If Patrick Leahy Wants to End Bulk Collection, He Needs to Amend His USA Freedom Act

The other day, the government obtained another Primary Order to collect all our phone records.

In response, Senator Patrick Leahy released this statement:

Congress must ensure that this is the last time the government requests and the court approves the bulk collection of Americans’ records.  We can make this a reality in the Senate if we act swiftly to pass the bipartisan USA FREEDOM Act.  Stakeholders from across the political and ideological spectrum have urged us for months to do just that.  We cannot wait any longer, and we cannot defer action on this important issue until the next Congress.  This announcement underscores, once again, that it is time for Congress to enact meaningful reforms to protect individual privacy.

I heartily agree with Leahy that the government has to stop obtaining authorization to collect Americans’ records in bulk.

But I think Leahy is misleading when he says we can “make this a reality” by passing USA FREEDOM Act — at least as currently written. While USA Freedom Act prohibits the government from collecting Americans’ phone records in bulk, it doesn’t prevent the government from collection Americans’ records from non-communications companies in what normal people would call bulk.

The language in the bill prohibiting the use of a company name as a selector only applies to electronic communication service providers.

(II) a term identifying an electronic communication service provider (as that term is defined in section 701) or a provider of remote computing service (as that term is defined in section 2711 of title 18, United States Code), when not used as part of a specific identifier as described in clause (i), unless the provider is itself a subject of an authorized investigation for which the specific selection term is used as the basis of production.

The limit of this language to communications companies makes it clear that the bill envisions the use of a corporate person (persons are permitted for traditional Section 215 orders) names — so long as they aren’t communications providers — as a selector. You can’t get all records from Verizon, as the government does, but you can get all one-side foreign records from Western Union, as the government also currently does.

In this case, the secret surveillance court has authorized the Federal Bureau of Investigation to work with the CIA to collect large amounts of data on international transactions, including those of Americans, as part of the agency’s terrorism investigations.

The data collected by the CIA doesn’t include any transactions that are solely domestic, and the majority of records collected are solely foreign, but they include those to and from the U.S., as well. In some cases, it does include data beyond basic financial records, such as U.S. Social Security numbers, which can be used to tie the financial activity to a specific person. That has raised concerns among some lawmakers who learned about the program this summer, according to officials briefed on the matter.

Former U.S. government officials familiar with the program said it has been useful in discovering terrorist relationships and financial patterns. If a CIA analyst searches the data and discovers possible suspicious terrorist activity in the U.S., the analyst provides that information to the FBI, a former official said.

[snip]

The data is obtained from companies in bulk, then placed in a dedicated database. Then, court-ordered rules are applied to “minimize,” or mask, the information about people in the U.S. unless that information is deemed to be of foreign-intelligence interest, a former U.S. official said.

Moreover, even if this is the only financial program that exists right now, the only limit on such programs would be the imagination of the Intelligence Community and the indulgence of the FISA Court. James Clapper and John Bates both objected to interpreting the transparency provisions of USAF to include similar applications to new targets. Particularly as the fearmongering surrounding ISIS increases, they’ll be ratcheting up the domestic spying again.

In any case, there is abundant reason to believe the government also collects the records of certain bomb precursors — fertilizer, acetone and hydrogen peroxide in large quantities, and pressure cookers — to cross-reference with suspect targets. And while the government collects flight information directly, there may well be bulk travel record collection as well.

The bill enables this kind of bulk collection in its “transparency” provisions as well. Those provisions only conduct individualized counts for communications related orders under traditional Section 215, not for non-communications related orders.

(D) the total number of orders issued pursuant to applications made under section 501(b)(2)(B) and a good faith estimate of—
(i) the number of targets of such orders;
(ii) the number of individuals whose communications were collected pursuant to such orders; and
(iii) the number of individuals whose communications were collected pursuant to such orders who are reasonably believed to have been located in the United States at the time of collection;

This is obviously all by design (otherwise these two passages wouldn’t have this symmetry). And perhaps all it does is serve to hide this one (probably two, maybe three) programs. But again, there’s no guarantee that won’t change in the future, and the transparency provisions don’t do enough to ensure  this would be properly briefed.

Of course the fix for this would be easy: extend the same prohibition against using a corporate person as a selector to all corporate persons, and extend the individualized reporting under traditional Section 215 to all Section 215 orders.

If Senator Leahy wants to prevent bulk collection, he needs to treat tangible things — the name of the provision at hand!!! — of all sorts, communications and non-communications — as the bill currently treats just communications-related orders.

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 Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, 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 in Grand Rapids, MI.

3 replies
  1. wallace says:

    quote”If Senator Leahy wants to prevent bulk collection, he needs to treat tangible things — the name of the provision at hand!!! — of all sorts, communications and non-communications — as the bill currently treats just communications-related orders.”unquote

    As if the NSA/CIA cabal would abide by it in the first place. In reality, the entire surveillance apparatus has expanded exponentially since the Church Committee “tried” to reign these scumbags. Notwithstanding having handed over the keys to the kingdom by virtue of the Central Intelligence and National Security Acts of 1947, NO ONE, not Congress, not courts, and no presidents, JFK included, have EVER been able to reign them in. In fact, given the Church Committee discovered, and outlawed CIA torture and assassination, then someone please tell me why the whole Torture report would exist now, hmmm? Or WHY Edward Snowden had to do what he did? I can tell you why. Exactly what I said. The DOD/CIA/NSA/FBI/DHS/DEA/ICE/ATF cabal IS the government. The mere fact that Feinstein, as a duly authorized Intelligence Committee member, was forced to give the report to the CIA for “review”, which now has been reduced to a redacted “summary” which will actually “vindicate” the entire insidious torture history of the scum at CIA. I don’t care anymore what people think. The living proof is staring people in the face, yet the smoke and mirror shell game continues, while the NSA/CIA control the entire three branches. Meanwhile, the Totalitarianism train continues down the track of coming tyranny.

    While I appreciate the daily analysis that proves the lies of the IC, NOTHING will stop these motherfuckers at this point. Senator Frank Church succinctly summarizes why…

    quote”“That capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn’t matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology. “unquote

    Technology. Right. In 1975. If only he had a crystal ball…..

    https://firstlook.org/theintercept/2014/09/14/nsa-stellar/
    He goes on…

    quote”I don’t want to see this country ever go across the bridge. I know the capability that is there to make tyranny total in America, and we must see it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.” unquote

    No return indeed. Our grandchildren will see the day of total tyranny. And spit on our graves. The entire infrastructure is already in place.

    • P J Evans says:

      I think you’re probably correct, and I also think that Congress will cheerfully go along with whatever the agencies want, because they’re being told it’s for the good of the country.

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