While I was squawking about how Jim Sensenbrenner issued a manager’s amendment (aka USA Freedumb) purporting to end bulk collection by tying everything to a “specific selection term” without defining what “specific selection term” meant, the House Judiciary Committee released an updated version of the bill defining the term.
(2) SPECIFIC SELECTION TERM.—The term ‘specific selection term’ means a term used to uniquely describe a person, entity, or account.’
All the relevant invocations of the term now refer back to this definition.
The language not only doesn’t convince me this bill works, I think it validates my concern about the bill.
That’s because the word “entity” is already too loosely defined. Is this like the definition of the entity that struck us on 9/11 that Presidents have expanded anachronistically? Al Qaeda = AQAP = al-Nusra?
And in just about every case imaginable — an entity’s phone numbers, its bank accounts, its email addresses (though perhaps not domain name and IP) — there is a necessary translation process between the entity and the selector(s) that would be used for a search.
That this translation happens shows up in some of the invocations of “specific selection term” where they say the “specific selection term” will be used as a “basis” for selecting what to actually search on, as with the Pen Register section.
(3) a specific selection term to be used as the basis for selecting the telephone line or other facility to which the pen register or trap and trace device is to be attached or applied; and’
Al Qaeda is not the name of the telephone line (or facility, which itself has been an invention used to conduct bulk collection in the name of a specific selector).
This “basis for” language shows up even with the NSL language.
COUNTERINTELLIGENCE ACCESS TO TELEPHONE TOLL AND TRANSACTIONAL RECORDS.—Section 2709(b) of title 18, United States Code, is amended in the matter preceding paragraph (1) by striking ‘‘may’’ and inserting ‘‘may, using a specific selection term as the basis for a request’’.
If the bill just required account identifiers or eliminated that “as a basis for” language, it might work. But as it is, that “as a basis for” involves analysis that also involves the possibility of using far different — and far broader — terms for the actual queries. (And it’s not clear — at least not to me — where and whether judges would get to approve this translation process.)
But you don’t have to take my word for it. You can look at a program that relied on “specific selection terms” “as a basis for” unbelievably vast collection.
The phone dragnet program.
In every single phone dragnet order, there’s a section that says records may only be searched if they’ve been associated with particular entities. Here’s the first one: