USA Freedumb Act and RuppRoge Both Adopt Intelligence Community Definition of “Bulk Collection”

Update: An updated version of the Managers Amendment does define the term:

(2) SPECIFIC SELECTION TERM.—The term  ‘specific selection term’ means a term used to uniquely describe a person, entity, or account.

This is far better than nothing. Though I have concerns about “entity” and I suspect there will be some pushback here, since not even phone numbers “uniquely describe a person,” much less IPs. (Update: see my post on my concerns about the definition.)

As I noted in this post, USA Freedumb Act (what I’ve renamed the compromised USA Freedom Act) purports to limit bulk collection by tying all collection to specific selection terms. It does this for Section 215.

No order issued under this subsection may authorize the collection of tangible things without the use of a specific selection term that meets the requirements of subsection (b)(2).

It does it for Pen Register/Trap and Trace.

(3) a specific selection term to be used as the basis for selecting the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied;

And it does for all four NSL types, as here with call records under ECPA.

COUNTERINTELLIGENCE ACCESS TO TELEPHONE TOLL AND TRANSACTIONAL RECORDS.—Section 2709(b) of title 18, United States Code, is amended in the matter preceding paragraph (1) by striking ‘‘may’’ and inserting ‘‘may, using a specific selection term as the basis for a request’’.

In fact, that’s the same mechanism RuppRoge (the House Intelligence Committee’s bill) uses to prevent bulk collection — though it limits bulk collection for fewer categories of things.

It does so for electronic communications records.

Notwithstanding any other provision of law, the Federal Government may not acquire under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) records of any electronic communications without the use of specific identifiers or selection terms.

And it does so for sensitive business records.

Notwithstanding any other provision of law, the Federal Government may not acquire under the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, tax return records, education records, or medical records containing information that would identify a person without the use of specific identifiers or selection terms.

And this limitation, both bills proclaim, will prevent bulk collection.

Neither bill defines what they mean by selection term or specific identifier.

Before I consider whether these bills will, in fact, prevent what you and I might consider bulk collection, note what has happened: both of these bills — the crappy Intelligence Committee wish list bill and the allegedly less crappy “reform” bill — have adopted the definition of “bulk collection” used by the notoriously Orwellian Intelligence Community.

This is perhaps best explained in Obama’s President’s Policy Directive on surveillance.

References to signals intelligence collected in “bulk” mean the authorized collection of large quantities of signals intelligence data which, due to technical or operational considerations, is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.).

Now, we’re at a huge disadvantage to be able to assess whether this definition of bulk collection bears any resemblance to what ordinary humans might understand bulk collection to mean, because the government is being very disingenuous about what they claim it to mean.

The government often publicly claims selectors are things “like telephone numbers or email addresses,” as they did repeatedly at the last PCLOB hearing.

I can assure you, however, that when they refer to “selectors like email or telephone,” they’re downplaying their use of things like other IDs (phone handset and SIM card IDs, credit card numbers, Internet IDs or even passwords, IP address, and site cookies). And nothing in the definition says selection terms have to have anything to do with actual people (as the evidence they use malware code as a selector would indicate). Plus, I could envision many things — such as “Area Code 202″ or “Western Union transfers over $100″  – that would seem to qualify as selection terms.

But we can measure whether limits to selectors or search terms prohibits bulk collection via another means — by looking at the program about which we’ve gotten most details on selector searches: upstream 702 collection.

While we can’t assess how many “innocent” Americans get sucked up in this purportedly non-bulk collection (and I doubt NSA can either!), we do have an idea how many American communications get sucked up who shouldn’t according to the one-end foreign rule on the collection.

Up to 56,000 American communications a year, according to FISC Judge John Bates’ estimate (because the NSA refused to provide him the real numbers).

56,000 American communications that should not, under the law, have been targeted, sucked up using “identifiers” and “selection terms.”

And the government doesn’t consider that bulk collection at all.

That, my friends, is the standard two different Committees in Congress have adapted as well, doing the intelligence community’s bidding, claiming they’ve solved the bulk collection problem.

Tweet about this on Twitter77Share on Reddit0Share on Facebook6Google+0Email to someone

One Response to USA Freedumb Act and RuppRoge Both Adopt Intelligence Community Definition of “Bulk Collection”

  • 1

Emptywheel Twitterverse
bmaz RT @cody_k: Gotta love dolts that come around sticking Smith v. Maryland in my face like I couldn't possibly have ever seen it in this nat…
2hreplyretweetfavorite
bmaz RT @MiroCollas: Cat entertains himself with head-mounted laser pointer. http://t.co/GW5CFZllhB LMAO! Evil!!
2hreplyretweetfavorite
bmaz @cody_k Kind of surprised it took Cesca 17 hours to hop on that. He's slipping!
2hreplyretweetfavorite
bmaz RT @cody_k: Right on cue... here comes govt leak prosecutor @bobcesca_go to the rescue. @cenkuygur
2hreplyretweetfavorite
bmaz @NSCPress @JasonLeopold I ask again: When is 60 days up on a continuously rolling and evolving set of WPR "Notifications" for same conflict?
3hreplyretweetfavorite
bmaz @VBalasubramani I knew there would be negative effects from the legalization of pot up there!
3hreplyretweetfavorite
bmaz @JamesFallows His strokes would still be all time world class great. But he would be pretty annoying.
6hreplyretweetfavorite
JimWhiteGNV @litbrit What I found on those McCain pics: http://t.co/hO60jHA93E
6hreplyretweetfavorite
bmaz @pbump Gotta say, between those and the Reefer Madness type of drug videos, it was hard to take growing up seriously.
6hreplyretweetfavorite
bmaz @pbump Ohio State Highway Patrol had a whole series of gruesome videos. They still showed them in mid 70s when I took driver's ed. Bleech.
6hreplyretweetfavorite
bmaz RT @mattdpearce: I've updated my story on the Darren Wilson donations. One fundraiser is a Missouri Democrat running for state senate: http…
7hreplyretweetfavorite
JimWhiteGNV RT @CJonesScout: Looking at the Eastern Michigan football roster has produced some interesting results. http://t.co/JdR4JVSje5
7hreplyretweetfavorite
May 2014
S M T W T F S
« Apr   Jun »
 123
45678910
11121314151617
18192021222324
25262728293031