Tuesday, June 02, 2015

Don't kid yourself: The Freedom Act won't reform the NSA

The NYT headline proclaims: "Senate Approves Sharp Curtailing of N.S.A. Surveillance".
The legislation signaled a cultural turning point for the nation, almost 14 years after the Sept. 11 attacks heralded the construction of a powerful national security apparatus. The shift against the security state began with the revelation by Edward J. Snowden, a former National Security Agency contractor, about the bulk collection of phone records. The backlash was aided by the growth of interconnected communication networks run by companies that have felt manhandled by government prying.

The storage of those records now shifts to the phone companies, and the government must petition a special federal court for permission to search them.
Of course, the FISA court is not exactly accountable to the public, is it? If the court functions as a rubber stamp, we don't really have reform.

According to the NYT, "outside voices" will be able to argue before the court "on certain occasions." A spoonful of sugar helps the fascism go down. I'm not impressed.

The Guardian tries to muster up some optimism:
Many also warned however that the bill is “just the beginning”, including the ACLU’s deputy legal director, who said: “The bill leaves many of the government’s most intrusive and overbroad surveillance powers untouched, and it makes only very modest adjustments to disclosure and transparency requirements.”
But senior internet researcher Cynthia Wong qualifies her comments, saying “USA Freedom only addresses one small slice of the mass surveillance apparatus revealed by Snowden two years ago.

“The fundamental rights to privacy and freedom of expression so sacred to Americans are no less precious to citizens of other countries and no one can flourish under the threat, or the fact, of mass surveillance. The time has come for more comprehensive surveillance reforms, moving beyond fixes at the margins.”
Congressman Justin Amish (a pro-privacy critic of the bill) offered this analysis of the Freedom Act back on May 14:
You will read all sorts of stories and headlines about how the latest USA FREEDOM Act ends "bulk" collection. It doesn't. In fact, the bill expressly authorizes, for the first time, the NSA, FBI, and other government agencies to unconstitutionally collect data in bulk on potentially millions of law-abiding Americans.
The bill's sponsors, and unfortunately some outside advocacy groups, wrongly claim that H.R. 2048 ends "bulk" collection. It's true that the bill ends the phone dragnet as we currently know it—by having the phone companies themselves hold, search, and analyze certain data at the request of the government, which is worse in many ways given the broader set of data the companies hold—but H.R. 2048 actually expands the statutory basis for the large-scale collection of most data.

H.R. 2048 does this by authorizing the government to order the production of records based upon a “specific selection term” (i.e., like a search term used in a search engine). The records sought still must be relevant to an investigation, so it’s possible the court’s ruling will continue to restrain the government in some fashion. But it’s more likely a court looking at H.R. 2048’s language will see the “specific selection term” as defining the outer limits of what Congress considers acceptably “relevant” under Section 215.
A “specific selection term” may be a specific person (including a corporation, such as Western Union), account, address, or personal device, but it also may be “any other specific identifier,” and the bill expressly contemplates using geographic regions or communication service providers (such as Verizon) to define the records sought, so long as it's not the only identifier used as part of the specific selection term. In other words, the bill doesn't let the government require Verizon to turn over all its records without limitation, but nothing appears to prevent the government from requiring Verizon to turn over all its records for all its customers in the state of New York. Only a politician or bureaucrat wouldn't call that "bulk."
Emphasis added. Are you beginning to understand what an exercise in deception this "reform" act is?
H.R. 2048 gives our intelligence agencies, for the first time, statutory authority to collect Americans’ data in bulk. In light of the Second Circuit’s opinion that the NSA has been collecting our information in bulk without statutory authority for all this time, it would be a devastating misstep for Congress to pass a bill that codifies that bulk collection and likely ensures no future court will ever again be positioned to rule against the government for over-collecting on statutory grounds.
Looks to me as though we're being hornswoggled. Government eavesdropping has been effectively privatized, with the communications companies now forced to store data for the government. There is nothing for it but to keep on pressing for real reform.

The Electronic Frontier Foundation outlines the fights ahead:
Certain provisions of the Foreign Intelligence Surveillance Amendments Act are scheduled to sunset in 2017, including Section 702, one of the main legal authorities the government relies on to engage in mass surveillance of people’s online communications. We’re going to campaign for the reform—or expiration—of Section 702 in the next year and a half, using the resources, communities, networks, and many of the strategies we developed in the battle around the USA Freedom Act.

We’ve also been speaking out publicly against Executive Order 12333, an executive order that the NSA relies on for most of its digital surveillance of people worldwide. We’ll be launching a big campaign to attack this Executive Order, putting pressure on President Obama. Our goal is to get the president to address the biggest problems with EO 12333 with a new executive order before he leaves office.

Above all, we’re taking aim at the problem of overclassification. The government has used secrecy and the claim of national security interests to ward off public oversight. No reform can be effective unless we bring more sunlight into how the government is interpreting the law and the surveillance programs it is turning against law-abiding citizens. This necessitates an overhauling of the classification system, reforms to the security clearance process, strong protections for whistleblowers, even more transparency to the FISA Court, and addressing the abuses of the state secrets privilege.

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