DiFi and Pat Leahy, Silencing the Librarians

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librarian-shh.thumbnail.jpgThere’s a cynical passage in the new PATRIOT language that DiFi put forward the other night. It basically creates an exception in the worsened Section 215 language just for libraries.

‘‘(B) if the records sought pertain to libraries (as defined in section 213(1) of the Library Services and Technology Act (20 U.S.C. 9122(1)), including library records or patron lists, a statement of facts showing that there are reasonable grounds to believe that the records sought—‘‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against inter-national terrorism or clandestine intelligence activities; and ‘‘(ii)(I) pertain to a foreign power or an agent of a foreign power; ‘‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or ‘‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

This language requires that before investigators demand libraries turn over records, they must first prove that the person to whom the records pertain is either an intelligence investigation suspect, or is in contact with one. So for library records, and library records only, the new language requires some showing of reasonable cause first before the investigators can request the information.

During the hearing, Ben Cardin asked why there was a special standard for libraries (at about 108:30 in the hearing). Kyl offered this explanation for the exception (one he disagrees with):

Kyl: There was such a–I would say–unwarranted and irrational, and I certainly don’t apply that word to anyone here but from some folks out in the country–concern about library records as the result of blogs and so on, it was simply easier to say, okay, cut it loose, it’s important but not that important to hold up the rest of the legislation.

[snip]

In order to get rid of the political argument that was, essentially, irrelevant in almost all investigations, it was simply easier to cut that lose and have a different standard for it.

Durbin then calls Leahy and Kyl on their cynicism, arguing that the exception just for libraries proves that the underlying principle of Section 215, as written, is unsound.

Durbin: Senator Kyl raised an interesting question. Why aren’t more people complaining about this if it is such a problem? Read more →

DiFi’s Invitation to a Fishing Expedition

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fly_fishing_in_southeast_louisiana.thumbnail.jpgAs I noted last night, DiFi appears to have used the Najibullah Zazi investigation as justification to make the language surrounding Section 215 of the PATRIOT Act worse, effectively granting the FBI the ability to collect secret lists of everyone who buys acetone or hydrogen peroxide.

As a reminder, Section 215 gives investigators a way to get business records or other tangible things without telling the people who those business records pertain to that they have done so. I have speculated that the FBI is using Section 215 now to search out people–who may or may not have known ties to alleged Islamic terrorists–who have purchased the precursors of TATP, the explosive that Najibullah Zazi is alleged to have tried to make. Those precursors include things like hydrogen peroxide and acetone, both common ingredients of beauty and home improvement supplies.

Here is the current Section 215 language on targeting (I’ve used bold and strike-through here to show significant changes).

(2) shall include— (A) a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities, such things being presumptively relevant to an authorized investigation if the applicant shows in the statement of the facts that they pertain to—

(i) a foreign power or an agent of a foreign power;

(ii) the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

(iii) an individual in contact with, or known to, a suspected agent of a foreign power who is the subject of such authorized investigation; 

Here’s the language that Pat Leahy had originally proposed.

(A) a statement of facts showing that there are reasonable grounds to believe that the records or other things sought–

‘(i) are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities; and

‘(ii)(I) pertain to a foreign power or an agent of a foreign power;

‘(II) are relevant to the activities of a suspected agent of a foreign power who is the subject of such authorized investigation; or

‘(III) pertain to an individual in contact with, or known to, a suspected agent of a foreign power;

Leahy’s language made the burden of proof here tougher, particularly in the case of someone simply "in contact with, or known to" a suspected agent of a foreign power. He took out the "presumptively relevant" language, effectively requiring the FISA Court Judge to determine this information was actually relevant to the investigation.

But here’s what I understand DiFi has changed the language to Read more →

Liveblog of SJC Reauthorization of PATRIOT Act

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You can watch the hearing here.

Durbin joins Feingold in complaining that the substitute bill took out the Section 215 oversight.

Durbin: I’m especially concerned that the substitute removes one of the most important reforms from bill–the requirement that govt show some connection to terrorism. Real reason why that has been taken out has been cloaked in secrecy.   I believe that each member of this committee seek a classified briefing to understand why this has been taken out.

Kyl asking for more time, and a classified briefing. 

Kyl: Every time you include a sunset with a bill it provides bargaining leverage for those trying to cut back on authorities in the bill.

[Gee, you think?]

Kyl: Rowley warned of lone wolf problem with Moussaoui.

[Ignoring that they could have gotten a criminal warrant.]

Kyl: Why would we sunset the NSLs? Abuses that occurred are not continuing. 

Franken: Yield for clarification. You said passed on recommendations of the 9/11 Commission?

Kyl: Yes, DiFi and I had a series of recommendations from terrorism subcommittee. For the most part acted on right after 9/11, but not in entirety. 9/11 Commission made series of recommendations, three different laws. My point was that in trying to respond to recommendations.

Cardin: If this gets delayed until December because of differing views, we’ll do a disservice. Compliment you and DiFi. SJC and SSCI both have goal of protecting security and rights of people. Judicary focused on rule of law. 

Whitehouse: Compliments to Leahy and DiFi, and staffs of SSCI and SJC. With adoption of Leahy/DiFI substitute, I be added to cosponsor bill.

DiFi: Respond to two things. Roving wiretap. Has been suggested that roving wiretaps can be used against anyone. In fact roving wiretap can only be used after court order, probable cause that agent of foreign power. W/o that power, terrorist can thwart surveillance by switching phone. That has increasingly happened. Court must also find that target trying to avoid surveillance. NSLs: carefully targeted to make sure can’t be used for highly sensitive information. Subscriber information. Name when phone number is known.

Feingold: As to issue of whether this bill will have to be passed by end of year. Record is when difficulty, extend sunset of bill. No one trying to have PATRIOT die. Never opposed having this in place. No rush to this. As to NSL issue. I am not seeking to have scenario where NSL authority dies. We proposed NSLs that does not have sunset. Notion Read more →

On PATRIOTs and JUSTICE: Feingold Aims for Justice

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Over the last two days, I described what Patrick Leahy’s bill renewing the PATRIOT Act does and noted Russ Feingold’s complaints that, thus far, the debate on PATRIOT is happening without we citizens knowing how PATRIOT (and FISA) have been used. Today, I wanted to talk about how I think Leahy’s PATRIOT renewal (and a bill to reverse retroactive immunity) appears to be an attempt to forestall Feingold’s efforts to roll back those unrevealed uses of PATRIOT and FISA.

Before I get into what is in Feingold’s JUSTICE bill, first understand the timing. Feingold introduced his bill before Leahy (with Ed Kaufman, the Vice President’s stand-in, co-sponsoring) introduced PATRIOT renewal. Leahy explicitly integrated select aspects of Feingold’s bill into the PATRIOT renewal. And tomorrow, the Senate Judiciary Committee will mark up the PATRIOT renewal.  Since Feingold’s JUSTICE is premised on improving FISA while renewing PATRIOT, Feingold’s measures that don’t get included in tomorrow’s markup will be much more difficult to pass.

As a reminder, here was my summary of Leahy’s bill:

So to summarize, the Leahy bill (which is co-sponsored by Ben Cardin, Ed Kaufman, and Bernie Sanders) would do the following:

  • Extend the roving wiretap, Section 215 (tangible things), and “lone wolf” provisions of the PATRIOT Act to 2013
  • Mandate further audits of some of these provisions, such as the use of pen registers
  • Give the Court oversight over the minimization procedures for the use of Section 215 and pen register and trap and trace devices
  • Require that Section 215 and pen registers only be granted if authorities can show that the requested information has ties to terrorism
  • Gives recipients of NSLs and Section 215 orders greater means to appeal the gag order associated with it

In his testimony at least week’s hearing, Leahy had the following to say about Feingold’s bill:

I have consulted with Senators Feingold and Durbin, who introduced a more expansive bill last week, and, with their encouragement, borrowed a few accountability provisions from their proposal.

[snip]

Requiring FISA Court approval of minimization procedures would simply bring Section 215 orders in line with other FISA authorities — such as wiretaps, physical searches, and pen register and trap and trace devices — that already require FISA court approval of minimization procedures. This is another common sense modification to the law that was drafted in consultation with Senators Feingold and Durbin. Read more →

On PATRIOTS and JUSTICE: What We Don’t Know

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The first thing Russ Feingold said in last week’s hearing on the PATRIOT Act renewal is that there’s something about the way the PATRIOT Act works that has not been made public.

Mr. Kris, let me start by reiterating something you and I have talked about previously. And that’s my concern that a critical information about the implementation of the PATRIOT Act has not been made public, information that I believe would have a significant impact on the debate. I urge you to move expeditiously on the request that I and others on this Committee have made before the legislative process is over.

In his statement, Feingold reiterates that concern, comparing the current debate with the earlier debates on FISA and PATRIOT reauthorization.

I welcome the administration’s openness to potential reforms of the Patriot Act and look forward to working together as the reauthorization process moves forward this fall.

But I remain concerned that critical information about the implementation of the Patriot Act has not been made public – information that I believe would have a significant impact on the debate.

[snip]

This time around, we must find a way to have an open and honest debate about the nature of these government powers, while protecting national security secrets.

As a first step, the Justice Department’s letter made public for the first time that the so-called "lone wolf" authority – one of the three expiring provisions – has never been used. That was a good start, since this is a key fact as we consider whether to extend that power. But there also is information about the use of Section 215 orders that I believe Congress and the American people deserve to know. I do not underestimate the importance of protecting our national security secrets. But before we decide whether and in what form to extend these authorities, Congress and the American people deserve to know at least basic information about how they have been used. So I hope that the administration will consider seriously making public some additional basic information, particularly with respect to the use of Section 215 orders.

You get the feeling that Feingold wants to draw attention to this aspect of the Section 215 of the PATRIOT Act that hasn’t been made public, huh?

Before we look at what that might be, let me attend to the earlier references Feingold makes. Read more →

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