USA F-ReDux Is Non-Exclusive, but the Second Circuit Might Be

I’m still trying to figure out WTF Mitch McConnell is doing with his Senate machinations over USA F-ReDux. Currently, he has both his short-term reauthorization and USA F-ReDux prepped for a vote, which probably means he’ll bring USA F-ReDux up for cloture or a vote, show that it doesn’t have enough support, and then use that to scaremonger the short-term reauthorization through as a way to wring more concessions out of the House.

Still, given what a dead-ender he is on a bill, USA F-ReDux, that gives the Intelligence Community so many goodies, I can’t help but wonder if there’s another explanation for his intransigence. I can think of one other possibility.

The House Judiciary Committee made it clear USA F-ReDux would be the exclusive means to obtain prospective Call Detail Records under Section 215:

This new mechanism is the only circumstance in which Congress contemplates the prospective, ongoing use of Section 501 of FISA in this manner.

But it made it equally clear it is not the exclusive means to obtain Call Detail Records. That’s because the report envisions conducting federated queries including “metadata [the government] already lawfully possess.”

The government may require the production of up to two ‘‘hops’’—i.e., the call detail records associated with the initial seed telephone number and call detail records (CDRs) associated with the CDRs identified in an initial ‘‘hop.’’ Subparagraph (F)(iii) provides that the government can obtain the first set of CDRs using the specific selection term approved by the FISC. In addition, the government can use the FISC-approved specific selection term to identify CDRs from metadata it already lawfully possesses. Together, the CDRs produced by the phone companies and those identified independently by the government constitute the first ‘‘hop.’’

I suggested here that that other “lawfully possessed metadata” probably consisted of data collected under EO 12333 (and permissible for chaining on US persons under SPCMA) and PRISM metadata.

But maybe that’s not all it includes. Maybe, the government has devise a way by which AT&T (or some other backbone provider) will still provide phone records in bulk on a daily basis? Maybe — as Richard Burr claimed before he later unclaimed — the government secretly maintains an IP dragnet under some other authority?

If that was the plan (though keep in mind, USA F-ReDux passed the House after the Second Circuit decision), then the Second Circuit may have ruined that effort. The ruling should limit all collection under a “relevant to” standard, not just that conducted under Section 215. And, as Faiza Patel argued, the decision should also affect collection where the government has dodged Fourth Amendment issues by focusing on “searches” rather than “seizures.”

[A]s Jennifer Daskal explained last Friday, “collection matters.” The Second Circuit rejected the government’s contention that there was no cognizable injury until plaintiffs’ phone records were actually analyzed and reviewed. It ruled that collection is properly analyzed as “seizure,” which if unlawful constitutes a separate injury from the “search” that takes place when records are analyzed either by a human being or a computer.

As the Supreme Court has recognized, in Fourth Amendment cases the analysis of standing is intertwined with the merits question of whether there has been an invasion of a protected privacy interest. Thus, the Second Circuit’s position on collection could have serious implications for other government programs beyond the standing question.

I’ve already suggested the decision might create problems for the virgin birth DOJ secretly gave to EO 12333 data used in SPCMA.

But who knows what else it applies to?

After all, USA F-ReDux was written so as to allow other dragnets (which is what EO 12333 is, after all). But the Second Circuit may pose problems for such dragnets that USA F-ReDux did not.

Going back to Richard Burr’s odd colloquy — which his office’s excuses simply cannot rationally explain — I think it (very remotely) possible the government is dragnetting IP addresses (perhaps for cybersecurity rather than counterterrorism purposes), but worries it has lost authority to do so with the Second Circuit decision. If so, it might be using this fight over counterterrorism data collection to lay congressional support for broader dragnet collection, to be able to sustain whatever other dragnets it has in place.

6 replies
  1. Adam says:

    Not sure how often you check comments, but — why do you think it’s only a _remote_ possibility there’s dragnet IP collection?

    It seems, to me, consistent with the tortured legal arguments we know of used to justify metadata collection, and it could certainly, from a technical point of view, make things easier, like for MITM packet-rewriting

    • emptywheel says:

      We know they’re collecting a great deal of IP. I guess I should have specified that there’s enough domestic IP Collection happening on an individualized basis I’m not sure where they’d have the bulk collection hidden.

  2. bloopie2 says:

    I wonder if this Second Circuit decision has implications elsewhere?

    “FBI agents are not entitled to a presumption that wiretapped calls involving personal, non-criminal matters lasting less than two minutes are non-invasive, a federal appeals court has held. The U.S. Court of Appeals for the Second Circuit declined to adopt a rule that agents get a “two-minute presumption” on the reasonableness of wiretapping calls that are personal in nature.” Drimal v. Makol.

    • bloopie2 says:

      The court held that when interceptions have been authorized for the purpose of an investigation, and when there is a statutory duty to minimize irrelevant interceptions, that duty must be strictly compiled with, and failure to do so will have consequences to the agents listening. No per se rule will be applied to immunize improper actions below a certain predetermined threshold. If the issue of whether the Feds properly comply with minimization requirements relating to a dragnet comes before the Second Circuit, this is an example of current Second Circuit thinking that is squarely in line with the civil liberties tone of the ACLU decision.

  3. WB says:

    McConnell’s straightforward renewal of section 215 has no chance of passing Congress, so his alternatives, in the short term, are either passage of the USA Freedom Act or expiration of section 215. On a simple policy level, they are indistinguishable, since both end bulk collection. On a political level, they are very different. And I think expiration is much more attractive to him than passage. Here’s why.
    Passage of the USA Freedom Act would end the metadata program and, equally important, the legislative debate over bulk collection. Unless the US suffered another catastrophic, 9/11-style attack, Congress would be unlikely to revisit, let alone reauthorize, the NSA’s program. The USA Freedom Act would close the door on surveillance that McConnell strongly supports.
    The sunset, by contrast, would be a product of legislative gridlock, not formal congressional action. Hawks in Congress could feasibly argue that the issue of bulk collection remains unsettled, leaving them an opportunity to introduce measures, at some future point, that authorized metadata collection.
    Moreover, the sunset would allow the executive and the FISA Court to step in and establish a new legal rationale for bulk collection. They could argue that, because of congressional inaction, they need to develop a policy solution on this matter. And as long as Congress or the Supreme Court did not formally prohibit metadata collection, they could spin whatever legal justification that suited their needs.
    So the sunset gives defenders of bulk surveillance flexibility, whereas passage of the USA Freedom Act does not. I think that’s why McConnell is playing the obstructionist game and allowing section 215 to expire.

  4. earlofhuntingdon says:

    Let’s not forget license plate reader data that makes its way via state authorities onto federal or federally controlled- or federal contractor-controlled data bases.

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