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.)

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

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bmaz Oops: After Threatening Hacker With 440 Years, Prosecutors Settle for a Misdemeanor | WIRED http://t.co/BjOkNbK7p5
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bmaz @PatrickCToomey @csoghoian @WSJ @dannyyadron Jeebus, the All Writs Act?? Owsley is right though, notable that magistrate issued opinion.
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bmaz RT @DavidBerthold: Huge storm rages through Brisbane flooding shopping centres and pushing sharks into the CBD. #brisbanestorm #bnestorm ht…
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bmaz @arcsine @mirriam71 @LisaBloom From another prosecution? No.
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bmaz I love that Richard Sherman is sitting there eating Madden turkey on Harbaugh's logo. Couldn't happen to a bigger turkey than Harbaugh.
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bmaz @arcsine @mirriam71 @LisaBloom Since he voluntarily appeared, yes. Even if he later refused, his GJ testimony likely admissible against him.
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bmaz RT @LisaBloom: Wilson at station right after shooting says he told cops he'd been punched in the face. Their response: "where?" Bc they cdn…
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bmaz .@mirriam71 @LisaBloom No, and neither Wilson nor any other defendant owes that. But Bob McCulloch sure does. He and Nixon owe many answers.
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emptywheel RT @EFF: We're thankful to Senator @MarkUdall, for years of defending digital rights on the Senate Select Committee on Intelligence. We'll …
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emptywheel Confession: reading abt struggles of shitty airports makes me thankful. http://t.co/4quSITgumg Next up? All NYC airports!
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emptywheel @NC_Prime Brady and I pretty much coincided (if that can happen w/backup) tho only year I got tx was 99. @attackerman
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emptywheel @attackerman It's okay. I come from an extended family of 5 PSU grads and 1 PSU prof, but do okay.
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