Improved USA Freedom Retains “Connection” Chaining and “Foreign Intelligence” Retention

Thanks to this NYT editorial, everyone is talking about Patrick Leahy’s version of USA Freedom, which he will introduce tomorrow.

Given what I’ve heard, my impression is the editorial is correct that Leahy’s bill is a significant improvement off of USA Freedumber.

That’s not saying much.

It tightens the definition for Specific Selection Term significantly (though there may still be limited cause for concern).

It improves the FISA Advocate (but not necessarily enough that it would be meaningful).

It improves transparency (but there’s one aspect of “improved” transparency that actually disturbs me significantly).

It pretends to fix concerns I had about the PRTT minimization, but I don’t think it succeeds.

Still, an improvement off of the USA Freedumber.

I’m not convinced that makes it an acceptable improvement off of the status quo (especially the status quo requiring court approval for each seed). That’s because — from what I’ve heard — Leahy’s bill retains the language from USA Freedumber on contact chaining, which reads,

(iii) provide that the Government may require the prompt production of call detail records—

(I) using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii) as the basis for production; and

(II) using call detail records with a direct connection to such specific selection term as the basis for production of a second set of call detail records;

Now, I have no idea what this language means, and no one I’ve talked to outside of the intelligence committees does either. It might just mean they will do the same contact chaining they do now, but if it does, why adopt this obscure language? It may just mean they will correlate identities, and do contact chaining off all the burner phones their algorithms say are the same people, but nothing more, but if so, isn’t there clearer language to indicate that (and limit it to that)?

But we know in the equivalent program for DEA — Hemisphere — the government uses location to chain people. So to argue this doesn’t include location chaining, you’d have to argue that NSA is satisfied with less than DEA gets and explain why the language of this bill specifically prohibits it. (The bill — as USA Freedumber before it did — requires NSA to use Call Detail Records at each step; that may or may not impose such limits.)

I remain concerned, too, that such obscure language would permit the contact chaining on phone books and calendars, both things we know NSA obtains overseas, both things NSA might have access to through their newly immunized telecom partners.

In addition, Leahy’s bill keeps USA Freedumber’s retention language tied to Foreign Intelligence purpose, allowing the NSA to keep all records that might have a foreign intelligence purpose.

Why, after having read PCLOB’s 702 report stating that, “when an NSA analyst recognizes that [a communication] involves a U.S. person and determines that it clearly is not relevant to foreign intelligence or evidence of a crime,” destruction of it, which is required by the law, “rarely happens,” would anyone applaud a Section 215 bill that effectively expands retention using that very same utterly meaningless “foreign intelligence” language? And with it may expand the permitted dissemination of such data?

The bill is definitely an improvement over USA Freedumber. But until someone explains what that connection chaining language does — and includes limiting language to make sure that’s all it will ever do — I have no way of knowing whether Leahy’s bill is better than the status quo. As it is, however, it is certainly conceivable Leahy’s bill will result in more innocent Americans ending up in the corporate store.

(I may have two more new concerns about Leahy’s bill, but I’ll hold those until I see what precise language the bill uses for them.)

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

3 Responses to Improved USA Freedom Retains “Connection” Chaining and “Foreign Intelligence” Retention

  • 1
  • 2
  • 3
Emptywheel Twitterverse
bmaz @jrosenbaum @AntonioFrench Not normally how it works!
48mreplyretweetfavorite
bmaz @tnyCloseRead Well if she is paying for it, at least now she can afford it!
2hreplyretweetfavorite
emptywheel @Krhawkins5 I was already noting that GOP here in MI might regret eliminating straight ticket voting.
5hreplyretweetfavorite
emptywheel RT @Krhawkins5: But of course one of them would always pick rock, one paper, and one scissors
5hreplyretweetfavorite
emptywheel RT @Krhawkins5: I was going to suggest that Rubio Bush and Kasich settle who becomes establishment GOP candidate with a rock paper scissors…
5hreplyretweetfavorite
emptywheel The only time that humans seem to exhibit the absolute self-interest economists insist they do is in Republican primaries.
5hreplyretweetfavorite
bmaz It's good that there are constants in the world https://t.co/tpkHwxK3Vg
5hreplyretweetfavorite
emptywheel @JasonLeopold Looks less dangerous than Brennan today after he got confronted w/the apology letter you refused to bury.
5hreplyretweetfavorite
bmaz RT @MattBruenig: woooo this is fun, is everyone having fun? I am https://t.co/lGCtexmsfK
5hreplyretweetfavorite
emptywheel @pzukerberg Probably as Jewish as Sanders: Sanders just hasn't replaced it with anything.
5hreplyretweetfavorite
emptywheel Thus far, can't think of an elected/press endorsement that has mattered. Still think Jeff Sessions might.
5hreplyretweetfavorite
July 2014
S M T W T F S
« Jun   Aug »
 12345
6789101112
13141516171819
20212223242526
2728293031