Ron Wyden Is Worried the Government Will Use FISA Process to Force Companies to Make Technical Changes

Ron Wyden and Rand Paul just introduced their bill to fix Section 702. It’s a good bill that not only improves Section 702 (by prohibiting back door searches, prohibiting the 2014 exception, and limiting use of 702 data), but also improves FISC and PCLOB.

The most alarming part of the bill, though, is Section 14. It prohibits the Attorney General and Director of National Intelligence from asking for technical assistance under Section 702 that is not narrowly targeted or explicitly laid out and approved by the court.

(B) LIMITATIONS.—The Attorney General or the Director of National Intelligence may not request assistance from an electronic communication service provider under subparagraph (A) without demonstrating, to the satisfaction of the Court, that the assistance sought—

(i) is necessary;

(ii) is narrowly tailored to the surveillance at issue; and

(iii) would not pose an undue burden on the electronic communication service provider or its customers who are not an intended target of the surveillance.

(C) COMPLIANCE.—An electronic communication service provider is not obligated to comply with a directive to provide assistance under this paragraph unless

(i) such assistance is a manner or method that has been explicitly approved by the Court; and

(ii) the Court issues an order, which has been delivered to the provider, explicitly describing the assistance to be furnished by the provider that has been approved by the Court.

This suggests that Wyden is concerned the government might use — or has used — FISA to make sweeping onerous technical demands of companies without explicitly explaining what those demands are to the Court.

The most obvious such application would involve asking Apple to back door its iPhone encryption.

As a reminder, national security requests to Apple doubled in the second half of last year.

The number of national security orders issued to Apple by US law enforcement doubled to about 6,000 in the second half of 2016, compared with the first half of the year, Apple disclosed in its biannual transparency report. Those requests included orders received under the Foreign Intelligence Surveillance Act, as well as national security letters, the latter of which are issued by the FBI and don’t require a judge’s sign-off.

We would expect such a jump if the government were making a slew of new requests of Apple related to breaking encryption on their phones.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

4 replies
  1. SpaceLifeForm says:

    OT: Senator Jeff Flake stands up and flips the bird to potus (I would capitilize potus but he is not worthy)

    https://www.washingtonpost.com/news/the-fix/wp/2017/10/24/i-will-not-be-complicit-jeff-flakes-retirement-speech-annotated/

    ‘I will not be complicit.’

    Mr. President, I rise today to address a matter that has been much on my mind, at a moment when it seems that our democracy is more defined by our discord and our dysfunction than it is by our values and our principles. Let me begin by noting a somewhat obvious point that these offices that we hold are not ours to hold indefinitely. We are not here simply to mark time. Sustained incumbency is certainly not the point of seeking office. And there are times when we must risk our careers in favor of our principles.

    Now is such a time.

    • bmaz says:

      Spare me. I have known the Flakes forever. Jeff is an odd duck, but still a VERY mainline Republican conservative. Do NOT bite off on this as some heroic shit. If you do, you will be proven a fool.

  2. earlofhuntingdon says:

    Ditto.  If Corker and Flake meant what they said – that Donald Trump is an active menace to the United States, the world and the planet – they would be working ceaselessly for his immediate impeachment. 

    But no, they are slinking away with their, um, tails between their legs – and voting to protect Wall Street banks from class action lawsuits by aggrieved consumers. 

    The artful words of Corker and Flake are as empty as the second grade blather from Donald Trump. They are all elegant representatives of today’s vapid and dangerous Republican Party, and many of their nominal opponents across the aisle.

  3. earlofhuntingdon says:

    Trump brags endlessly about how hard he works at something, to bolster his obviously false claims about how much he achieves by it. We should apply to Corker and Flake the same standards we demand of Trump, the standards demanded of every parent, spouse, judge, employer, military officer and traffic cop on the planet – judge them by what they do, not by what they say.

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