Every Senator Who Supports USA Freedom May Be Affirmatively Ratifying a Financial Dragnet

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;

The bill defines “individuals whose communications were collected” this way:

(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:

  • The interpretation of “relevant to” to permit the government to collect all of a given kind of record in the name of a standing FBI terrorism investigation.
  • The use of non-communication company corporate person names, like Visa or Western Union, as the selector “limiting” collection.
  • The use of Section 215 to collect financial records.
  • Not requiring the government to report how many Americans get sucked up in any financial (or any non-communications) dragnet.

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



8 replies
  1. orionATL says:

    these are mostly democrats? shameful.

    with democrats supporting this in number, my prior suggestion of pining spying on obama and the dems prior to this years elections seems more appealing to me.

    yes the short term consequences with a republican senate might be terrible, but the fuck-you-dem-voters democratic party would have learned a lesson it badly needs to learn.

    • emptywheel says:

      Yes. Because Democrats believe, correctly, this is the best we can get right now.

      Clapper is not going to roll back a single one of his programs aside from the phone dragnet. He’s just not.

      So if Congress wants to do that they’re going to have to find a way to force him to.

      Or, force him and the providers to do it without the protection of Congress.

      • orionATL says:

        yes, “the best we can do for now” is THE guiding principle for any effective politician in an institution where incrementalism is practiced.

        but where is the good in any of these bills? if it exists it is trivial.

        when “the best we can do” involves legalizing domestic spying in multiple interlocked (deliberately) ways, what could possibly even be “good” or better than the past? getting congressional approval of multiple legal aspects of spying is by itself a monumental victory for authoritarianism and a first order defeat for constitutional principles.

        there is nothing more important in any of these bills than the sipe legalization by congress of multiple schemes for spying. what we have is congress being coopted by the executive in order to coopt a willing judiciary.

  2. wallace says:

    So, this is the “best we can get”. Fucking priceless. Meanwhile, the date of Murka’s final legalized decent to the bottom of the Totalitarianism abyss will come and go with out a shred of outrage from the sleeping 99%. Shame on the entire lot of them. They are fucking useless.

    On the day this bill passes, I’m writing a letter to my grandchildren. They deserve to know which generation totally failed them, and who failed to protect the Constitution, notwithstanding the America I was born into. I’m also going to send a “Congratulations” card to every single Congressional scumbag who helped turn this nation into the very world Orwell envisioned. And then I’m going to get drunk, and kiss this nation goodbye. It will no longer be the Republic I pledged allegiance to for 12 stinking years.

  3. Bitter Angry Drunk says:

    So who lives in a state where both “liberal” senators support this abomination? [Raises hand.]

    At least it’s cold enough here that I can start drinking cognac again…

    • emptywheel says:

      Please please please do call them (whichever two-USAF supporter state you’re in). It would be useful for them to hear that concern.

  4. Mark J. Novitsky says:

    My name is Mark J. Novitsky. Tragically, I am a “Pre- Ed Snowden” National Security Whistleblower along with people like actual NSA Senior officials Russell Tice, William Binney, Thomas Drake and others. As bad as you think it is it is WORSE. Go back to the 1970’s and the Church Commission and COINTELPRO. NONE of this (Total Information Awareness) went away…it was re-branded / OUTSOURCED to Reagan 1981 XO 12333 DOD / IC “Front / Cover” companies. Freedom and Privacy effects every aspect of our lives…you can tell when a society is turning / has turned into a dictatorship by how they treat TRUTH TELLERS. My former employer, Tele Tech Holdings (TTEC) is a MASSIVE USG IT / TeleCom BPO that poses a bigger threat than PRISM. Go to the Yahoo Financial Message Board for TTEC. I am FPVSFF…”In a time of universal deceit, telling the truth becomes a revolutionary act.” – George Orwell – “It’s dangerous to be right when the government is wrong.” Voltaire

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