Clapper: We Need to Pass PATRIOT to Make Sure Apple Continues to Track Your Location

I’m very sympathetic to what Glenn and bmaz and Spencer and Julian have to say about the stupid fear-mongering around today’s PATRIOT extension. Julian’s explanation of how the grandfather clause would work is particularly important:

. A lapse of these provisions for a few days—or a few weeks—would have no significant effect. First, they’re all covered by a grandfather clause.  And contrary to what the New York Times implies, that doesn’t just mean that orders or warrants already issued under these authorities remain in effect.  Rather, as the Congressional Research Service explains (using the sunset deadline from prior to a short-term extension):

The grandfather clauses authorize the continued effect of the amendments with respect to investigations that began, or potential offenses that took place, before the provision’s sunset date.108 Thus, for example, if an individual were engaged in international terrorism on the sunset date of February 28, 2011, he would still be considered a “lone wolf” for FISA court orders sought after the provision has

expired. Similarly, if an individual is engaged in international terrorism on that date, he may be the target of a roving wiretap under FISA even after authority for new roving wiretaps has expired.

Got that? Every investigation already in progress at the time of sunset gets to keep using the old powers. Every new investigation where the illegal conduct in question began before the sunset date gets to keep using the old powers. Over the span of a few days or weeks, that’s going to cover almost every actual investigation. For the tiny number that don’t fall into those categories, if there are any at all in the space of a short lapse, investigators will be “limited” to relying on every other incredibly broad tool in the Foreign Intelligence Surveillance Act arsenal—with, of course, the option to use plain old criminal investigative authorities as well.

And James Clapper’s fearmongering letter–which was liberated by Sam Stein–is particularly absurd on most counts.

I mean, are we supposed to worry that the government can’t “conduct timely surveillance on a non-U.S. person ‘lone wolf’ terrorist such as an individual who has self radicalized and responds to international terrorist calls to attack the United States,” when the government has never had a need to use this authority, not even with Khalid Ali-M Aldawsari, who was a “a non-U.S. person ‘lone wolf’ terrorist such as an individual who has self radicalized and responds to international terrorist calls to attack the United States”?

I mean, if Clapper wants to make bullshit claims, he just encourages us to treat everything he says as bullshit.

That said, I wonder whether the underlying issue here isn’t the explicit powers–the ability to find out about “terrorist [and non-terrorist] purchases of bomb-making chemicals” with Section 215, for example, but instead the secret collection programs. Clapper says,

Important classified collection programs might be forced to shut down, causing us to lose valuable intelligence information that could be used to identify terrorists and disrupt their plots.

After all, we presume the government is collecting geolocation data not through an actual investigation related to an individual suspect and therefore grandfathered in under the terms Julian laid out. We presume the government is playing fast and lose with the word “related to” in Section 215.

And so it’s not so much that we’ll lose track of Muslims who buy hydrogen peroxide. It’s that the corporations being forced (we presume) to turn over geolocation data are going to respond to the very public lapse of PATRIOT and refuse to keep turning that data over.

(In this way, this fearmongering is precisely like the fearmongering used in February 2008 after the Protect America Act expired; the real issue was the complaints of the telecoms who were legally on the line.)

Of course, none of this means anyone ought to cave to the fearmongering. After all, if the legal basis for this collection is so sketchy that it wouldn’t qualify for the grandfathering that the real authorities do, the government probably ought not be relying on it, right?

Or maybe Reid is just channeling Dick Cheney because he’s anxious to start his long holiday weekend.


  1. bmaz says:

    Not to mention, this kind of fearmongering with bullshit deadlines to act is how the PAA got passed in the first place.

  2. bmull says:

    I already regard everything Clapper says as bullshit. Is there any evidence of his competence? Any at all? He was nominated for the DNI job by others in the security apparatus precisely because he has no clue.

      • JohnLopresti says:

        IAEA has a post in recent media stating both Assad and Ahmedinejad are in nations not clearly permitting inspections for compliance with international treaty organizations* efforts to keep nuclear tech well managed and mostly within the public sphere. The article I saw pretty much stated the 2007 bombing of a nondescript desolate site in Syr indeed was a NorthK variety reactor nearly completed based on some U isotopes and other findings reported in the sole permitted inspection upon which Iaea had data.

        • spanishinquisition says:

          I’m referring to Clapper’s Iraq war statement that Saddam hid his WMDs in Syria.

  3. WilliamOckham says:

    Here’s what the government is panicking about. They are still using the evil version of ThinThread to run a pen register on every telephone in the U.S., but they are using the un-PATRIOT Act’s business records provision to justify it. They are worried that if the Act expires, the courts would force them to shelf the program.

    Re-read Jane Mayer’s recent article about Thomas Drake and then look carefully at the difference between the Wyden/Udall language and the existing provision. Evil ThinThread operates in the gap between the current language and the Wyden/Udall language. That’s why it won’t ever get a vote.

  4. JohnLopresti says:

    The ancient congress* formulation of calea with its e9 one one provisions were similar to the origination of advertising companies* carte blanche employment of cookie caching, back in a time when websites of the commercial sort were grasping at many new ideas to compose into a profit construct rather than allow the web to be some new quasiacademic and abstruse dialoging medium. Government, and the public, acquiesced to the panoply of ways cookies could let businesses succeed, and many startups did just that based on the cookie paradigm. The unwatchdogging of location information, one of the topological substrates which makes cellphones work, similarly was a kind of unexamined beginning of cataloging cellphone instrument locations; and archiving those locational patterns for commercial reasons, and for a multiplicity of other innovative ways of mapping people*s whereabouts and interconnectivenesses. I read somewhere this week about RIM and Google both joining Apple in some government tete-a-tete about what*s fair for commercial purposes now that the locational information caches are causing a privacy stir; so, I would amend the post*s caption to include at a minimum those two other entities, Rim and Goog, that government thinks ought to help the discussion on what they should be doing more conscientiously as they piggyback new databases upon e91 one capabilities, which are mandated by calea to be installed physically in chipsets installed in every cellphone sold and operated in the US.

    As for the anxieties which drove creation of PatAct, the mix has changed, but the concerns are real, especially in the minds of, perhaps, some people living in countries which even in modern times continue to have what are called picturesquely tribal areas. The outcomes with some of those loosely gelled nationstates* leaders in the near term likely enhances the need for looking at PatAct as one instrument to preserve a sort of vigilance on the part of many international intell outfits only magnified by civil turbulence and ostensible governmental change, if some popular organizing activities widely reported in frontpage news in the past sixty days succeed, and in various configurations. Maybe what the revised PatAct needs to do is be explicit about the sorts of conditions globally which continue to increase the quotient of concern. It remains a little abstract, perhaps, for people accustomed to civil order; but I think it a well-placed direction of some kind of introspective vigilance. I wonder who is the tech mavin par excellence in the Senate these days. It is reading thoughtful insights like those afforded from friar W.O. that highlight congress* need to develop more acuity on tech. A PatAct is going to pass because it has video dramatic content and that is a baseline offering of modern media; but congress should be developing more sagacity in tech than the original calea-e9one1 passing congress. Sounds like a good project to assign to a forum which could include entities like NAS and IEEE; there are lots of commercial interests* businesses with potential vested interest, but government belongs in the equation, too. I have yet to glance at one of the interesting websites in academia on tech and privacy concerns, though plan to do so; sometimes a substantive post at that link takes a few days to appear when events, particularly legislative ones, might seem to indicate a post there would be timely.

  5. lareineblanche says:

    Slightly OT, but when the hell did our country become a “homeland”, anyway?
    From Clapper’s letter :

    Should the authority to use these critical intelligence tools expire, our nation’s intelligence and law enforcement… less capability… to detect and thwart terrorist plots against our homeland…”

    How can serious people talk like this?
    This language (reminiscent of German war propaganda) deliberately tugs on the sentimentality strings of people, making it easier to impose on them the Orwellian administrative tentacles whose stated purpose is to protect them.

    For me, too, the word “homeland” conjures a kind of antediluvian primitive nationalism (tribalism) based on blood and soil, not a people united by their devotion to political ideals like liberty and free speech.

  6. Dilapidus says:

    “Important classified collection programs might be forced to shut down, causing us to lose valuable intelligence information that could be used to identify terrorists and disrupt their plots.”

    Except of course, that is always true to some degree. No matter what the capability, if you take it away for any reason, it will have that effect. The only real difference here is that he can say “Important” and we have to believe him. Prove it Clapper.

    “Might be forced…” It’s always a shame when an illegal activity that has been so useful, needs to be shut down. It’s so sad to have the job of protecting America’s values and being hampered by them ..

  7. PeasantParty says:

    So they are using these programs to spy illegally and crossing up the lines between government and business to invade our privacy?

    The big mess that came out of the Chamber of Commerce expose is nothing compared to this. Evidently the Patriot Act and all those other in-between spy programs have the full approval and backing of Congress, let alone the DOJ!

    Somebody has not only stepped into the doo-doo on this, they are actually wallering in it!