USA Freedumb Act: The Timing

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I’m going to do a series of more finished posts on the “compromised” version of Jim Sensenbrenner’s USA Freedom Act, which I hereby dub the USA Freedumb Act (thanks to Fake John Schindler for the suggestion), because so many of the reforms have been gutted. Here’s the initially proposed bill. Here’s my working thread on USA Freedumb.

You will hear a great many respectable people making positive comments about this bill, comments they normally would not make. That’s because of the carefully crafted timing.

As you recall, Mike Rogers originally got the House Parliamentarian to rule that the bill could go through the House Intelligence Committee. And his bill, which I affectionately call “RuppRoge” after Rogers and Dutch Ruppersberger and Scooby Doo’s “Rut Roh” phase, is genuinely shitty. Not only does it put the NSA onsite at providers and extend call records collection beyond terrorism applications, but it also extends such collection beyond call records generally. It is likely an attempt to get the US back into the Internet dragnet business. Shitty bill.

That said, in key ways RuppRoge is very similar to USA Freedumb. Both “limit” bulk collection by limiting collection to selectors (Freedumb does so across the board, including for NSLs, whereas RuppRoge does so for sensitive Business Records, call records, and Internet metadata). Both propose a similarly (IMO) flimsy FISC advocate. Both propose laughably weak FISC transparency measures. Both will include compensation and immunity for providers they don’t currently have.

Aside from three areas where RuppRoge is better — it forces agencies to update their EO 12333 proposals, doesn’t extend the PATRIOT Act, and provides a (not very useful) way to challenge certificates, all the way up to SCOTUS — and three where it is far worse — it develops more Insider Threat measures, it applies for uses beyond terrorism and beyond call records, and doesn’t include new (but now circumscribed) IG reporting  — they’re not all that different. [Correction: USA Freedumb ALSO applies beyond terrorism.]

They’re differently shitty, but both are pretty shitty.

The reason why otherwise respectable people are welcoming the shitty Freedumb bill, however, is that it gives House Judiciary Committee — with a number of real reformers on it — first pass on this bill. It’s a jurisdictional issue. It puts the jurisdiction for surveillance bills back where it belongs, at the Judiciary Committee.

Oh, by the way, one of the more extensive (in terms of text) real changes in Freedumb is it finally includes the House Judiciary Committee, along with the House and Senate Intelligence Committees and Senate Judiciary Committee, among the committees that get certain kinds of reporting. Jurisdiction. (No, I can’t explain to you why it wasn’t included in the first place in 2008, and no, I can’t explain why that detail is not better known.) It gives everyone on HJC a tiny reason to support the bill, because they’ll finally get the reporting they should have gotten in 2008.

The House Intelligence Committee will consider RuppRoge the day after HJC considers Freedumb, Thursday. Which has elicited hasty (overly hasty, IMO) statements of support for Freedumb, as a way to head off the shitty RuppRoge.

Effectively, the National Security State has managed to put two differently shitty bills before Congress and forced reformers to choose. Freedumb is the better (as in less horrible) bill, and it might get better in Committee. But it’s not a runaway call. And the haste has prevented anyone from really figuring out what a central change to both programs means, which limits collection to selectors, which could be defined in very broad terms (and about which — you’ll have to take my word for now — the NSA has lied in public comments).

One more timing issue that I suspect explains the sudden activity surrounding “reform.” The Privacy and Civil Liberties Oversight Board is due to release a report on Section 702 in the next month or so (its comment period for the report closed on April 11). Given the comments of David Medine, James Dempsey, and Patricia Wald at hearings, I strongly suspect PCLOB will recommend reforms — at least — to back door searches, and possibly to upstream collection. Both are items which were gutted as USA Freedom became Freedumb. (In addition, two aspects that would have expanded PCLOB’s authorities — giving it a role in picking the FISC advocate and giving it subpoena power — have been removed.) So in the same way that President Obama rushed to reaffirm NSA’s unified structure, in which the Information Assurance Division and Cybercommand functions are unified with the more general NSA spying function, before his handpicked Review Group recommended they be split, this seems to be a rush to pre-empt any recommendations PCLOB makes.

Ultimately, these two shitty bills are destined to be merged in conference anyway, and reformers seem to have given up 75% of the field before we get started.

Which means just about the only “reform” we’ll get are actually tactical fixes to help the Security State deal with legal and technical issues they’ve been struggling with.

The USA Freedumb Act has become — with DiFi’s Fake FISA Fix and RuppRoge before it — the third fake reform since Edward Snowden’s leaks first got published. Wearing down the reformers seems to be working.

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2 Responses to USA Freedumb Act: The Timing

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Emptywheel Twitterverse
bmaz @OrinKerr @benwizner I'll grant that the constant grind may effect them, but think root morality and raft of innocence releases more central
1mreplyretweetfavorite
emptywheel @electrospaces so you now agree they do collect in bulk, even if your theory is that selection of that bulk is not bulk? changed your mind?
2mreplyretweetfavorite
bmaz RT @Ali_Gharib: Don't tell me 'Netanyahu's not a warmonger' when he puts out bullshit war propaganda videos like this: http://t.co/MNIylSM9
3mreplyretweetfavorite
bmaz On the Cusp of an Iran Deal, Israel Facilely Beats the War Drums | The Nation https://t.co/3OSwIZac85 Unconscionable perfidy by Netanyahu
6mreplyretweetfavorite
JimWhiteGNV RT @TampaBayTK: That's three straight games and four out of seven without a baserunner thru 5 innings for the #Rays.
9mreplyretweetfavorite
bmaz @joshgerstein Yep. But I think a DC jury pool would have been good for Sherrod. Whatta ya gonna do?
24mreplyretweetfavorite
bmaz @craighdurham @espinsegall Nope, me either. But the argument Eric made is stronger than I thought it would be.
43mreplyretweetfavorite
bmaz @joshgerstein Search me, no clue. And w/o govt being sued, he is just a collateral witness. I got nothing.
45mreplyretweetfavorite
bmaz @joshgerstein I can understand why they are talking settlement, but the trial would have been fun.
49mreplyretweetfavorite
bmaz Why Justice Scalia Should Seriously Consider Retirement http://t.co/pxGFVLhjZM Strong argument by @espinsegall
1hreplyretweetfavorite
bmaz @nickmartin @nickconfessore @MelissaClark From out here where we have real Mexican food, I am looking very side eye at this bunk.
1hreplyretweetfavorite
bmaz @lilsarg @GenePeyroux ...and grew up next door to an older girl who was one of last wave of polio victims. Can't fathom not vaccinating.
2hreplyretweetfavorite
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