Monday, June 08, 2015

206.7 - Section 215 is dead; long live Section 215!

Section 215 is dead; long live Section 215!

Now for what I expect you thought I'd lead with: The argument over the expiration of Section 215 of the grossly misnamed PATRIOT Act and the approval of the so-called USA Freedom Act.

The expression "The king is dead! Long live the king!" was meant to express the fact that one king had died but there was immediately another one to take the throne, so there was no gap, no moment without a leader. The same can pretty much be said of Section 215, with a new, only slightly-amended, version of the same section almost immediately replacing the old.

As I expect you know, three provisions of the PATRIOT Act expired at the end of May despite the efforts of the spook-lovers to keep them going intact.

Two of these were regarded as minor, that is, as less important, ones. One is the "lone wolf" provision, allowing surveillance on people even if they have no known connection to any terrorist group or movement, a provision that in fact has never been used. Another is the "roving wiretap," intended to deal with people who try to avoid surveillance by repeatedly using and quickly disposing cheap cell phones. With a roving wiretap, the spooks can under a single warrant tap any phone that person might use. Which, when you consider it, is a pretty damn big expansion of wiretapping authority ("any phone that person might use," indeed) but still was not a source of major controversy, even among privacy advocate groups.

The big one, however, was Section 215 of the PATRIOT Act. This was the one that allowed the government to demand "any tangible thing" that government officials have "reasonable grounds" to believe is "related" to a terrorism investigation. This was the provision the NSA used as authorization for its massive collection of millions of telephone records on an on-going, daily basis.

Sen. Fishface McConnell
Now, after a lot of fussing and fuming, the spook lovers, in the form of Sen. Fishface McConnell, finally relented and agreed to the USA Freedom Act, which put some restrictions on the spies - after, that is, they failed three times to pass amendments to weaken it. The bill had already been passed by the House so it went to Obama, who quickly signed it.

This was regarded as great victory for civil liberties and blah blah blah and so forth and so on.

The thing is, just as the PATRIOT Act should have been called the TRAITOR Act for the damage it inflicted on our liberties and privacy, the USA Freedom Act should have been called the USA "Maybe Not Quite So Bad As Before" Act.

The truth of the matter is that a lot of civil liberties groups and privacy advocates from across political spectrum from the ACLU to Rand Paul opposed the USA Freedom Act on the grounds that it doesn't go far enough to protect privacy and involves only "minimal reforms," saying what should be done is let Section 215 just die outright and start over.

So what does the bill do? For one thing, it does put some supposed limits on the NSA's collection of phone and business records. The bill wouldn't allow bulk collection by a broad category such as state or postal zip codes. What will happen is that the phone companies will keep those records and the NSA can search them but only if it gets a warrant specifying specific records, such as of a particular person or a particular phone number. Unfortunately, where it would go to get such a warrant is the notoriously compliant Foreign Intelligence Surveillance Court, which essentially never refuses such a request and only rarely even modifies them.

Even that limitation is not what it seems: Having specified a target, the NSA can search records out two layers. That is, they can examine the records of the target, the records of everyone the target talked to (one layer out) and the records of everyone that every one of those people talked to (two layers out). The "limitation" is that before they could go three layers out - which again means less than it appears because analysts will admit that going three layers out can wind up drowning you in so much information that it's hard to make sense of it anyway.

What's more, the agency is still allowed to collect phone records if there is a "reasonable, articulable suspicion" that the search is associated with a "foreign power engaged in international terrorism."

And to top it off, the NSA has six months to "transition" to the new rules and at that point, any on-going investigation is grandfathered in and not subject to those new rules.

So a good question would be just what it is that the NSA does now that it truly could not do, could not accomplish, under the new law. It appears that would be a very short list.

Perhaps most important regarding Section 215, the USA Freedom Act still allows for the seizure, on demand, of "any tangible thing." That has been the justification of these things called National Security Letters, where the feds can go to any agency - your phone company, your bank, your credit card company, your employer, whoever - and demand that they turn over all records pertaining to you. The letter comes complete with a gag order barring the recipient from ever saying they even received it. NSLs did not originate with the TRAITOR Act, but it has served to provide a legal justification for them. And they are unaffected by the "Maybe Not Quite So Bad As Before" Act.

Just as importantly if not more importantly, the rest of the TRAITOR Act remains in place. All this talk has been about just a single section of the law. One of most significant sections of the law, one that does not expire, that is permanent, is Section 702. That is the provision that allows the NSA to sink its hooks directly into the infrastructure of ISPs and just suck up all the internet traffic passing through that point: email, Skype chats, videos, anything and everything whether public or not and remember this includes the content. That power, that intrusion, is unaffected by anything that has happened in the past weeks.

Thomas Drake, a former senior executive at the NSA - and a whistleblower - referred to the USA Freedom Act as an "itty-bitty step." Let's hope he wasn't being optimistic as we never forget this is not over.

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