They need not even be connected to anyone suspected of any wrongdoing. The only requirement is that investigators be prepared to claim that the information is in some way, is somehow, "relevant" to an investigation. Which is why it's sometimes referred to as the "library records" provision - because some federal spook somewhere might think that the books you read are "relevant" to - something.

It was Section 215 that enabled NSA's on-going, daily, bulk collection of metadata on millions and millions of phone calls. Defenders of the Traitor Act have claimed that such metadata is just a list of what number called what number, so what's the big deal, but that is flatly false. It does include what number called what number, yes - which of course, if it's a landline it reveals from where the call was made (with the same applying to where the call was to) -  but it also includes what time the call was made, how long the call was, your calling card number if you used one, the trunk identifier (which narrows down the physical location of the caller), the IMEI number (a cell phone's unique identifier) and the IMSI number (the unique identifier of the SIM card in your mobile phone).

In 2013, at the time this was coming out, The British newspaper The Guardian noted that
when cross-checked against other public records, the metadata can reveal someone's name, address, driver's licence, credit history, social security number and more. Government analysts would be able to work out whether the relationship between two people was ongoing, occasional or a one-off.
In one small-scale study at Stanford University a year ago, researchers found that phone metadata is
unambiguously sensitive, even in a small population and over a short time window.
Using only metadata willingly provided by a group of people via a certain app, that is, metadata from a limited number of people and only over a period of a couple of months, the researchers were able to infer one case of multiple sclerosis, one heart condition, an unplanned pregnancy, what some of gun someone owned, and they had a high degree of success in cases where they tried to predict someone's religion.

That was, again, a small number of people over a limited time. The NSA is sucking up such data on millions of phone calls every day and has been doing it for several years.

And that doesn't begin to express the reach of Section 215. It's been used to justify NSLs, or National Security Letters, these extra-judicial search warrants, unreviewed by any court, not even the notoriously compliant Foreign Intelligence Surveillance Court, which virtually never rejects an application for a warrant, an extra-judicial search warrant issued by any FBI field supervisor on their own authority demanding sensitive information and accompanied by a gag order which not only prohibits the recipient from revealing what records were sought but even from mentioning ever having gotten the demand in the first place.

So it is not surprising that there is a push being put on by civil liberties groups and the civil libertarians in Congress - which includes some folks on the right as well as the left - to let Section 215 die its well-deserved death. Even the White House is on board with that idea, having admitted some time ago that it just doesn't need it. (It could hardly have done otherwise, in light of the fact that Obama's own presidential task force concluded that the program is "not essential to preventing attacks.")

So what's happened?

In April, Senate Majority Leader Fishface McConnell and Senate Intelligence Committee Chairman Richard Burr introduced a bill that would extend all three expiring provisions through 2020, without any changes, using a maneuver intended to have the bill skip any committee hearings and go straight to the Senate floor for a vote.

Sen. Fishface McConnell
However, the House Judiciary Committee reached a bipartisan agreement on a different bill, one that supposedly - I strongly emphasize the word - offers significant reforms. Originally, the bill, called the USA Freedom Act, let Section 215 expire, but even that reasonable provision - remember, even the White House says it can do without it - was watered down in the pursuit of the mythologized bipartisan support. Now, the USA Freedom Act narrows the type of records collected, adds some oversight protections, and toughens the standards for a warrant to examine phone company records, but it doesn't end bulk data collection. Instead, it requires the phone companies to maintain those records so that the feds can look at them if they can convince a court they have a "reasonable, articulable suspicion" that a specific search term - such as a certain telephone number - was associated with international terrorism.

That bill is expected to pass the House but its chances in the Senate - where the right-wing leadership wants our privacy to be invaded unimpeded - are uncertain. And while the USA Freedom Act is, again, expected to pass the House, civil liberties groups seriously question what protections it actually offers. For one unhappy example, the court they have to convince to get a warrant to search phone records is the - I say it again - notoriously compliant Foreign Intelligence Surveillance Court.

So, as one observer put it,
here's where we stand with Patriot Act Section 215: two bills, no real changes, a blindfolded fight over the Patriot Act and a bad feeling about everything.
And now that I've depressed you, let me make you feel really down: Remember, all this talk only applies to the three sections of the Traitor Act that are due to expire on June 1. The rest of it rolls merrily along. And while much of the bill is reasonably noncontroversial, often enough just dealing with administrative changes, there is one section that is not part of the debate because it is not going to expire. And its implication are, if anything, worse than those connected to Section 215.

It is Section 702 of the Traitor Act.

Unlike the bulk metadata collection under Section 215, information which the phone companies are required to provide to the spooks on a daily basis, Section 702 is the one under which the NSA sucks up data directly from the physical infrastructure of communications providers. It's the one through which the NSA scoops up mountains of data traveling over the internet, data including emails, instant messages, Facebook messages, web browsing history, and more.

Just to make sure that's clear, unlike the telephone metadata program, the information gathered up under Section 702 includes content. It's not just who sent an email to who, it's the content of that email. It's not just who sent who an instant message, it's what was in that message. You posted a YouTube video under privacy protections so that only specified friends could see it? The NSA can see it, too.

The NSA is not supposed to "intentionally target any U.S. citizen, any other U.S. person, or anyone located within the United States." But the words "intentionally" and "target" both have been given wide and let's just call them "flexible" meanings such that millions of internet records of millions of Americans are "unintentionally" swept up. But don't worry, the NSA insists it doesn't "collect" any records on Americans - until it turns out that in the NSA's version of English, a record isn't "collected" until an agent actually directly examines it. It can be gathered, indexed, and permanently stored, but it hasn't - yet - been "collected."

I hope you're reassured that your Fourth Amendment rights and your constitutional right to privacy are under such trustworthy and strong protection.

There is only one real answer to this and it is just not going to happen, at least not this year: We have to throw out all of the Traitor Act and start over.

Again, a lot of the Act is noncontroversial and even common sense administrative changes. It would be easy enough to pull those out and reintroduce them over again and get them passed in pretty much no time.

But those provisions are not the issue. And after 14 years of the Traitor Act with no evidence that it has done anything to protect life or property or anything else worth protecting, after years of mass intrusions into our privacy, after thousands of Traitor-Act-approved secret searches of homes, offices, and other premises - 6,500 of them in 2013 alone, the vast majority of them having nothing to do with terrorism - it's time to say enough. Before it's too late.

There are those - as there always are in any such case - who say they are not worried because they didn't anything wrong and so the NSA doesn't care about them because they only go after "the bad guys."

To those people I would only say that you are staking a hell of a lot on the assumption that power does not corrupt.

Sources cited in links:

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