I know I’ve had a lot of mostly unenthusiastic things to say about even Pat Leahy’s version of the USA Freedom Act.
- It explicitly exempts FBI from counting back door searches
- It may not do anything to existing non-electronic communication bulk programs, because it probably permits the use of corporate persons as Specific Selection Terms
- The “connection chaining” may permit expanded access to smart phone data
- It retains USA Freedumber’s “foreign intelligence” retention language
Having read about half of last week’s Internet Dragnet document dump so far, I’m increasingly worried about two details I’ve already raised.
I suspect, unless the law explicitly imposes minimization procedures on NSA (and CIA, which reportedly operates the bulky Western Union dragnet), they will evade the bill’s most stringent minimization procedures.
As I noted in November and PCLOB noted in January, the business records provision was explicitly written for FBI, not other intelligence agencies. As a result, the language in it requiring minimization procedures did not — and still would not under Leahy Freedom (to say nothing of USA Freedumber) — require minimization procedures from Agencies beyond FBI. For example, unless I’m misreading how the law would be implemented, this is what would still be in place with regards to minimization procedures.
Applications have to lay out minimization procedures. But the law only requires they apply to FBI.
(D) an enumeration of the minimization procedures adopted by the Attorney General under subsection (g) that are applicable to the retention and dissemination by the Federal Bureau of Investigation of any tangible things to be made available to the Federal Bureau of Investigation based on the order requested in such application.
The judge reviews the minimization procedures in the application to make sure they comply with (g), and then includes an order they be followed in his order approving the application.
(1) Upon an application made pursuant to this section, if the judge finds that the application meets the requirements of subsections (a) and (b) and that the minimization procedures submitted in accordance with subsection (b)(2)(D) meet the definition of minimization procedures under subsection (g), the judge shall enter an ex parte order as requested, or as modified, approving the release of tangible things. Such order shall direct that minimization procedures adopted pursuant to subsection (g) be followed.
And as I’ve already noted, the entire section (g) devoted to minimization explicitly applies to just FBI.
The Attorney General shall adopt specific minimization procedures governing the retention and dissemination by the Federal Bureau of Investigation of any tangible things, or information therein, received by the Federal Bureau of Investigation in response to an order under this subchapter.
What’s particularly crazy about this is that the clause was changed to take out deadlines imposed in the 2006 renewal. In other words, they changed this clause, but left in the limits for most minimization procedures to just FBI.