Now that I’ve finally got around to reading the so-called transparency provisions in Patrick Leahy’s USA Freedom Act, I understand that one purpose of the bill, from James Clapper’s perspective, is to get Congress to ratify some kind of financial dragnet conducted under Section 215.
As I’ve laid out in detail before, there’s absolutely no reason to believe USA Freedom Act does anything to affect non-communications collection programs.
That’s because the definition of “specific selection term” permits (corporate) persons to be used as a selector, so long as they aren’t communications companies. So Visa, Western Union, and Bank of America could all be used as the selector; Amazon could be for anything not cloud or communications-related. Even if the government obtained all the records from these companies — as reports say it does with Western Union, at least — that would not be considered “bulk” because the government defines “bulk” as collection without a selector. Here, the selector would be the company.
And as I just figured out yesterday, the bill requires absolutely no individualized reporting on traditional Section 215 orders that don’t obtain communications. Here’s what the bill requires DNI to report on traditional 215 collection.
(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;
(3) INDIVIDUAL WHOSE COMMUNICATIONS WERE COLLECTED.—The term ‘individual whose communications were collected’ means any individual—
(A) who was a party to an electronic communication or a wire communication the contents or noncontents of which was collected; or
(B)(i) who was a subscriber or customer of an electronic communication service or remote computing service; and
(ii) whose records, as described in subparagraph (A), (B), (D), (E), or (F) of section 2703(c)(2) of title 18, United States Code, were collected.
Thus, the 215 reporting only requires the DNI to provide individualized reporting on communications related orders. It requires no individualized reporting at all on actual tangible things (in the tangible things provision!). A dragnet order collecting every American’s Visa bill would be reported as 1 order targeting the 4 or so terrorist groups specifically named in the primary order. It would not show that the order produced the records of 310 million Americans.
I’m guessing this is not a mistake, which is why I’m so certain there’s a financial dragnet the government is trying to hide.
Under the bill, of course, Visa and Western Union could decide they wanted to issue a privacy report. But I’m guessing if it would show 310 million to 310,000,500 of its customers’ privacy was being compromised, they would be unlikely to do that.
So the bill would permit the collection of all of Visa’s records (assuming the government could or has convinced the FISC to rubber stamp that, of course), and it would hide the extent of that collection because DNI is not required to report individualized collection numbers.
But it’s not just the language in the bill that amounts to ratification of such a dragnet.
As the government has argued over and over and over, every time Congress passes Section 215′s “relevant to” language unchanged, it serves as a ratification of the FISA Court’s crazy interpretation of it to mean “all.” That argument was pretty dodgy for reauthorizations that happened before Edward Snowden came along (though its dodginess did not prevent Clare Eagan, Mary McLaughlin, and William Pauley from buying it). But it is not dodgy now: Senators need to know that after they pass this bill, the government will argue to courts that it ratifies the legal interpretations publicly known about the program.
While the bill changes a great deal of language in Section 215, it still includes the “relevant to” language that now means “all.” So every Senator who votes for USAF will make it clear to judges that it is the intent of Congress for “relevant to” to mean “all.”
And it’s not just that! In voting for USAF, Senators would be ratifying all the other legal interpretations about dragnets that have been publicly released since Snowden’s leaks started.
That includes the horrible John Bates opinion from February 19, 2013 that authorized the government to use Section 215 to investigate Americans for their First Amendment protected activities so long as the larger investigation is targeted at people whose activities aren’t protected under the First Amendment. So Senators would be making it clear to judges their intent is to allow the government to conduct investigations into Americans for their speech or politics or religion in some cases (which cases those are is not entirely clear).
That also includes the John Bates opinion from November 23, 2010 that concluded that, “the Right to Financial Privacy Act, … does not preclude the issuance of an order requiring the production of financial records to the Federal Bureau of Investigation (FBI) pursuant to the FISA business records provision.” Given that Senators know (or should — and certainly have the ability to — know) about this before they support USAF, judges would be correct in concluding that it was the intent of Congress to permit the government to collect financial records under Section 215.
So Senators supporting this bill must realize that supporting the bill means they are supporting the following:
That is, Senators supporting this bill are not only supporting a possible financial dragnet, but they are helping the government hide the existence of it.
I can’t tell you what the dragnet entails. Perhaps it’s “only” the Western Union tracking reported by both the NYT and WSJ. Perhaps James Cole’s two discussions of being able to collect credit card records under this provision means they are. Though when Leahy asked him if they could collect credit card records to track fertilizer purchases, Cole suggested they might not need everyone’s credit cards to do that.
Leahy: But if our phone records are relevant, why wouldn’t our credit card records? Wouldn’t you like to know if somebody’s buying, um, what is the fertilizer used in bombs?
Cole: I may not need to collect everybody’s credit card records in order to do that.
If somebody’s buying things that could be used to make bombs of course we would like to know that but we may not need to do it in this fashion.
We don’t know what the financial dragnet is. But we know that it is permitted — and deliberately hidden — under this bill.
Below the rule I’ve put the names of the 18 Senators who have thus far co-sponsored this bill. If one happens to be your Senator, it might be a good time to urge them to reconsider that support.
Patrick Leahy (202) 224-4242
Mike Lee (202) 224-5444
Dick Durbin (202) 224-2152
Dean Heller (202) 224-6244
Al Franken (202) 224-5641
Ted Cruz (202) 224-5922
Richard Blumenthal (202) 224-2823
Tom Udall (202) 224-6621
Chris Coons (202) 224-5042
Martin Heinrich (202) 224-5521
Ed Markey (202) 224-2742
Mazie Hirono (202) 224-6361
Amy Klobuchar (202) 224-3244
Sheldon Whitehouse (202) 224-2921
Chuck Schumer (202) 224-6542
Bernie Sanders (202) 224-5141
Cory Booker (202) 224-3224
Bob Menendez (202) 224-4744
Sherrod Brown (202) 224-2315
This is an op-ed; opinion herein is mine. ~Rayne
A tweet yesterday by technology-futurism pundit and sci-fi writer Bruce Sterling hinted at the problem of technology industry and journalism, with regard to politics:
The tweet was spawned by a profile in The New York Times of Newark NJ’s mayor, Cory Booker, who has used social media regularly as a community outreach tool. In addition to bestowing the inapt label “A Politician From the Future,” a critical problem in this article is the labeling of Cory Booker as appealing to “the Googly-Facebookish wing of the [Democratic] party.”
Except that Cory Booker is extremely proficient at using microblog platform Twitter, and Twitter has a significantly different demographic profile with regard to race and age. Further, Twitter’s 140-character post limitation has been much easier to use on mobile devices, fitting a mobile business model long before either Google or Facebook.
It’s not clear what Sterling thought about the NYT’s article, though in a reply he expanded and lumped together the “Twittery-Googly-Facebook” crowd, suggesting he’s missed both NYT’s error while not understanding the demographics and politics at play.
Both Sterling and NYT fail to take seriously Booker’s actions themselves; they look at the medium, not the message, which is that Booker’s deeds are like that of an old-school Democrat, the kind we used to have before the corporatist Democratic Leadership Committee co-opted the Democratic Party to serve somewhat more liberal overlords.
Booker’s use of Twitter was carefully noted by TIME back in 2010, after Booker had taken personal, hands-on action to help constituents during a snowstorm. It wasn’t a collection of photo ops for a campaign (as another mayor-candidate demonstrated in another city), but actual response to situations where elbow grease and a shovel were required.
What both NYT missed, besides categorizing Booker as belonging to the “Googly-Facebook” portion of the Democratic Party:
— Booker’s efforts with regard to his one-on-one interactions with constituents do not compare with a considerable portion of the party to which he belongs;
— His actions are highly transparent, his words sync with his deeds right there in the public forum of Twitter;
— Booker uses “big data” to make and justify decisions; “big data” is merely a contemporary expression of polling data used in the near-term past and present.
It’s not clear that Sterling notes these key points, as focused as he was on the social media component and NYT’s representation of Booker as a politician from the future. →']);" class="more-link">Continue reading
“He’s Ray Kelly, so what’re you gonna do? I mean, he’s all-knowing, all-seeing,” Christie said.
“And I don’t know all the details yet, but my concern is, you know, why can’t you be, you know, communicating with the people here in New Jersey, with law enforcement here in New Jersey. Are we somehow not trustworthy?” said Christie.
“This is New York Police Department. I know they think their jurisdiction is the world. Their jurisdiction is New York City. So if they’re going to leave their jurisdiction and go to investigate a case in another jurisdiction, it could be dangerous,” Christie said. “This is the way law enforcement people get hurt or killed, is when they’re not cooperating with each other, not communicating with each other.”
“I’m not saying they don’t belong in New Jersey, but tell us! Share it with the appropriate law enforcement agency,” Christie said. “My concern is this kind of obsession that the NYPD seems to have that they’re the masters of the universe.”
Then there’s the spectacle of King defending Ray Kelly as if the latter is a shrinking violet, with neither access to the press nor taste for a fight himself.
Rep. Peter King, chairman of the House Homeland Security Committee, said Gov. Chris Christie crossed a line when he mocked Police Commissioner Ray Kelly as “all-knowing, all-seeing” and said the NYPD’s intelligence operation in Newark may have been “born out of arrogance.”
“I just found it a real disappointment the way he was conducting himself, the way he was taking cheap shots at Ray Kelly,” King said.
Sure, aside from Booker, who seems genuinely concerned either with his actual constituents or appearing that way, this is a giant pissing contest between men defending their turf.
Part of me wonders why most of these men have reacted so strongly. Christie, after all, must have close ties to Newark’s FBI officers from his time as US Attorney. That seems to be what this dig is about:
“His main objection seems to be that he wasn’t … brought in. But the fact is that he wasn’t governor. He was U.S. attorney. And I’m not aware of any major terror plots that he ever uncovered while he was U.S. attorney in New Jersey.”
(King forgets, of course, that the NYPD didn’t find any of the major terrorist attacks since 9/11–street vendors and the FBI did.)
Part of me wonders whether Kelly, channeling J. Edgar Hoover as he increasingly seems to be doing, has some dirt on King and Schumer to make cow them like this.
But the real sick part of my personality can’t help but visualize this ending in a giant wrestling match pitting King and Schumer against Christie and Booker. In fact, I’m even thinking of taking bets.
Sorry about the abundance of brain bleach posts this morning folks–it must be the weather.
The NYDN and NYPost continue their uncritical defense of the NYPD’s spying on residents of other cities. In response to continued outrage that NYPD’s officers profiled Newark’s and Paterson’s Muslim community, the New York fearmonger papers’ response is basically a taunt that New Jersey should be grateful the NYPD has invaded their state because New Jersey can’t prevent terrorism on its own.
What is the matter with New Jersey politicians that they are raising a stink because the NYPD keeps an eye out for terrorists on their turf?
Have Gov. Chris Christie and Newark Mayor Corey Booker forgotten that 746 residents of the Garden State were killed in the terrorist attacks of 9/11?
Have they forgotten that ringleader Mohammed Atta met with co-conspirators in Newark?
Have they forgotten that the van used in the 1993 World Trade Center bombing was rented in Jersey City?
(The NYDN, which claims to have read the profile reports on things like girls’ schools, seems to have missed that none of the profiling reports we’ve seen from the NYPD have targeted any of the kinds of NJ establishments the terrorists have used in the past.)
But as a MI resident, what I’m really amused by is the NYPD boosters’ claim that Newark is “overmatched” and “incapable.”
So why wouldn’tthe NYPD bring its unmatched skills to bear in Newark, whose overmatched police department is simply incapable of monitoring threats as they develop far out of sight?
I can remember only one police department in recent years which has been “overmatched.” And that’s the NYPD, when faced with the prospect of hosting a terrorist trial in Manhattan.
When DOJ first announced plans to try Khalid Sheikh Mohammed and the other 9/11 plotters in New York, Ray Kelly started making the same kind of complaints about not being consulted as New Jersey’s politicians are making now.
NYPD Commissioner Ray Kelly said the Justice Department did not consult the city officials before deciding to send Khalid Sheikh Mohammed and four others to New York City for trial.
“There was no consultation, no consultation with the police department. That decision was made. We were informed,” Kelly said Tuesday.
When asked if the NYPD should have been asked about security and other considerations in advance of sending the accused terrorist to the scene of the attack, Kelly said,” The fact is we weren’t asked. And we will make the best of a situation. We weren’t.”
At first Kelly said the NYPD would be up to the task. But then he started rolling out a plan to effectively militarize lower Manhattan and demanded first $90 million then $200 million to pay for his war zone. Ultimately, the DOJ gave up the plan for a civilian trial.
Because Ray Kelly wasn’t up to the task of hosting a terrorist trial, Khalid Sheikh Mohammed has had at least two years added to his life.
This is the Al Muslimaat Academy, a school for fifth through twelfth grade girls certified by New Jersey’s Department of Education. It is one of the many locations in Newark spied on by Ray Kelly’s spies in 2007.
They considered it a “Madrassah.”
They even mapped it out, along with a different school teaching first through fourth graders. I guess in case they needed to find a bunch of Muslim kids quickly.
Today’s installment of the AP’s CIA-on-the-Hudson series takes us out of the city altogether, to Newark, where the NYPD mapped out the Muslim community without even informing with Cory Booker, Newark’s Mayor, first.
According to the report, the operation was carried out in collaboration with the Newark Police Department, which at the time was run by a former high-ranking NYPD official. But Newark’s mayor, Cory Booker, said he never authorized the spying and was never told about it.
“Wow,” he said as the AP laid out the details of the report. “This raises a number of concerns. It’s just very, very sobering.”
Booker says he will investigate.
After the AP approached Booker, he said the mayor’s office had launched an investigation.
“We’re going to get to the bottom of this,” he said.
Now, the NYPD might be forgiven for looking for terrorists in Newark. After all, in the summer of 2001, the 9/11 hijackers used Newark as a staging ground to prepare for their attack.
But they didn’t, as far as we know, frequent mosques at all. They spent time in cheap motels and cheap restaurants, gyms, and cybercafes. They had the operational security to do most of these things in separate places, heading to Patterson and Wayne.
They certainly didn’t plot out 9/11 in a girls’ school.
All of which shows, yet again, how futile this whole program is and was. Futile, that is, if you’re actually trying to stop terrorism. It’s perfect if you want to cow members of an entire faith by criminalizing their schools, butchers, and places of worship.