Why USA Freedumber Doesn’t End (What You and I Think of as) Bulk Collection

I fear, reading this Kevin Drum post, that my explanations of why USA Freedumber will not end what you and I think of as bulk collection have not been clear enough. So I’m going to try again.

It is now, with the bill in current form, a 4-part argument:

  • The bill uses the intelligence community definition of bulk collection in its claim to end bulk collection, not the plain English language meaning of it
  • The bill retains the “relevant to” language that got us into this problem
  • The “selection terms” it uses to prevent bulk collection would permit the collection of vast swaths of innocent people’s records
  • Such a reading would probably not rely on any new FISA Court opinion; existing opinions probably already authorize such collection

The intelligence versus the plain English definition of bulk collection

This entire bill is based on the intelligence community definition of bulk collection, not the common English definition of it. As defined by President Obama’s Presidential Policy Directive on SIGINT, bulk collection means,

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.).

Bulk collection, as defined by the intelligence commonly, only means collection that obtains all of a particular type of record: all phone records, all Internet metadata, all credit card records. Anything that stops short of that — all 202 Area Code phone records, all credit card records buying pressure cookers, all Internet metadata for email sent to Yemen — would not count as bulk collection under this definition.

A more commonsense meaning of bulk collection would be the collection of large volumes of data, sweeping up the data of totally innocent people, on which to do further (sometimes technically intrusive) searches to find the data of interest. What we call “Big Data,” for example, would very often not qualify as bulk collection as the intelligence community defines it (perhaps its starts with the health data of everyone born after 1946, for example, or the purchase records from just one online store) but would qualify as bulk collection as you and I would define it.

As I explained in this post, the means USA Freedumber uses to ensure that it does not permit bulk collection is to require the collection start from a “selection term.” Thus, by definition, it cannot be bulk collection because the technical (but not commonsense) definition of bulk collection is that which uses a selection term.

And because they defined it that way, it means that every time some well-intentioned Congressman (it was all men, pushing this bill) boasted that this bill “ends bulk collection” they were only laying a legislative record that would prohibit the intelligence community definition of bulk collection, not the commonsense meaning.

The bill retains the “relevant to” language that gave us bulk collection in the first place

Man, Jim Sensenbrenner must have complained about the way the FISA Court reinterpreted the plain meaning of “relevant to” from the 2006 reauthorization of the PATRIOT Act three or four times in the post-passage press conference. He’s still angry, you see, that a court, in secret, defined the term “relevant to” to mean “any data that could possibly include.”

But this bill does nothing to change that erroneous meaning of the term.

Worse, it relies on it!

For most authorities — the Pen Register (PRTT) authority, the non-call record Section 215 authority, and all National Security Letter authorities –USA Freedumber leaves that language intact. It now requires the use of a selection term, but unlike the new call record language, those authorities don’t require that the selection term be “associated with a foreign power or an agent of a foreign power.” (You can compare the language for traditional Section 215 and the new call records Section 215 at b2B and b2C in this post.)  They don’t even require that the selection term itself be relevant to the investigation!

Thus, so long as there is a selection term — some term to ensure the NSA isn’t grabbing all of a certain kind of record — they’re going to still be able to get that data so long as they can argue that sorting through whatever data they get will yield useful information.

“Specific selection term” is too broad

Now, all that wouldn’t matter if the bill required specific selection terms to be tied to the individual or entity under investigation. Even the USA Freedumb bill didn’t require that.

But the language in USA Freedumber that got passed today makes things worse.

SPECIFIC SELECTION TERM.—The term ‘specific selection term’ means a discrete term, such as a term specifically identifying a person, entity, account, address, or device, used by the Government to limit the scope of the information or tangible things sought pursuant to the statute authorizing the provision of such information or tangible things to the Government.’

Again, note that the selection term only needs to limit the scope of production, not have a tie to the target of the investigation.

And while I actually find comfort from some of these terms — I’d be happy if the financial NSLs could only search on a specific account and the toll record NSL could only get phone records of a specific device (though FBI does use NSLs to get 2 degree separation, so this would return more than just that device’s records). As I’ve said in the past, “entity” is far too broad. It could include al Qaeda — allowing the NSA to obtain all data that might have al Qaeda data within it — or VISA — allowing the NSA to obtain all of that credit card entity’s data.

Then there’s the “basis for” language. The NSA gets to determine precisely what data must be acquired to fulfill the delivery for a particular term. In the past, for example, they’ve successfully argued that some subset of the telecom switches carrying international telecom data could be tapped to find the al Qaeda data (this particular construction is preserved in the PRTT language in the statute).

Finally, though, USA Freedumber adds “such as” to this definition, making it clear these are only some of the possible kinds of selection terms. The intelligence community has already been abusing this construction. For example, at a hearing in March, it told PCLOB it uses selectors “such as telephone numbers or email addresses that will produce foreign intelligence falling within the scope of the [Section 702] certifications.” But in addition to telephone numbers and email, NSA also uses malware code, something witnesses didn’t mention the 9 or so times they described selectors at that hearing, and malware code happens to present a unique set of legal issues. So based on actual past practice, we have reason to assume that when the intelligence community uses “such as,” it is only providing the most innocuous examples of the meaning of a term, and hiding the more troubling ones.

In other words, this bill uses “specific selection term” as the primary means to prohibit bulk collection, but then puts almost no limits on what they can use as a selection term.

Existing court precedents already permit the use of selectors to get bulk data

In their presser today, the bill champions promised that a requirement that FISC inform Congress of any new interpretations of “specific selection term” would ensure the intelligence community doesn’t abuse this structure.

But the IC will be able to get bulk data (using the commonsense definition of the term) using the existing precedents.

There’s the 2004 opinion that blew up the meaning of “relevant to,” which I’ve already discussed.

In 2006 or 2007 (the decision went into effect in January 2007, but I believe it has a 2006 docket number), the FISA Court approved a claim that an entire telecom switch could represent a “facility” under traditional FISA definitions. That decision was modified somewhat in May of that year (in docket 07-449), to hold that “communications containing a reference to a targeted selector are reasonably likely to contain foreign intelligence information,” which is what permits the NSA to have telecoms search the content of 75% of the country’s telecom data to find those selection terms. We have reason to believe that FISC has also approved searches on common beauty supplies — hydrogen peroxide and acetone, albeit probably in high but not abnormally high volumes — as relevant to al Qaeda. And there is presumably some precedent that allows the government to collect significant amounts of financial records under Section 215.

All those are already in place. So long as the IC uses some selection term piggybacking on those decisions, they’ll still be able to get great amounts of data and still claim it is not engaging in “bulk collection.”

The limits on the phone dragnet

There’s one more way bill champions confuse the issue here: by pretending the changes to the phone dragnet affect all the rest of the collection methods.

As I’ve noted above, not only does the new phone dragnet require the use of a “specific selection term,” but it also requires that “that such specific selection term is associated with a foreign power or an agent of a foreign power.” For the phone dragnet, and the phone dragnet only (and USA Freedumber explicitly envisions using Section 215 to obtain phone records outside of this scheme!), the specific selection term has to actually have some tie to a foreign power (though not necessarily a terrorist!).

Now, the intelligence community wants to outsource the querying on phone records to the telecoms for other reasons anyway, so they would use this system in any case. But when bill supporters say this bill ends bulk collection, it does mean it ends bulk phone record collection — as both you and I would define it, and as the IC would (except for that weird language allow them to bypass this provision).

That’s the only collection under Section 215 we’ve seen. That’s the bulk collection we know about. So by stating that this bill would end the current system — and it would — supporters confuse you into believing something similar is going on with all the other large volume collection programs.

It’s not.

As Mike Rogers made clear even before these most recent changes, this bill was not envisioned to change any of the other programs.

So this bill (probably) ends bulk collection of phone records (according to the meaning you and I would use). But there is absolutely no reason to believe it ends other bulk — using the commonsense definition — collection.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

5 replies
  1. orionATL says:

    well, fortunately there is a congressman, a senator, rare soul, who doesn’t have any hesitation about calling a spade a spade:

    http://www.mcclatchydc.com/2014/05/22/228222/wyden-opposes-house-usa-freedom.html?sp=/99/104/244/112/

    says sen. wyden:

    “..I am gravely concerned that the changes that have been made to the House version of this bill have watered it down so far that it fails to protect Americans from suspicionless mass surveillance,” he said.

    Wyden noted that the new text says the government has to use a “selection term” to collect Americans’ records, but the bill’s definition of such terms is too vague–and, Wyden said, “could be used to collect all of the phone records in a particular area code, or all of the credit card records from a particular state.”

    He had this warning: “While this bill’s authors may not intend for it to be interpreted so broadly, the Executive Branch’s long track record of secretly interpreting surveillance laws in incredibly broad ways makes it clear that vague language is ineffective in restraining the Executive Branch. Given the Executive Branch’s record of consistently making inaccurate public statements about these laws in order to conceal ongoing dragnet surveillance of Americans, it would be naive to trust the Executive Branch to apply new surveillance laws with restraint. “

    The bill now goes to the Senate, where Judiciary Committee Chairman Patrick Leahy, D-Vt., is expected to seek changes.

    “Fortunately, the Senate version of the USA Freedom Act still contains a strong prohibition against bulk collection, as well as a number of other important reforms,” Wyden said …”

    • orionATL says:

      so it’s all up to senator pattycake. i wonder how many additional legal holes for querying pattycake will allow the nsa.

      as an aside, are we ever going to be told straight out for just what purpose(s) we MUST have this dense, styfling mat of government spying thrown over our society?

  2. anonymous says:

    So, this is the position of the USG. ‘Cause computers and the internet have developed, we’re going to conduct global mass surveillance, if there’s foreign blowback, who cares, and since US law has not evolved since the 70s, who cares if there’s domestic blowback. And the result is that we were able to conduct the Iraq WMD false flag, bust a cab driver for an $8,000 charity contribution and fail to stop the Boston bombing (more on that later), although we haven’t yet matched our greatest hit of all time, the Gulf of Tonkin incident (most people don’t remember what that is, so no problem). And kill people with metadata. But hey, we’re keeping the multinational corporations that don’t pay taxes safe, only not even, ’cause we don’t disclose 0 days. And the last remaining jobs sector is military and police services, so freedom rocks. Freedom rocks and so does the War on Terror and the War on Drugs. Plus, our incredible decision advantage just helped start Cold War 2.0. So yeah, we really know what we’re doing, and we’re really helping you out, and you should trust us, and fuck you.

  3. sorel says:

    Eloquent Congressman Justin Amash:
    https://www.facebook.com/repjustinamash/posts/715098591862883

    Today, I will vote no on ‪#‎HR3361‬, the ‪#‎USAFREEDOMAct‬.

    I am an original cosponsor of the Freedom Act, and I was involved in its drafting. At its best, the Freedom Act would have reined in the government’s unconstitutional domestic spying programs, ended the indiscriminate collection of Americans’ private records, and made the secret FISA court function more like a real court—with real arguments and real adversaries.

    I was and am proud of the work our group, led by Rep. Jim Sensenbrenner, did to promote this legislation, as originally drafted.

    However, the revised bill that makes its way to the House floor this morning doesn’t look much like the Freedom Act.

    This morning’s bill maintains and codifies a large-scale, unconstitutional domestic spying program. It claims to end “bulk collection” of Americans’ data only in a very technical sense: The bill prohibits the government from, for example, ordering a telephone company to turn over all its call records every day.

    But the bill was so weakened in behind-the-scenes negotiations over the last week that the government still can order—without probable cause—a telephone company to turn over all call records for “area code 616” or for “phone calls made east of the Mississippi.” The bill green-lights the government’s massive data collection activities that sweep up Americans’ records in violation of the Fourth Amendment.

    The bill does include a few modest improvements to current law. The secret FISA court that approves government surveillance must publish its most significant opinions so that Americans can have some idea of what surveillance the government is doing. The bill authorizes (but does not require) the FISA court to appoint lawyers to argue for Americans’ privacy rights, whereas the court now only hears from one side before ruling.

    But while the original version of the Freedom Act allowed Sec. 215 of the Patriot Act to expire in June 2015, this morning’s bill extends the life of that controversial section for more than two years, through 2017.

    I thank Judiciary Committee Chairman Bob Goodlatte for pursuing surveillance reform. I respect Rep. Jim Sensenbrenner and Rep. John Conyers for their work on this issue.

    It’s shameful that the president of the United States, the chairman of the House Permanent Select Committee on Intelligence, and the leaders of the country’s surveillance agencies refuse to accept consensus reforms that will keep our country safe while upholding the Constitution. And it mocks our system of government that they worked to gut key provisions of the Freedom Act behind closed doors.

    The American people demand that the Constitution be respected, that our rights and liberties be secured, and that the government stay out of our private lives. Fortunately, there is a growing group of representatives on both sides of the aisle who get it. In the 10 months since I proposed the Amash Amendment to end mass surveillance, we’ve made big gains.

    We will succeed.

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