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Eleven (or Thirteen) Senators Are Cool with Using Section 702 to Spy on Americans

The Senate Intelligence Committee report on its version of Section 702 “reform” is out. It makes it clear that my concerns raised here and here are merited.

In this post, I’ll examine what the report — particularly taken in conjunction with the Wyden-Paul reform — reveals about the use of Section 702 for domestic spying.

The first clue is Senator Wyden’s effort to prohibit collection of domestic communications — the issue about which he and Director of National Intelligence Dan Coats have been fighting about since June.

By a vote of four ayes to eleven noes, the Committee rejected an amendment by Senator Wyden that would have prohibited acquisition under Section 702 of communications known to be entirely domestic under authority to target certain persons outside of the United States. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—aye; Senator Wyden—aye; Senator Heinrich— aye; Senator King—no; Senator Manchin—no; and Senator Harris—aye.

It tells us that the government collects entirely domestic communications, a practice that Wyden tried to prohibit in his own bill, which added this language to Section 702.

(F) may not acquire communications known to be entirely domestic;

This would effectively close the 2014 exception, which permitted the NSA to continue to collect on a facility even after it had identified that Americans also used it. As I have explained is used to collect Tor (and probably VPN) traffic to obtain foreigners’ data. I suspect that detail is what Wyden had in mind when, in his comments in the report, he said the report itself “omit[s] key information about the scope of authorities granted the government” (though there are likely other things this report hides).

I have concerns about this report. By omitting key information about the scope of authorities granted the government, the Committee is itself contributing to the continuing corrosive problem of secret law

As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report.

Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized.

That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners.

But I’m throwing Feinstein and Harris in with that group, because they voted against a Wyden amendment that would have limited how the government could use 702 collected data in investigations.

By a vote of two ayes to thirteen noes, the Committee rejected an amendment by Senator Wyden that would have imposed further restrictions on use of Section 702-derived information in investigations and legal proceedings. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—no; Senator Wyden— aye; Senator Heinrich—aye; Senator King—no; Senator Manchin— no; and Senator Harris—no.

While we don’t have the language of this amendment, I assume it does what this language in Wyden’s bill does, which is to limit the use of Section 702 data for purposes laid out in the known certificates (foreign government including nation-state hacking, counterproliferation, and counterterrorism — though this language makes me wonder if there’s a Critical Infrastructure certificate or whether it only depends on the permission to do so in the FBI minimization procedures, and the force protection language reminds me of the concerns raised by a recent HRW FOIA permitting the use of 12333 language to do so).

(B) in a proceeding or investigation in which the information is directly related to and necessary to address a specific threat of—

(i) terrorism (as defined in clauses (i) through (iii) of section 2332(g)(5)(B) of title 18, United States Code);

(ii) espionage (as used in chapter 37 of title 18, United States Code);

(iii) proliferation or use of a weapon of mass destruction (as defined in section 2332a(c) of title 18, United States Code);

(iv) a cybersecurity threat from a foreign country;

(v) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (42 U.S.C. 5195c(e))); or

(vi) a threat to the armed forces of the United States or an ally of the United States or to other personnel of the United States Government or a government of an ally of the United States.

Compare this list with the one included in the bill, which codifies the use of 702 data for issues that,

“Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,

  • Death
  • Kidnapping
  • Serious bodily injury
  • Specified offense against a minor
  • Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
  • Cybersecurity, including violations of CFAA
  • Transnational crime, including transnational narcotics trafficking
  • Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)

[snip]

Importantly, the bill does not permit judicial review on whether the determination that something “affects, involves, or is related to” national security. Meaning Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

The bill report’s description of this section makes it clear that — in spite of its use of the word “restriction,” — this is really about providing affirmative “permission.”

Section 6 provides restrictions on the Federal Bureau of Investigation’s (FBI’s) use of Section 702-derived information, so that the FBI can use the information as evidence only in court proceedings [my emphasis]

That is, Wyden would restrict the use of 702 data to purposes the FISC has affirmatively approved, rather than the list of 702 purposes expanded to include the most problematic uses of Tor: all hacking, dark markets, and child porn.

So while Feinstein and Harris voted against the use of 702 to collect known domestic communications, they’re still okay using domestic Tor commuincations they say they don’t want to let NSA collect to prosecute Americans (which is actually not surprising given their past actions on sex workers).

Again, they’re counting on the fact that the bill report is written such that their constituents won’t know that this is going on. Unless they read me.

Look, I get the need to collect on Tor traffic to go after its worst uses. But if you’re going to do that, stop pretending this is a foreign surveillance bill, and instead either call it a secret court bill (one that effectively evades warrant requirements for all Tor wiretapping in this country), or admit you’re doing that collection and put review of it back into criminal courts where it belongs.

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.

Failed Filibuster Reform Doesn’t Only Affect Partisan Relationships

As you’ve no doubt heard, Harry Reid, with the support of a handful of Senators, has killed the effort to reform the filibuster.

DDay has come out of retirement to issue an excellent rant on what this means for democracy. [Update] Here’s Kagro X on what the deal means in practice.

But I wanted to point to this exchange–between still-Senator John Kerry, who had been squeamish but open to reform, and Jim Risch, in the former’s confirmation hearing to become part of the Executive Branch. (1:25 and following)

Risch: I know you have a deep appreciation for the Constitutional process regarding foreign relations matters. There are a lot of us who are becoming increasingly concerned about all this talk about Executive Agreements as opposed to treaties that are negotiated by the Executive Branch as contemplated by the Founding Fathers and ratified, if appropriate, by this committee and eventually by the full Senate. Can you give us your view on matters regarding Executive Agreements. How do you feel about that and the bypassing of the C–

Kerry: Well, every Administration in history,

Risch: Appreciate that.

Kerry: –Republican and Democratic alike, have entered into Executive Agreements.

Risch: You agree the better process would be to submit it to this committee first?

Kerry: It would depend–I would say to you Senator that it would depend on what the subject matter is and what the sort of scope is and whether or not it falls under traditional treaty purview or it falls under Executive Agreement purview. I can’t, I don’t want to be commenting in some prophylactic way, one side or the other, without the specific situation in front of me. But I’m confident the President is committed to upholding the Constitution I don’t think he’s … you know, I think, I’ll say this to all of you. There’s no better way to guarantee that whatever concerns you have about the President’s desire to move on an Executive Agreement would be greatly nullified or mollified if we could find a way to cooperate on a treaty or on the broader issues that face the nation. But, you know, I think there’s a lot of frustration out there that some of the automatic ideological restraint here that prevents the majority from being able to express their voice has restrained people and pushed people in a way that they have got to consider other ways of getting things done.

Risch: And that’s exactly what concerns us, Senator Kerry, is the fact that it’s okay to do this through the regular order if it gets done, but if it’s not going to get done, the ends justify the means, it’s okay to end run around the Congress. And I gotta tell you I feel strongly that that is not the appropriate way to do it. The Founding Fathers didn’t say do this if it’s convenient and it’s okay not to do it if it’s not convenient.

Kerry: Is that right. I would agree with you and I’m not suggesting that that is the standard. But I am saying to you–and I think you know exactly what I’m talking about– that there are times around here, in recent days only, and I don’t want to get deeply into it, where certain arguments that are not necessarily based either on fact or on science or anything except the point of view of some outside entity have prevented certain things from being able to be done. [my emphasis]

Basically Jim Risch was objecting to Obama’s consideration of using Executive Agreements with other countries rather than treaties. In response, Kerry suggested that if the Republicans didn’t obstruct so much using the filibuster–preventing the majority from being able to express its voice–then Obama would be more likely to use Executive Agreements.

Frankly, Risch is defending not just the right of some right wing Senators to hold up treaties, but also some backassward policies. Kerry’s nod to science suggests one of the issues here is in climate negotiations (though that’s not the only one–Obama is also avoiding Congress on some horrible IP negotiations). To the extent that national security is a reason to bypass Congress (it’s not, but Republicans have argued it is), then climate change ought to qualify as well.

But Kerry–at almost precisely the moment Democrats chose not to pursue a way to bypass Republican obstruction and as part of the process to become part of the Executive Branch–used Republican obstruction as an excuse to bypass Congress.

And so the Democrat’s refusal to make the Senate more democratic will, in turn, lead the Executive Branch to be even less democratic.

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.

Lisa Murkowski Admits She Voted To Help Catholic Church Enforce a Doctrine She Ignores

As I noted last week, every single Catholic Senator save Susan Collins who voted for the Blunt Amendment last week appears likely to have relied on the birth control their Church prohibits to limit the size of their families. Lisa Murkowski, who has just 2 kids, was among the 10 Catholics who was using her position to help the Catholic Church enforce a doctrine she herself has ignored.

And in an interview claiming she now regrets that vote, Murkowski as much as admits that’s what she did. (h/t TPM)

What Lisa Murkowski told me I already suspected. She’s a moderate. She supports abortion rights and contraception coverage. She also doesn’t line up completely with the Catholic Church when it comes to birth control. She regretted her recent vote.

[snip]

I pointed out that her support for birth control conflicts with the Catholic mandate against it.

“You know, I don’t adhere to all of the tenets of my faith.

Now, she’s still spinning her vote (and her letter opposing Obama’s rule on contraception) as one in favor of religious freedom.

She’d meant to make a statement about religious freedom, she said, but voters read it as a vote against contraception coverage for women.

But it is not “religious freedom” to craft laws to help the Church enforce mandates that almost none of its adherents–and probably few, if any, of the Catholic Senators supporting the law–abide by. It is an improper use of government to aid a religious institution.

Not to mention, rank hypocrisy.

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.