As Snowden Leak Anniversary Approaches, Intelligence Community Prepares to Declare Victory

As June 5 approaches — and with it the one year anniversary of the first reporting on Edward Snowden’s leaks — the privacy community is calling supporters to redouble efforts to improve the NSA “reform bill,” which I call the USA Freedumber Act, in the Senate.

I explained here why the Senate is unlikely to improve USA Freedumber in any meaningful way. The votes just aren’t there — not even in the Senate Judiciary Committee.

Ominously, Dianne Feinstein just scheduled an NSA hearing for Thursday afternoon, when most of the privacy community will be out rallying the troops.

Unless the surveillance community finds some way to defeat USA Freedumber, the intelligence community will soon be toasting themselves that they used the cover of Edward Snowden’s disclosures to expand surveillance. The “Edward Snowden Put the NSA in Your Smartphone Act,” they might call it.

To prevent that, the privacy community needs to find a way to defeat USA Freedumber. It’s not enough, in my opinion, to point to the judicial review codified by USA Freedumber to accede to letting this pass. Not only doesn’t USA Freedumber end what most normal people call, “bulk collection,” but it expands collection in a number of ways.

That’s true, in part, because of the way the bill defines “bulk collection.” USA Freedumber only considers something “bulk collection” if it collects all of some kind of data (so, all phone data in the US). If NSA limits collection at all — selecting to collect all the phone records from Area Code 202, for example — it no longer qualifies as bulk collection under the Intel Community definition used in the bill, no matter how broadly they’re collecting.

Here’s a post where I lay that out.

To make things worse, the last version of the House bill changed the term “selection term” to make it very broad: including “entities,” “addresses,” and “devices” among the things that count as a single target, all of which invite mass targeting. I was always skeptical about “specific selection term” serving as the limiting factor in the bill; key language about how the FISC currently understands “selection term” remains classified. But I do know that Zoe Lofgren and others in the House kept saying that under the current definition of the bill the government could collect all records in, say, my Area Code 202 example. And if that’s possible, it means the phone dragnet under this “reform” may be little more targeted than upstream Section 702 collection currently is, which has telecoms sniff through up to 75% of US Internet traffic.

But it’s not just that the bill doesn’t deliver what its boosters claim it does.

There are 4 other ways that the bill makes the status quo worse, as I show in this post:

  • The move to telecoms codifies changes in the chaining process that will almost certainly expand the universe of data being analyzed — potentially significantly
  • In three ways, the bill would permit the use of phone chaining for purposes beyond counterterrorism, which isn’t currently permitted
  • The bill weakens the minimization procedures on upstream Section 702 collection imposed by FISC Judge John Bates in 2011, making it easier for the government to collect and keep domestic content domestically
  • The bill moves the authority to set minimization procedures for Pen Registers from FISC to the Attorney General (and weakens them significantly), thus eliminating the tool John Bates used to shut down illegal content-as-metadata collection

In my opinion, these changes mean the NSA will be able to do much of what they were doing in 2009, before what were then called abuses — but under this bill would be legalized — were discovered. That, plus they’re likely to expand the dragnet beyond terrorism targets.

For a year, privacy advocates have believed we’d get reform in response to Snowden’s leaks. For too long, advocates treated HR 3361 as positive reform.

But unless we defeat USA Freedumber, the Intelligence Community will have used the event of Snowden’s leaks as an opportunity to expand the dragnet.

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.

21 replies
  1. pdaly says:

    This sounds like a challenge Aaron Swartz would have welcomed. Wonder whether his website Demand Progress is up to speed on this issue.
    If yes, then I cannot find much in print on that website devoted to organizing an opposition or informational campaign.

    http://www.demandprogress.org/about/

    • wallace says:

      This sounds like a challenge Aaron Swartz would have welcomed.

      Perhaps. On the other hand, to me..this sounds like the death knoll for privacy and the 4th Amendment. We’ve been totally sold out by the very people who swore an oath to protect it.

      This spells war. Plain and simple.

  2. whatfor? says:

    Unless the surveillance community finds some way to defeat USA Freedumber, the intelligence community will soon be toasting themselves that they used the cover of Edward Snowden’s disclosures to expand surveillance…To prevent that, the privacy community needs to find a way to defeat USA Freedumber

    A big gigantic thanks from an average citizen for this excellent, clear, straight-talking article with all the background proof necessary in the links.

    For too long, advocates treated HR 3361 as positive reform

    Yes, indeed. I have been worried about that lack of critical acumen and where it was leading.

    Now what? … who has a plan?

  3. blueba says:

    I really appreciate this blog and I like so many others can see clearly because of the work reported here how our civil liberties have been taken away.

    However, as much as I hate to say it, the efforts to stop or prevent further theft of our humanity and weak and failing.

    I fear the battle has already been lost – that Snowden’s sacrifice will have been for nothing but a lot of kicking and screaming and nothing more.

    So far almost nothing has changed for the better.

    • wallace says:

      quote”I fear the battle has already been lost – that Snowden’s sacrifice will have been for nothing but a lot of kicking and screaming and nothing more. “unquote

      Overheard in post-Marshal Law FEMA camp.

      I fear the battle has already been lost – that Benedict Arnold’s sacrifice will have been for nothing but a lot of kicking and screaming and nothing more.

      Overheard during Cornwallis’ retreat at Yorktown.

  4. anonymous says:

    The weapons needed to defeat global mass surveillance will certainly include boycotts and strikes at a minimum. What did the struggle for civil rights entail? We’re facing a global military occupation. June 5 should be the first day of a new form of resistance.

  5. orionATL says:

    repeat the fact that the president has allowed spying to expand while hiding this fact behind words like “reform”, “transparency”, and “judicial oversight”.

    repeat the fact that the president has knowingly led us toward a surveillance state but away from one.

    repeat the fact that key congresspeople are lying about the need for additional spying and about the final bill being reform, i.e., reduction as well as control of spying.

    repeat the fact that the president, the generals, and specific congress people, like feinstein, ruppersberger, sensennbrenner, schumer, nadler, used threat of terror/cyberattack scenarios to justify increased govt spying for domestic police work.

    start this attack on the president, the congress, and the surveillance community generals now

    and don’t stop it for the next two years – until nov 2014 – whether the current bill is passed or not.

    remember:

    the surveillance buckos can no more keep themselves from committing excesses than can the similarly self-serving and warped “gun-freedom” buckos.

    the actions i’ve described above will prepare citizens to understand the excesses when they inevitably occurr.

    • orionATL says:

      correction:

      line 3 – “but away from one” should be “rather than away from one”.

      lines 6-8. should include generals hayden and alexander by name, among others.

  6. wallace says:

    quote”the surveillance buckos can no more keep themselves from committing excesses than can the similarly self-serving and warped “gun-freedom” buckos.”unquote

    I’m sure Elliot Rogers victims are glad there were no “gun-freedom buckos” between them and Rogers.

    I’m also sure this woman would be dead too.

    http://www.wsbtv.com/news/news/local/woman-shoots-would-be-home-intruders/nf9kS/

    Let’s hope your view convinces your opponent not to kill you should you ever be faced with similar circumstances.

    • orionATL says:

      you are a fool wallace. and a dumb one – dumb on the evidence that your arguments are repetitions of nra talking points and dumb on the evidence that you can only think individually, not in terms of large scale social activity.

      in addition to dumb, wallace, you are also , at best, emotionally insensitive, using the loss and deep hurt of others to protect your monomaniacle obsession with “gun freedom”.

      • wallace says:

        quote:”.. in addition to dumb, wallace, you are also , at best, emotionally insensitive, using the loss and deep hurt of others to protect your monomaniacle obsession with “gun freedom”

        Says one while redlining the DUMB-O-METER, notwithstanding his delusions of protecting himself / family with visions of man-up’ing his opponent should bad become worse. Speaking of fools..

  7. orionATL says:

    the problem with miss civilrightsandliberties is that, like many liberals, she is very uncomfortable when words like conflict, aggressive, fight start being used.

    the aclu, for example, does much good work, but little of it has impact on public attitudes. most of our contributions go to pay for genteel activities like lobbying and law suits. all-out political warfare through harsh public attacks on the political and legal power can make lobbying/court action much more difficult.

    in the case of the rapid growth of the surveillance state, i cannot see a single instance where suing or lobbying will result in anything more than the same shell game we have watched being played on miss civilrights&liberties in the congress and the courts for the last 12 years.

    it’s time for miss civilrights&liberties to retire to tea and crumpets with her lobbying/lawyering opponents.

    killing the surveillance state hydra requires wonder woman and an army of angry amazons.

  8. big al says:

    If it is passed, and as you say, it allows “the Intelligence Community will have used the event of Snowden’s leaks as an opportunity to expand the dragnet.”, I wonder what your opinion is as to whether this was a goal all along in the Snowden affair.
    Are you saying they’re using it as the situation allowed, or could they be using it as they wanted to all along?
    You know there are questions out there about Snowden. I’m not saying one way or another, I haven’t reached a conclusion yet. But there were people out there all along saying this was a psyop to do exactly what you’ve said may happen.

  9. GKJames says:

    Help me understand “how the FISC currently understands “selection term” remains classified.” What’s the rationale for keeping it secret? Unless, of course, it’s scrutiny by the public that the government is trying to avoid.

  10. anonymous says:

    What @emptywheel is saying is important. Snowden’s dissent is way out in front of the curve. Now is the moment in the movement for the civil liberties community to take tactical advantage and demand more than the Senate is likely to give.

  11. orionATL says:

    by the way, emptywheel’s 6/2 editorial on “doj cake-eating journalism” makes it clear to me that prez obama and senior congresspeople are conducting an all-out war on citizens getting any critical, secret information on government conduct from any source but the government.

    stop and think about this.

    greatly increased, and now entirely lawful, surveillance by the federal government,

    combined with laws to repress and punish any whistleblower or any journalist who feels it their duty to reveal government secrets suggesting government misconduct.

    pretty neat, huh?

    total information control, in real time, of u.s.citizens’ activities and communications.

    the u.s. government’s all-out assault on julian assange/wikileaks was not an oddity; it was a prototype.

    this two-bill pincers movement allowing increased spying and enforcing decreased reporting on secret government activity, should scare the hell out of most citizens.

    it won’t – not just yet.

  12. C says:

    Hit them where it matters: Money.

    (1) Political parties need money to exist as they are only businesses. As researchers in California have shown what they fear is an end to donations not votes. Thus calls to legislative offices should be made and make clear that you will never donate to the party again because of this.

    (2) Obama and the R’s (the D’s just do what he says) do fear loss of donations from providers such as Google. Thus boycotts of those providers should matter. Google has already been clear that they fear fallout from this. I for one have stopped using Google where possible already. Others should do the same.

    Yes they did not support everything that the NSA has done but neither have they acted to slow it down but have instead silently played along or had chummy closed door meetings where their own profits were the sole concern. Hitting them where it matters over this will at least convince them that they should bring pressure as well.

    • SirFiddlepopDigglesIII says:

      Thus calls to legislative offices should be made and make clear that you will never donate to the party again because of this.

      Oh honey…they don’t need your money. You and all your friends and all your facebook friends and all their facebook friends can all stop donating (as if most of you started, cmon) and Pierre Omidyar will fart out enough to cover it while shifting in his chair.

      Boycotting won’t do much either, imo.

      We need a new political party. A real one, with a simple platform (5 issues max, really, but all issues that the MSM and both parties won’t discuss on pain of death) that gun nuts and crunchy hippies can both get behind. And then we need to talk to our neighbors and run our candidates for local offices. Screw money. We need unemployed bodies to knock on doors in their spare time. We still have a Republic, if we’d care to use it.

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