Obama’s Other Sessions Amendments

In my last post, I described how the Obama Administration had gotten Jefferson Beauregard Sessions III to introduce an amendment to the PATRIOT Act essentially gutting minimization in the case of pen registers and trap and trace devices. This means they can bulk collect your communication information, find out who you communicate with and for how long, keep that information, and distribute that information, unless a judge “in extraordinary circumstances” tells the government they can’t do so. If you haven’t read that post go do so.

Since that was such a stinker, I figured I ought to figure out what else the Obama Administration had snuck in under cover of the loathsome Sessions’ skirts.

There are basically two other amendments. As I explained, DiFi’s substitute for the PATRIOT renewal made Section 215 worse by requiring an applicant to show only some cockamamie theory on how the records are relevant to international intelligence; the judge doesn’t get to determine whether that theory makes sense or not. But DiFi (with the help of Pat Leahy) put in an exception for librarians, because librarians have a way of getting pissy when the government starts conducting fishing expeditions. One of Sessions’ amendments limits that exception to circulation records and patron data, presumably making it clear that the government can do the same kind of data mining on library computers as they do on every other computer.

The other amendment–which apparently was submitted in two amendments that are virtually identical (one, two)–plays a nice trick with NSL gag orders. As a reminder, NSLs are subpoenas that require no judicial review. The Special Agent in Charge of an FBI office can approve them, based on a statement that shows an agent’s cockamamie theory relating the desired records to an international intelligence investigation. With that subpoena, the agent can get certain kinds of financial records under a gag order.

Now, you may recall that courts around the country have found that gag order to be unconstitutional. So, presumably to fix a Constitutional deficiency, DiFi added language that would have required the FBI to tell financial institutions when the gag order was no longer necessary. For each class of financial provider in question, the bill included language like this:

(4) TERMINATION.—If the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the Federal Bureau of Investigation shall promptly notify the wire or electronic service provider, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

That is, DiFi’s version of the bill basically said, “when you no longer need a gag order (either because you’ve indicted the person in question or you’ve determined the person is totally innocent, you’ve got to tell the service provider that the gag order is no longer in place, and if the service provider feels like it, they can tell their customer.” Sessions’ Obama’s amendment effectively changes that to say:

(4) TERMINATION.—In the case of any request for which a recipient has submitted a notification under paragraph (3)(B), if the facts supporting a nondisclosure requirement cease to exist, an appropriate official of the Federal Bureau of Investigation shall promptly notify the wire or electronic service provider, or officer, employee, or agent thereof, subject to the nondisclosure requirement that the nondisclosure requirement is no longer in effect.

That “submit a notification” refers to the process by which providers legally challenge gag orders. That means that the FBI only has to tell a service provider that a gag order is no longer in effect if the service provider, when they first got the request from the FBI, said, “I’d like to spend some money paying my lawyer to challenge this gag order in court.” Now, this amendment was billed as an attempt to save the FBI from some unnecessary paperwork. And I can imagine when you’re issuing NSLs at the rate that the FBI is doingl, it would be a pain in the ass to chase down every gag order once it expires.

But the real effect of this is to make it highly unlikely that these gag orders will be lifted, in practice. Frankly, it was already unlikely that a bunch of banks and ISPs would willingly offer up to their customers that they had cooperated with the FBI in spying on them. Now, it’s saying that only those banks and ISPs that are willing to fight this legally will ever even know when those gag orders expire, meaning just a teeny fraction of businesses getting NSLs will be telling their customers they helped the FBI to spy on them.

Which has the net effect–I’m sure the Obama Administration hopes–of fixing the Constitutional problems with gag orders while, effectively, keeping those gag orders in place. And, at the same time, preventing a bunch of innocent Americans from learning that in the age of Obama, the government can spy on a wide range of innocent people.

Update: From my liveblog I now see what the duplicate amendments (or one of them) is supposed to do. It’s supposed to make sure that Article III Judges have absolutely no discretion at all to overrule the FBI’s self-certification that something merits a gag order.

I’m sure that won’t be abused.

Here’s all five of the Amendments Sessions introduced with what they do.

091008 Sessions Library HEN09A06: Limits the exception for libraries on Section 215 orders

091008 Sessions NSL Notice HEN09A04, 091008 Sessions NSL Notice HEN09A13: Limit the circumstances in which the FBI has to tell businesses it has issued a National Security Letter to that a gag order is no longer necessary.

091008 Sessions Pen Register HEN09A10, 091008 Sessions known to concern HEN09999: Gut minimization with pen registers.

16 replies
  1. earlofhuntingdon says:

    “Makes a determination” language is also subject to considerable abuse, depending on the process for memorializing it. What governs: the dates of meetings, letters, “concluding” an investigation, making only “draft” conclusions while delaying final ones?

    As long as you’re consistent, you’re not discriminating and this might survive challenge. Any challenge itself would have to survive a similar gauntlet as victims of illegal spying. A federal judge who has read and retains respect for the Constitution, and who doesn’t still hope to be elevated to a higher court, gets and keeps jurisdiction, the parties have standing, the judge cries foul on the process and the Supremes don’t overturn her. I’d rather play craps in Vegas.

    Limiting notifications only to those providers who fight is adding suspenders to a couple of wide belts. It’s the multiple redundant levels of protection that should scare the pants off us, because the government really, really doesn’t want us to know what it’s doing with our information. (Nor do telecoms and ISP. The telecoms, at least, make billions just from using the marketing data they glean from it – on top of what they bill you.)

    If I didn’t know better, I’d say the administration had hired a lot of former bank lawyers to draft this sort of language – the ones who no longer draft your credit card “agreement” or “disclosure” statement.

  2. emptywheel says:

    Here’s what’s in there on the make a determination.

    (i) a danger to the national security of the United States;
    (ii) interference with a criminal, counterterrorism, or counterintelligence investigation;
    (iii) interference with diplomatic relations; or
    (iv) danger to the life or physical safety of any person.

    That is, if a SAC or higher says any of these conditions are present, then the gag order remains in place.

    • Jeff Kaye says:

      Absolutely superlative work, EW!

      As for catchalls, per bmaz, each of these four determinations seems as such to me.

      What is a danger to the national security of the U.S.? Maybe someone who speaks out politically against troops in Afghanistan?

      What constitutes interference with a counterterrorism or counterintelligence operation? Maybe someone who speaks out or organizes against what they feel are unconstitutional governmental actions undertaken as part of a counterterrorism or counterintelligence operations?

      Could interference with diplomatic relations include publicizing the collaboration of foreign countries in the rendition torture program?

      Is it contributing to the danger to the life or physical safety of any person to report on their activities in a critical fashion? (Actually, I find this last one harder to prove, as I assume one must show evidence that safety is threatened to a specific person, while “national security” or secret counterterrorism/counterintelligence operations, or something amorphous like diplomatic relations, are a red flag to wave in front of the bull of the surveillance state.)

  3. earlofhuntingdon says:

    Thanks. Those are topics and conclusions of fact. Reversing them would also require making a determination. I was commenting on how the process for making a determination, memorializing it, can be abused so as to delay a finding, and so delay reversing a gag order. When it works in the government’s favor, putting on the gag, the process can be made to work promptly.

    • emptywheel says:

      Yeah, I well imagine. I don’t know the case histories where this has been found to be unconstitutional. I do wonder whether this will fix the problem. It’s clearly just another bogus rule.

  4. emptywheel says:

    Jeebus. It appears that one of the dupe amendments is supposed to say the judges have absolutely no discretion to overrule the FBI’s self-certification that something merits a gag order.

    But don’t worry, I’m sure that won’t be abused.

    I don’t know who’s going to get to DC with their pitchforks first. Us? Or a bunch of judges appointed by George W Bush?

  5. Peterr says:

    DiFi (with the help of Pat Leahy) put in an exception for librarians, because librarians have a way of getting pissy when the government starts conducting fishing expeditions.

    I’m curious as to how the bill defines “librarian.”

    I’ve got a LOT of books on my shelves, and allow people to borrow them so long as they bring them back. I’ve also been known to get pissy when the government starts conducting fishing expeditions*.

    Does this mean I can tell the NSA that I’m exempt?

    * Every angler knows you’ve got to get a fishing license if you want to go fishing. Where’s a good fish & game warden when you need one?

  6. skdadl says:

    Would something as banal as discussing here what we know, eg, or have been led (by three British High Court judges) quite a long way to suspect about Moroccan-British-U.S. collusion in a particular torture case constitute “interference with diplomatic relations”?

      • skdadl says:

        Well, I am honestly unsure. I was thinking that maybe it would take someone who has insider knowledge and was willing to do an end-run around the Miliband-Clinton pact with the actual text they are trying to suppress, which obviously most of us can’t do (although heaven knows, we’re so close that it’s silly to keep up the fiction).

        • earlofhuntingdon says:

          This type of language is attractive to governments because of its vagueness, which is what makes it a threat to civil liberties.

          On its face, there’s no minimum threat or standard of harm that must be exceeded before the exception applies. That leaves enormous discretion in the hands of the administration. Since this is largely a standard for an internal process, it would only occasionally become known to the discloser of information to the government, to the persons whose information had been disclosed, or to a court. Which means the administration would rarely, if ever, be challenged on its interpretation.

          This is not in keeping with his promises of a more open, transparent government that pays due respect to the rights of its citizens. The arms of the national security state remain unimpeded by Mr. Obama.

          Did Mr. Obama teach Leo Strauss at Chicago and not constitutional law, or did candidate Obama fall asleep once too near the seed pod taken out the rear of Mr. Cheney’s limo?

    • Mary says:

      It would, but the context is that FBI is gagging people under NSLs and Sec 215 records from talking about the info that they have handed off to FBI.

      Since the torture tit suckers at DOJ don’t give a rats ass about investigating torture and their colleagues, no matter how creepy or which children have been left traumatized, tortured, orphaned or dead bc of their actions – I’m not sure where that gets you though. It’s not like FBI is accessing business records to investigate Executive branch crime and they manage to keep anyone from talking about Executive branch crime in so many other ways, from state secrets invocations to Fox News noise machines to threats against British national security to bombs dropped and children disappeared – that I’m not sure how nefarious that aspect (interference with diplomatic relationships) would be. If they were investigating things like a British MP with US ties to get good dirt on them to blackmail them – the kind of function you can see FBI eager to share with CIA and IRA and garden variety blackmailers – maybe it might be relevant. But far and away, the more frequent use of the “diplomatic relations” cover is when the Exec has been colluding with a foreign gov to engage in depravity than when it is investigating such a foreign gov.

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