The DiFi lie

Dianne Feinstein has proposed an NSA "fix" which is really a sneaky way to legalize the data collection that everyone hates. Techdirt calls it a bill filled with "a bunch of misleading claptrap designed to make people think it's real reform. It even confused some folks who know this stuff into thinking, after a quick first pass, that it "banned" the bulk data collection."

A couple of points:

1. If, as we've constantly been told, the NSA has never done anything illegal, then why does DiFi feel the need to legalize what they've been doing? Just a couple of days ago, Michael Chertoff wrote a piece (see below) which said that the NSA's metadata collection was "authorized." If the practice is authorized, why would it need to be legalized?

2. Using Dianne Feinstein as the frontwoman in this crusade is a classic example of what David Sirota calls "liberal washing." This technique will continue to be effective as long as the media continues to pretend that any politician with a (D) next to his or her name must be a liberal.

If you want to read DiFi's own defense of this bill, go here. Her argument is standard "terrorists gonna getcha" guff:

We know that terrorists remain determined to kill Americans and our allies. According to new findings by the National Consortium for the Study of Terrorism and Responses to Terrorism, more than 8,500 terrorist attacks worldwide killed nearly 15,500 people last year.

Oooh. Scary. And very misleading. Think about it: If terrorists were racking up that kind of tally each year, wouldn't you personally know someone who lost a loved one to terrorism?

Here's the truth:

According to data tracked by the Triangle Center on Terrorism and Homeland Security in North Carolina and released Friday (.PDF), there were nine terrorist plots involving American Muslims in 2012. Only one of them, the attempted bombing of a Social Security office in Arizona, actually led to any violence. There were no casualties in that or any other incident. And the Triangle study tracks indictments, not convictions.

Since 9/11, Kurzman and his team tallies, 33 Americans have died as a result of terrorism launched by their Muslim neighbors. During that period, 180,000 Americans were murdered for reasons unrelated to terrorism. In just the past year, the mass shootings that have captivated America’s attention killed 66 Americans, “twice as many fatalities as from Muslim-American terrorism in all 11 years since 9/11,” notes Kurzman’s team.

Law enforcement, including “informants and undercover agents,” were involved in “almost all of the Muslim-American terrorism plots uncovered in 2012,” the Triangle team finds.

That's the truth about terror. So who is DiFi trying to kid?

Ellen Nakishima wrote an excellent article on the DiFi's fakery in the Washington Post:

But if the FISA Improvements Act became law, Congress would be validating expansive powers that have been claimed by the NSA and upheld by a court — but never explicitly written into statute — to harvest the phone and e-mail records of millions of Americans, the advocates say.

“The bill that the intelligence committee voted on this week would expressly authorize this bulk collection for the first time, and that would be a huge step backward for the rights of law-abiding Americans,” said Sen. Ron Wyden (D-Ore.), one of four committee members who voted against moving the bill.

Nakishima goes on to make a point similar to the one I made in my preceding post about Michael Chertoff:

Several former senior Justice Department officials, who were not permitted by their current employers to speak on the record, said that e-mail metadata are clearly a business record. “It’s a classic business record,” one former official said. “It’s a record that’s created by the company for the purpose of providing a service. It’s not created at the request of law enforcement or the government.”

Another former official said Internet companies’ servers “create logs for security purposes and to detect fraud, so yes, business records comprised of Internet metadata are generated as part of the company’s ordinary course of business.” And, he added, “that would include Gmail or Hotmail or any of those services.”

This creates a terrible precedent. We cannot allow the government to snoop into the files of a private business without a warrant.

And then we get to the truly sneaky stuff:

Wyden and privacy advocates are also concerned that the bill would place in statute authority for the NSA to search without a warrant for Americans’ e-mail and phone call content collected under a separate FISA surveillance program intended to target foreigners overseas. That is what Wyden has called a “backdoor search loophole.”

In other words, it's no good pretending that this bill is just about metadata, as opposed to actual content.

The marvelous Marcy Wheeler, as is her wont, takes the matter further:

But the dead giveaway, the tell that this is a big scam to provide the appearance of limits while at the same time enshrining and possibly expanding the warrantless searching of “incidentally” collected US person content, is where the aides say this:

“There have only been a ‘small number’ of queries each year.”

Hahahaha! Have you missed the number of times NSA has said it would be impossible for them to count the number of Americans whose data has been searched in such a way?! NSA has spent well over a year making that claim, and DiFi has shielded that claim every step of the way.

So when DiFi’s anonymous aides make the claim that the queries protected by the law have only been used a few times a year — indeed, when they make the claim they can be and have been counted at all — they make it crystal clear the protections in the law do not pertain to the vast majority of the searches on US person data that has been collected “incidentally” under Section 702 which — the NSA assures us — cannot be counted.

What DiFi and her aides — by their own anonymous and perhaps inadvertent admission — plan to protect is a tiny fraction of the searches on US person data collected under Section 702, the countable fraction of the practice that NSA can’t or won’t count without incurring resource problems.

OK. Thanks anonymous DiFi aides. I wasn’t sure we had cause to worry. But now you’ve made it crystal clear what is going on.