On USA Freedom: Heed Jan Schakowsky’s Warning

There are two reviews of whether HR 3361 constitutes real reform today, one from McClatchy and one from National Journal, both written partly in response to privacy groups’ realization that Mike Rogers has been doing a circumspect victory lap over the shape of the bill.

While neither examines the flip side of the bill — what the intelligence community will gain from this — they both provide a useful caution about the potential pitfalls in the bill, many (but not all) I’ve examined at this site.

McClatchy is particularly useful, though, for the comments from Adam Schiff and Jan Schakowsky, two of the only people on the House Intelligence Committee who tend to balance the interests of civil liberties against the demands of the intelligence community. Here’s what they had to say about the legislative prospects.

Rep. Adam Schiff, D-Calif., an Intelligence Committee member who isn’t among the letter writers, said he hoped to offer an amendment that would seek to “introduce a greater adversarial process in the FISA court” by establishing a panel of attorneys from which counsel could be selected to participate in cases that involved novel legal and technical issues.

“I believe the civil liberties protections can be improved,” Schiff said.

[snip]

Rep. Jan Schakowsky, D-Ill., an Intelligence Committee member, praised the House bill. “If we could improve it,” she said, “I would go back to the original bill’s provisions that would implement stronger reporting regulations and create an office of the special advocate.”

Schakowsky added, though, “ I am most concerned at this point about preventing any efforts to weaken this bipartisan compromise.”

Remember, HPSCI held its markup behind closed doors, and there has been little leaking about went on there, aside from Rogers’ crowing. So this offers a bit of a read of what might have gone on.

Schiff, if you recall, was one of the very first people to get Keith Alexander to admit the government could conduct its contact-chaining program with the telecoms retaining the data. He is generally a pretty good read on the art of the possible. If he thinks this bill can be improved, perhaps he’s got reason for optimism.

But I find Schakowsky’s warning potentially more realistic.

Remember, one thing HPSCI considered was removing all definition of “specific selection term” (or “identifier,” which HPSCI also included). Without a definition, the bill might only prevent bulk collection of phone records, if that; I believe the government could come up with “selection terms” for everything else that would permit systematic programs. And I suspect something like dropping the definition would — will — happen if this ever gets to a conference (indeed, as Jim Sensenbrenner knows better than anyone, that’s how some of the existing loopholes got retained in PATRIOT in 2005-6, at a time when there was also bipartisan uproar over illegal spying). I think Schakowsky is realistic in worrying that, with the momentum it has picked up with unanimous passage in HJC and a voice vote passage in HPSCI, it could get worse just as easily as it could get better.

As I’ve said, this bill defuses the digital equivalent of a nuclear bomb by taking the phone-based relationship database out of the hands of the government. That’s important.

But from there, it’s unclear what effect this bill will have in practice, and could become far less clear if things like that definition disappear. So we’d be well to take Schakowsky’s warning seriously.

Tweet about this on Twitter0Share on Reddit0Share on Facebook0Google+0Email to someone

3 Responses to On USA Freedom: Heed Jan Schakowsky’s Warning

Emptywheel Twitterverse
bmaz @steve_vladeck Kind of stunning the government affirmatively admitted that.
53sreplyretweetfavorite
bmaz RT @ZoeTillman: Here are some of the issues the former Blackwater guards may bring up if they appeal yesterday's guilty verdicts: http://t.…
4mreplyretweetfavorite
bmaz @ggreenwald @andohehir Sure would be nice if you could get it to Phoenix.
12mreplyretweetfavorite
bmaz RT @OnIyHistory: Guinness planned to advertise in Nazi Germany during the 1936 Olympics ("It's time for a Guiness") http://t.co/D5AwTnTnmP
20mreplyretweetfavorite
bmaz @emptywheel @evanperez Also, statutes of limitation are blithely let run. So, while Holder's comment is nice, it is also total horseshit.
36mreplyretweetfavorite
bmaz @emptywheel @evanperez Making it easier would be fine. But there are already plenty of prosecution modalities; they are just being ignored.
37mreplyretweetfavorite
emptywheel .@RonWyden "ignorant abt...ways in which govt using EO 12333 to conduct overseas data collection w/o court oversight" http://t.co/0BIigEaMcD
51mreplyretweetfavorite
bmaz @michaelbkiefer Nice looking couple!
1hreplyretweetfavorite
emptywheel @wizardkitten 2012 WAS fun. Can we haz clown car again, pleez?
1hreplyretweetfavorite
emptywheel @Krhawkins5 Oh, you're right. Updating.
1hreplyretweetfavorite
emptywheel Remember when Snyder said the flood was like a hole in his lame home? Now it was devastating. https://t.co/lv7cJrkNiv
1hreplyretweetfavorite
emptywheel At least 8 pieces of evidence on torture have already disappeared/been altered. https://t.co/A4G2WfmObL Did the access logs get altered too?
1hreplyretweetfavorite
May 2014
S M T W T F S
« Apr   Jun »
 123
45678910
11121314151617
18192021222324
25262728293031