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End of Patriot Act restrictions is a win but vigilance is needed to make it real End of Patriot Act restrictions is a win but vigilance is needed to make it real
(35 minutes later)
The expiration of portions of the Patriot Act – particularly the bulk collection of US phone data – marks a clean break from the post-9/11 surveillance era, however brief that turns out to be.The expiration of portions of the Patriot Act – particularly the bulk collection of US phone data – marks a clean break from the post-9/11 surveillance era, however brief that turns out to be.
The challenge now for reformers, with new legislation underpinning surveillance probably just days away, is to try to make the victory a real rather than symbolic one.The challenge now for reformers, with new legislation underpinning surveillance probably just days away, is to try to make the victory a real rather than symbolic one.
Top of the list for scrutiny is whatever replaces Section 215 of the Patriot Act – the provisions which enabled the NSA’s huge database of US call records, recording who Americans were calling, when, and for how long.Top of the list for scrutiny is whatever replaces Section 215 of the Patriot Act – the provisions which enabled the NSA’s huge database of US call records, recording who Americans were calling, when, and for how long.
The second circuit appeals court had already found that the agency’s bulk collection was not authorized even under that law, but its expiration marks a further blow against the programme. The second circuit appeals court had already found that the agency’s bulk collection was not authorised even under that law, but its expiration marks a further blow against the programme.
The “solution” favoured by Barack Obama, and aired in the current draft of the USA Freedom Act, is to replace bulk collection with a requirement on phone companies to save their customers’ billing records – again, who they call, for how long, and when – which would then be made available to intelligence agencies through a Fisa court – the secret court that approves almost all surveillance requests – process.The “solution” favoured by Barack Obama, and aired in the current draft of the USA Freedom Act, is to replace bulk collection with a requirement on phone companies to save their customers’ billing records – again, who they call, for how long, and when – which would then be made available to intelligence agencies through a Fisa court – the secret court that approves almost all surveillance requests – process.
On the face of it, this seems to be substantially different from the huge database it would replace. But a look at a similar programme in the UK shows how similar the two can be in practice.On the face of it, this seems to be substantially different from the huge database it would replace. But a look at a similar programme in the UK shows how similar the two can be in practice.
The UK system relies on two pieces of legislation. The Data Retention and Investigatory Powers Act, brought in with a two-year sunset clause after a European court ruling, requires phone companies to store customer records for a year.The UK system relies on two pieces of legislation. The Data Retention and Investigatory Powers Act, brought in with a two-year sunset clause after a European court ruling, requires phone companies to store customer records for a year.
UK police forces and intelligence agencies can then access the requests through the Regulation of Investigatory Powers Act (Ripa) – but the process to get the records is so simple that, in this era of linked data, the UK might as well have a single, huge NSA-style database. UK law enforcement agencies make almost 500,000 Ripa requests a year, the overwhelming majority of which are granted.UK police forces and intelligence agencies can then access the requests through the Regulation of Investigatory Powers Act (Ripa) – but the process to get the records is so simple that, in this era of linked data, the UK might as well have a single, huge NSA-style database. UK law enforcement agencies make almost 500,000 Ripa requests a year, the overwhelming majority of which are granted.
The police force or agency is required to submit its request through an authorized individual in the same organization, who types the phone number and a few other details into an electronic form. The police force or agency is required to submit its request through an authorised individual in the same organization, who types the phone number and a few other details into an electronic form.
For most phone companies, that is then automatically processed and approved, and the call records transferred near-instantly, thanks to standardized computer systems marketed to the phone companies for that very purpose. There’s no central government-owned database – but there’s barely any substantive difference. For most phone companies, that is then automatically processed and approved, and the call records transferred nearly instantly, thanks to standardised computer systems marketed to the phone companies for that very purpose. There’s no central government-owned database – but there’s barely any substantive difference.
The US proposal as spelled out in the USA Freedom Act is, at least on the surface of it, somewhat more restrictive: intelligence agencies will have to appeal to the Fisa court to search records.The US proposal as spelled out in the USA Freedom Act is, at least on the surface of it, somewhat more restrictive: intelligence agencies will have to appeal to the Fisa court to search records.
The issue, as so often with surveillance law, comes down to the interpretation of the words in the act. Intelligence agency lawyers have an ability matched only by literature majors to overload meanings on to a particular word. The issue, as so often with surveillance law, comes down to the interpretation of the words in the act. Intelligence agency lawyers have an ability matched only by literature majors to overload a particular word with meanings.
Agencies, the present draft states, should request data on “specific selection terms” – which could mean anything from an individual phone number, to an IP address (which might have thousands of users), to in theory even the name of a foreign country. Agencies, the present draft states, should request data on “specific selection terms” – which could mean anything from an individual phone number, to an IP address (which might have thousands of users), to – in theory – even the name of a foreign country.
They can also ask for the call records of friends of friends, known as a “second hop”, of those they’re interested in, when there’s a “direct” connection – but “direct” is left undefined. “Person”, another key term in the law, serves essentially as a synonym for entity, and could mean an individual, company, organisation, or more.They can also ask for the call records of friends of friends, known as a “second hop”, of those they’re interested in, when there’s a “direct” connection – but “direct” is left undefined. “Person”, another key term in the law, serves essentially as a synonym for entity, and could mean an individual, company, organisation, or more.
Those are only the issues raised by a simple surface read. The long experience of matching the policy realities revealed in the documents shown to the Guardian by Snowden to the apparently simple meaning of legislation has taught one key lesson: members of Congress who value civil liberties must ensure the wording is watertight, and read it with a degree of scepticism and care that would usually border on acute paranoia. Those are only the issues raised by a simple surface read. The long experience of matching the policy realities revealed in the documents shown to the Guardian by Edward Snowden to the apparently simple meaning of legislation has taught us one key lesson: members of Congress who value civil liberties must ensure wording is watertight, and read it with a degree of scepticism and care that would usually border on acute paranoia.
Otherwise the US risks turning a seminal moment – the post-9/11 tipping point , where intrusive counter-terror legislation starts rolling back, rather than forwards – into merely a presentational victory, in which the liberals quit the field and the agencies quietly take the real win.Otherwise the US risks turning a seminal moment – the post-9/11 tipping point , where intrusive counter-terror legislation starts rolling back, rather than forwards – into merely a presentational victory, in which the liberals quit the field and the agencies quietly take the real win.