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Beware the surveillance reform Trojan horse: what's not in the new NSA laws? Beware the surveillance reform Trojan horse: what's not in the new NSA laws?
(5 months later)
This week was undoubtedly a turning This week was undoubtedly a turning point in the NSA debate. Edward Snowden said it himself on Monday, as some of the NSA's most ardent defenders, including the House Intelligence Committee and the White House, suddenly released similar proposals endorsing the end of the NSA's bulk collection of phone records as we know it.
point in the NSA debate. Edward Snowden said it himself on Stopping the government from holding onto of all Americans' phone metadata would undoubtedly be a good thing for American privacy, but if you read between the legislative lines, the government might not be curtailing mass surveillance so much as permanently entrenching it in American law.
Monday, as some of the NSA's most ardent defenders, including the House Rep Justin Amash, one of the NSA's leading critics in the House, said of the Intelligence Committee bill: "It doesn't end bulk collection but actually puts more Americans in danger of having their constitutionally protected rights violated." While the Obama plan is undoubtedly more promising, with court requests and much more, Jameel Jaffer of the American Civil Liberties Union has several important questions about the proposal that need to be answered before anyone will really be able to judge. And the Cato Institute's Julian Sanchez detailed why neither of these proposals are as good as the USA Freedom Act, which may now be getting boxed out.
Intelligence Committee and the White House, suddenly released similar proposals endorsing To be sure, neither of the two new proposals would actually "end mass surveillance", as this National Journal headline proclaimed, or even "end bulk collection" entirely, as most of the other reports suggest. Even the authors know it: the title of the House Intelligence bill was the "End Bulk Collection Act" for just one day before it was changed, perhaps because, as Techdirt's Mike Masnick wrote, "[Rep Mike] Rogers and his staff realized that … was so bogus that they couldn't go forward."
the end of the NSA's bulk collection of phone records as we know it. Curiously, a large majority of the House bill focuses on new ways for the government to collect data from "electronic communications service providers" – also known as the internet companies. Why is a bill that's supposedly about ending bulk collection of phone-call data focused on more collection of data from internet companies? And then there's this clause, pointed out by the eagle-eyed Marcy Wheeler, which seems to try to head off court challenges to the bill once it's passed into law.
Stopping the government from holding At least the White House proposal insists on "a new kind of court order" before every search, but the administration has already started slipping into dangerous territory. According to the first report in the New York Times on Monday, the NSA would only be allowed to search phone records under the Obama proposal if the agency could prove a reasonable suspicion to terrorism. By the end of the week, the White House’s "fact sheet" said the NSA would be able to search "within two hops" of phone records – that's potentially tens of thousands of people – based on a phrase that should send chills down the spine of every journalist who has ever had a source the government may not like: "national security concerns". Why do they even need the extraordinary "two-hops" power at all again?
onto of all Americans' phone metadata would undoubtedly be a good And what about all the reforms left out of both proposals? Like preventing "backdoor" warrantless searches on Americans. Like stopping the NSA from undermining common encryption used by everyone. Like leaving bulk collection for the rest of the world's citizens untouched. As Foreign Policy’s Shane Harris wrote, the NSA may get more out of this bill than Snowden himself.
thing for American privacy, but if you read between the legislative lines, the If this is the only thing the Obama administration is doing about surveillance reform, it's not nearly enough.
government might not be curtailing mass surveillance so much And if you want to get an idea of how terrifying the House Intelligence bill will likely become, just look at the co-sponsors. House Intelligence Committee chairman Mike Rogers, one of the authors, has been sliming Snowden as a Russian agent for months, despite absolutely no proof. Rep Peter King, another sponsor, has called for the NSA journalists prosecuted. House speaker John Boehner, who has fought tooth and nail against NSA reform ever reaching the House floor, is suddenly "praising" the "bipartisan" bill. And after months of desperately defending it as his brainchild, all of a sudden NSA chief Keith Alexander now says he supports the new proposal to "end" bulk collection. Why?
as permanently entrenching it in American law. Rogers and Alexander may be retiring, but things are moving fast behind the scenes. The White House, after dragging its feet for months, now is imploring quick action by Congress. It's also been rumored the House Intelligence Committee will mark its bill up and send it to the House floor as early as next week, which will effectively box out the USA Freedom Act.
Rep Justin Amash, one of the NSA's We'd do well to remember a more recent time in which Congress took up NSA wrongdoing, during the first warrantless wiretapping scandal of the Bush years. Then was much like now: outrage among many when the Times reported the NSA was wiretapping Americans without a warrant in 2005, USA Today reporting that the NSA had a "massive database" with millions of Americans' phone records in 2006, and AT&T whistleblower Mark Klein going to EFF with definitive proof the NSA was wholesale copying large portions of Internet traffic later that year.
leading critics in the House, said of the Congress responded with outrage and public hearings, but when it came to passing actual new laws, there was no sweeping reform – there was sweeping under the rug: Congress legalized much of the Bush administration's illegal practices with the FISA Amendments Act (now Obama's justification for PRISM and upstream surveillance), and killed lawsuits against the telecommunications companies like AT&T by giving them retroactive immunity, even though they undoubtedly committed felonies while helping the government covertly spy on its citizens without a court order.
Intelligence Committee bill: "It doesn't end bulk This is all happening with astounding speed and is now all of a sudden being spearheaded by the players in both parties who have repeatedly misled the American public over the past 10 months. Maybe it's time we heed the warning of the late George Carlin: "'Bipartisan' usually means that a larger-than-usual deception is being carried out."
collection but actually puts more Americans in danger of having their
constitutionally protected rights violated." While the Obama plan is
undoubtedly more promising, with court requests and much more, Jameel
Jaffer of the American Civil Liberties Union has several
important questions about the proposal that need to
be answered before anyone will really be able to judge. And the
Cato Institute's Julian Sanchez detailed why
neither of these proposals are as good as the USA Freedom
Act, which may now be getting boxed out.
To be sure, neither of the two new
proposals would actually "end mass surveillance", as this National
Journal headline proclaimed, or even "end bulk
collection" entirely, as most of the other reports suggest. Even
the authors know it: the title of the House Intelligence bill was the
"End Bulk Collection Act" for just one day before it was
changed, perhaps because, as Techdirt's Mike
Masnick wrote, "[Rep Mike] Rogers and his staff
realized that … was so bogus that they couldn't go forward."
Curiously, a large majority of the
House bill focuses on new ways for the government to collect data from
"electronic communications service providers" – also known
as the internet companies. Why is a bill that's supposedly about ending bulk
collection of phone-call data focused on more collection
of data from internet companies? And then there's this clause, pointed
out by the eagle-eyed Marcy Wheeler, which
seems to try to head off court challenges to the bill once it's passed into
law.
At least the White
House proposal insists on "a new kind of court
order" before every search, but the administration has already
started slipping into dangerous territory. According to the first report in the
New York Times on Monday, the NSA would only be
allowed to search phone records under the
Obama proposal if the agency could prove a reasonable suspicion to
terrorism. By the end of the week, the White House’s "fact
sheet" said the NSA would be able to
search "within two hops" of phone records –
that's potentially tens of thousands of people – based on a phrase
that should send chills down the spine of every journalist who has ever
had a source the government may not like: "national security
concerns". Why do they even need the extraordinary
"two-hops" power at all again?
And what about all the reforms
left out of both proposals? Like preventing
"backdoor" warrantless searches on Americans. Like stopping
the NSA from undermining common encryption used by everyone. Like leaving
bulk collection for the rest of the world's citizens untouched. As Foreign
Policy’s Shane Harris wrote, the NSA may get more
out of this bill than Snowden himself.
If this is the only thing the Obama
administration is doing about surveillance reform, it's not nearly enough.
And if you want to get an idea of how
terrifying the House Intelligence bill will likely become, just look at the
co-sponsors. House Intelligence Committee chairman Mike Rogers, one of the
authors, has been sliming Snowden as a Russian agent for months, despite
absolutely no proof. Rep Peter King, another sponsor, has called for the
NSA journalists prosecuted. House speaker John Boehner, who has fought tooth
and nail against NSA reform ever reaching the House floor, is suddenly
"praising" the "bipartisan" bill. And
after months of desperately defending it as his brainchild, all of a
sudden NSA chief Keith Alexander now says he supports the new
proposal to "end" bulk collection. Why?
Rogers and Alexander may
be retiring, but things are moving fast behind the scenes. The White
House, after dragging its feet for months, now is imploring quick
action by Congress. It's also been rumored the House Intelligence Committee
will mark its bill up and send it to the House floor as early as next week,
which will effectively box out the USA Freedom Act.
We'd do well to remember a more
recent time in which Congress took up NSA wrongdoing, during the first
warrantless wiretapping scandal of the Bush years. Then was much like now:
outrage among many when the Times reported the NSA was
wiretapping Americans without a warrant in 2005,
USA Today reporting that
the NSA had a "massive database" with millions
of Americans' phone records in 2006, and AT&T whistleblower Mark
Klein going to EFF with
definitive proof the NSA was wholesale copying large
portions of Internet traffic later that year.
Congress responded with outrage
and public hearings, but when it came to passing actual new laws, there
was no sweeping reform – there was sweeping under the rug: Congress legalized much of
the Bush administration's illegal practices with the FISA
Amendments Act (now Obama's justification for PRISM and upstream surveillance),
and killed lawsuits against
the telecommunications companies like AT&T by giving them
retroactive immunity, even though they undoubtedly
committed felonies while helping the government covertly spy on its citizens
without a court order.
This is all happening with astounding
speed and is now all of a sudden being spearheaded by the players in both
parties who have repeatedly misled the American public over the past 10 months.
Maybe it's time we heed the warning of the late George
Carlin: "'Bipartisan' usually means that a
larger-than-usual deception is being carried out."