USA F-ReDux: Dianne Feinstein Raises the Data Handshake Again

As I noted last November, in her defense of USA Freedom Act last year, Dianne Feinstein suggested the telecoms (principally, Verizon) had agreed to retain their data for longer than their business purposes required without any mandate — what I dubbed the “data handshake.”

On Tuesday, Nov. 18, Feinstein explained how she had resolved the problem presented by telecoms like Verizon that don’t hold these records as long as the NSA currently does. She and Chambliss had written the country’s four biggest telecom companies a letter — she didn’t say when — asking whether the companies would retain phone records longer than they currently do. Two said yes; two said no. “Since that time, the situation has changed,” Feinstein said. “Not in writing, but by personal testament from two of the companies that they will hold the data for at least two years for business reasons.” President Barack Obama even vouched for the telecom companies’ willingness to hold the data. “The fact is that the telecoms have agreed to hold the data. The president himself has assured me of this,” Feinstein said.

Taken in context, Feinstein’s comments reveal how proponents of the USA Freedom Act solved the intelligence community’s problem with the reform bill — that the period of time that records would be held would shrink dramatically. Rather than a legal mandate requiring that telecoms hold onto the data — which some members of the Senate Intelligence Committee demanded in June — the reform bill would use a “data handshake.”

The terms of the data handshake are the most interesting part. This promise is not in writing. According to Feinstein, it is a “personal testament.” (And of course it wasn’t in the bill, where privacy advocates might have objected to it.) The telecom companies could say they were retaining the data for business purposes, though, until now, they’ve had no business purpose to keep the records.

While some, like Bob Litt, have suggested one challenge for having telecoms retain phone records concerned whether telecoms would retain enough of their call records to do pattern analysis, the issue of data retention has largely been unspoken in this round of debate over USA F-ReDux.

But Dianne Feinstein just raised it again this morning on Meet the Press, again endorsing a “data handshake” behind USA F-ReDux and seemingly referring to the assurances the President got from telecoms they would keep the data.


Senator, while I have you, the Patriot Act, obviously the big, bulk data collection was struck down, in Court. Not quite saying it was unconstitutional, basically saying that the law doesn’t cover what the administration has said it covers, which is this idea of bulk data collection. And says, “If Congress wants to be able to do this, then they need to explicitly pass a law that forces telephone companies to do this or not.” Where are you on this? Are you willing to pass a specific law that allows for bulk data collection, whether held by the phone companies or the government?


I think here’s the thing. The president, the House and a number of members of the Senate believe that we need to change that program. And the way to change it is simply to go to the FISA Court for a query, permission to go to a telecom and get that data. The question is whether the telecoms will hold the data. And the answer to that question is somewhat mixed. I know the president believes that the telecoms will hold the data. I think we should try that.


An act of Congress could force them to do that, correct?


An act of Congress could force them to do that.


And can that pass this Congress?


Well, that’s the problem. The House does not have it in their bill. Senator Leahy does not have that in his bill.

If I had to bet on the most likely outcome for the USA F-ReDux bill, it would be USA F-ReDux, with some more shit added in because USA F-ReDux boosters are reluctant to talk about how much more it gives the Intelligence Community than what they have now, and with data retention mandates. As I have said, I think that’s one of the ultimate purposes of Mitch McConnell’s PATRIOT gambit.

One thing is clear, however, which is that Intelligence insiders like Feinstein are talking about data mandates among themselves, even if they’re not discussing them publicly.

6 replies
  1. Teddy says:

    In other words, DiFi and Obama believe they have agreement from (some? all?) telecoms to do what’s necessary, but are pretty sure they can’t pass a bill to make them do it. I like basing our national security priorities (because that’s what this is, right? A national security priority?) on a handshake with a corporation.

    Instead of, you know, messy lawmaking out in the open with legislators legislating. Ew, messy. And so very public!

    • P J Evans says:

      Because corporations are so good at obeying laws, amirite?
      This kind of crap does not give me confidence in government.

    • emptywheel says:

      Well, this also permits the companies involved (I suspect it includes Apple, in addition to Verizon, but those are probably the important two) to pretend they don’t help the government spy when that’s what they’re doing.

      DiFi’s not very good at keeping secrets. How’d she get to be privy to all the spooks’ secrets?

  2. orionATL says:

    well, here’s the angle that hooks these corps later (along with doj’s security b’rats) :

    you absolutely cannot have an open, accessible-to-competitors market when the goverment’s key regulator, the u.s. dept of justice, has the final say on mergers, for example, or buy outs, and the doj is also deeply committed to and involved in justifying and protecting the “rights” of government agencies to collect the electronic data of american citizens.

    furthermore, the payments to the american corps for their cooperation unbalances competition and provides unhealthy competitive advantage at least in communications (telephone, cable, etc.) fields where there is already a seriously debilitating (for our society) lack of competition.

    in general, all the multiple efforts to force wholely unnecessary and patently unconstitutional wholesale government spying on the citizens of our society is beginning a process which will create a wide range of social distortions, including the economic ones i point to here.

  3. orionATL says:

    to use a biological metaphor, the extraordinary (in part because only covertly opposed) effort in the u.s. congress to impose total communications spying on u.s. citizens could be seen as end-stage gigantism of the military-industrial complex dwight eisenhower spoke of seven decades ago.

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