Change to Surveillance Reform Bill Could Nullify Ban on Mass Record Collection


Senate Judiciary Committee

The USA FREEDOM Act, the surveillance reform bill that was unanimously approved by the House judiciary and intelligence committees earlier this month, has been revised at the Obama administration's request to loosen its restrictions on data collection. The version approved by the committees said demands for records, whether pursued through secret court orders under Section 215 of the PATRIOT Act or through the administrative subpoenas known as national security letters, had to be based on a "specific selection term"—defined as "a term used to uniquely describe a person, entity or account." That provision was aimed at banning the sort of mass collection that the National Security Agency (NSA) used to build its controversial database of telephone records. Instead of collecting information about the entire population, the government would have to specify a target (although in the case of phone records it still could have obtained information about calls made and received by people up to two "hops" away from the target). But the new version of the bill, which is the one that will go to the House floor, redefines "specific selection term" as "a discrete term" that "limit[s] the scope of the information or tangible things sought."

While the White House insists that the bill still bans mass collection of records, the practical impact of this revision could be dramatic. The bill says a "specific selection term" could be "a term specifically identifying a person, entity, account, address, or device," but it does not limit the meaning of the phrase to such narrowly targeted data collection. Suppose the FBI, acting on behalf of the NSA, seeks a Section 215 order for information about every phone call made outside of Idaho. The exclusion of Idaho could be interpreted as a discrete term limiting the scope of the information sought.

If that scenario seems far-fetched, so does arguing that information about every single call made by every single person in the United States is "relevant" to a terrorism investigation because some of those people might be terrorists. Yet that is the argument the government made, and it was secretly accepted by the Foreign Intelligence Surveillance Court (FISC), which approved mass collection orders under Section 215 on that basis. As Harley Geiger, senior counsel at the Center for Democracy and Technology, tells The New York Times, "The government has shown remarkable capacity to creatively interpret terms that appeared clear, like 'relevant,' and this definition is ambiguous enough that it allows, if not entire-population-scale collection, large-scale collection."  Acknowledging that danger, the latest version of the bill requires that any FISC decision construing "specific selection term" be publicly disclosed, at least in summary form.

The way that phrase is interpreted will determine the scope of government access not just to phone records but to every other kind of information that can be obtained through national security letters or Section 215 orders. National security letters, which do not require judicial approval, can be used to demand credit reports and financial information as well as email and telephone metadata. Section 215 specifically mentions medical, educational, library, book sale, gun purchase, and tax records. But it is applies to "any tangible things," so it it covers all sorts of records held by third parties, including information about credit card purchases, cell phone locations, travel, and online behavior. Under the interpretation that the Obama administration used to justify the NSA's phone record dragnet, the government is authorized to collect not just some but all such records, pertaining to every American, whether or not there is any reason to suspect him of involvement in terrorism. As Deputy Attorney General James Cole explained last year, "If you're looking for the needle in the haystack, you have to have the entire haystack to look through." Given the definition of "specific selection term" demanded by the administration, that requirement could amount to nothing more than leaving behind a few pieces of straw.

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  1. FYTW?

    1. FYTW FTW!

      1. America! FY!

  2. See also: Commerce Clause.

  3. redefines “specific selection term” as “a discrete term” that “limit[s] the scope of the information or tangible things sought.”

    With all due respect, have these clowns *any* shame at all?

    1. No accountability, no repercussions, no change in behavior. It’s quite simple.

      1. That is their ultimate objective, and they will never stop advancing towards it unless stopped.

        1. They’re mighty close to it right now. Sure, the electorate will toss one party for the other, perhaps a little more frequently now than in the past, but real, personal accountability? Hardly any.

          You don’t have to be a crazed libertarian or anarchist to see that many people in government are behaving illegally, unethically, and immorally. Yet how many actually get busted for it and suffer for it? Heck, even the measly few that get caught, what usually happens to them?

          1. Yay cushy lobbyist jobs and cocktail parties!

    2. the White House insists that the bill still bans mass collection of records

      How TF can it? By invoking as the “specific selection term” something like “only information and tangible things that exist on planet Earth” you’ve pretty much got “mass collection”. 8-(

    3. the latest version of the bill requires that any FISC decision construing “specific selection term” be publicly disclosed, at least in summary form.

      Emphasis added. We are so fucked.

      1. ”(b) REDACTED FORM.?The Director of National 16 Intelligence, in consultation with the Attorney General, 17 may satisfy the requirement under subsection (a) to make 18 a decision, order, or opinion described in such subsection 19 publicly available to the greatest extent practicable by 20 making such decision, order, or opinion publicly available 21 in redacted form.

        So anything pertinent will be blacked out.

  4. I am so shocked at this! Shocked!

    1. Here are the wiretap reports you requested, Sir.

      1. “If you’re looking for the needle in the haystack, you have to have the entire haystack to look through.”

        Keep ’em coming, Tonio! *Damn* it, Man — how do you expect Almanian to find that needle without *all* the straw!

  5. It doesn’t matter how you craft the language, until Congress is willing to hold judges and prosecutors responsible for making ridiculous interpretations, this won’t stop. The mass collection case is an outrage. Congress knows who those judges are. If it really is bothered by their decision, it should impeach them. And Congress, last I looked can via a rider on an appropriations bill, fire an executive branch employee. The old joke that it takes an act of Congress to fire someone is really true. Fire the US attorneys who made the argument in the next DOJ appropriations bill and impeach the judges who agreed with the argument and this shit would stop very quickly.

    1. Yep, simply do that. What goodies does FISC have on these folks, anyway?

  6. You don’t get it – Obama will hold a signing ceremony where he says that “this new law will strike a proper balance between blah blah,” and everyone will cheer, and we’ll have nothing to worry about.

    1. Obama ha sempre ragione. True story: One of my prog Facebook friends insists on talking about NSA spying in the past tense and specifying “under Bush.”

  7. I can’t eat as much as I’d like to puke when I read this stuff.

    Borrowed from Max Liebermann’s comment on seeing a Nazianz torchlight parade.

  8. Thanks for publishing this. I’ve sent my concerns to my Representative. Not sure it will amount to a hill of beans, but at least it’s there.

    1. Dear _____:

      Thank you for taking the time to write to me. I value the views of my constituents and will take yours into account when I vote on this bill.

      Yours truly,

      Your Representative’s form-letter macro

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