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Section 215 in its current form expired, but the debate now shifts to the USA FREEDOM Act, which would partially restore it

In what his allies call a brave pro-freedom victory and critics decry as endangerment of national security, Senator Randal Howard "Rand" Paul (R-Kentucky) engaged in a 10 and 1/2 hour filibuster during a rare Sunday session of Congress in order to ensure the expiration of the key portion of the 2001 USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) -- Section 215 (50 U.S.C. § 1861).

I. The Expiration

This is only the latest battle in Sen. Paul's war against mass U.S. federal surveillance of the American public.  And while the win will unquestionably, change some things, other points are far from settled.

The expired section of the PATRIOT Act, Section 215, gave U.S. law enforcement agencies permission to apply for mass warrants to seize "tangible things".  The authorization is used by agencies such as the U.S. National Security Agency (NSA) to commit mass surveillance of virtually all Americans, a departure from the nation's traditional due process in the courts.

Section 215
[Image Source: Stadium Journey (orig. img.) / Jason Mick/DailyTech (modifications)]

President Barack Hussein Obama II and many Republicans in Congress -- including Senate Majority Leader Addison Mitchell "Mitch" McConnell, Jr. (R-Kent.) -- argue that to preventing terrorism in the U.S. due process -- a key civil liberty -- must be suspended to some degree.  Sen. Paul and other Republicans in the U.S. Senate disagree.

Sen. McConnell -- who actually endorsed Sen. Paul's presidential bid -- released a thinly veiled attack on his fellow Kentucky Republican, accusing the bill's opponents (read: Sen. Paul) of engaging in "campaign of demagoguery and disinformation."

Mitch McConnelll
Sen. Mitch McConnell (R-Kent.) supported passing the USA FREEDOM Act and criticized Sen. Pauls' filibuster. [Image Source: AP]

Sen. Paul made no attempt to disguise the fact that he was using his filibuster to draw fundraising for his presidential campaign.  Republicans seemed divided on whether that was merely sensical support of someone who shares one's principles or a shameless money grab.  Either way, the move is giving a lot of attention to Sen. Paul, both negative and positive.
 
Sen. Paul
Sen. Rand Paul filibustered to successfully force the expiration of part of the USA PATRIOT Act.
[Image Source: CSPAN]

The issue is a rare case of bipartisan debate in which the voters on at least one side of the issue are fairly evenly distributed across both of the nation's ruling parties.  While the majority of Senators opposed preserving the PATRIOT Act's Section 215 as is (one of Sen. McConnell's proposals) the debate now turns to the issue of whether to adopt a ostensibly more limited replacement, allowing a narrowed definition of date records seizure.

PATRIOT Act surveillance

Those in favor represent virtually all Senate Democrats, but also nearly half of the Republican majority in the Senate.  Those opposing aren't as bipartisan.  After initial modifications to bring some resistant Democrats onboard, all but one vote against bringing the bill to the floor were Republicans.  So the issue is bipartisan one side, but not so much on the other, at present.

II. Dangerous or Overblown?

Some Democrats were equally viruolent about allowing the mass surveillance allowances to expire.  An anonymous White House official told The New York Times:

[Allowing expiration of Section 215 is] playing national security Russian roulette.

Senate Minority Leader Harry Mason Reid (D-Nev.) echoed:

[Expiration will have] potentially devastating consequences for the American people.

Critics attacked these suggestions, calling PATRIOT Act supporters' claims "alarmist" "fearmongering".  They particularly blasted the idea that somehow expiration of Section 215 would allow for a terrorist attack.  Vox columnist Timothy B. Lee comments:

This is ridiculous. Whatever the merits of these Patriot Act provisions, having them lapse for a few days is not an emergency. The government will have plenty of options for spying on terrorists after they expire.

I agree wholeheartedly.  Aencies that use Section 215 -- including the NSA -- have admitted in government audits that their agents have violated the law "on accident" thousands of times a year, accessing Americans' records without properly even following the lax procedures of PATRIOT Act data requests.  Yet, in spite of this free for all not a single intelligence official has been able to provide an example of Section 215 seizures providing the critical clue to foiling a criminal scheme or terrorist plot.

NSA floor
NSA agents broke the law thousands of times per year, audits show. [Image Source: The People's Cube]

Most recently, the The Office of the Inspector General (OIG) within the U.S. Department of Justice (DOJ) released a 77-page report analyzing the performance of Section 215 data requests.  The report notes that agents with the U.S. Federal Bureau of Investigation (FBI) were unable to recall a single case that was cracked by these orders, despite the fact that they issue thousands of them -- legally or otherwise -- annually.

That kind of appalling track record makes it all the more perplexing why the White House and some on both sides of the aisle in Congress go to such great lengths in their rhetoric and false insistence that the seizures stop terrorism.  The record clearly states they do not.

Gen. Keith Alexander
Former NSA director Gen. Keith Alexander and others eventually conceded that they knew of no concrete examples of metadata grabs stopping a terrorist plot, in spite of misleading statements they had initially made. [Image Source: DefenseTech]

The real question is, if Section 215 orders aren't stopping terrorism, what are there true agenda?  Clearly the answer must be something important given the strength of support.

There is no clear answer.

III. USA FREEDOM Act -- Who's Paying for Data Grabs? (Hint: You)

That said, for better or worse, expiration may be only the latest chapter in this story.  Section 215 stands a fair chance of being preserved, albeit in reduced form, thanks to legislation currently under debate in the U.S. Senate.

The bill that may do that is dubbed the Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015 (H.R. 2048) -- commonly referred to under its acronym the USA FREEDOM Act.  Similar to the version the U.S. Senate initially proposed (S.1123), President Obama and other pro-surveillance advocates are pushing the bill as a "compromise" on the issue of domestic spying.  The House passed its version first, so per standard procedure the Senate is debating and modifying, instead of its own version that had not been able to pass first.

Obama on NSA spying
President Obama is pitching the bill as a compromise. [Image Source: The Washington Post]

One critical provision would be the bill's mandate that data collection shift from government storage to private storage.  Under the plan, private sector firms -- chiefly telecommunications companies -- would be required to store call records metadata for 180 days, to give the government accesss via a mildly modified version of the PATRIOT Act procedure.

One obvious potential problems with that plan are that it could actually increase special interest payouts of taxpayer money as the procedure calls for the government to compensate phone service providers for long term storage of their metadata.

Some view the bill as a mere privatization of the PATRIOT Act to shield it from criticism.  The special interest angle is compelling given the vague wording when it comes to the what these private sector storage efforts can or will add up to.  Given that the NSA's contractor driven efforts cost in some cases 10 times as much as the government equivalent, there's cause for cynicism.  However much this program limits analysis of the collected troves of data, paying for that collection could ballon the cost of NSA surveillance massively.

The bill states:

Sec. 106. Compensation for assistance

Section 501 (50 U.S.C. 1861), as amended by section 102 of this Act, is further amended by adding at the end the following new subsection:
 
The Government shall compensate a person for reasonable expenses incurred for—
 
(1) producing tangible things or providing information, facilities, or assistance in accordance with an order issued with respect to an application described in subsection (b)(2)(C) or an emergency production under subsection (i) that, to comply with subsection (i)(1)(D), requires an application described in subsection (b)(2)(C); or

(2) otherwise providing technical assistance to the Government under this section or to implement the amendments made to this section by the USA FREEDOM Act of 2015.

Money aside, it's also unclear whether the structural shift of moving the data from the government cloud to a distributed network of private sector contractors will truly limit the scope of mass surveillance.  Notably, under the bill it appears that government law enforcement and spy agencies will still be able to issue broad and ambiguous warrants that may cover thousands, if not millions of Americans.

The bill does bring about some potentially useful changes to curb abuse.  Notably its makes it more explicit how the mass data colllection will operate, specifying that easy mass collection order will require a specific "selection term" such as a telephone number, employer, person, or search phrase associated with certain accounts or records.  Before agents faced less fear of punishment, even in cases of so-called "LOVEINT" where domestic analysts used their Orwellian spy powers to stalk current or former lovers, incidents documented in audit reports produced for Congress.

NSA spying
Audits admit NSA contractors regularly broke the law, but they claim most incidents were to to "accidents". [Image Source: Nation of Change]

Further the bill makes the scope of record requests to phone service providers more explicit, via the addition of two large passsages of text that open the bill (these passages also explain the shift from government metadata storage to private sector storage):

101. Additional requirements for call detail records

(a) Application

Section 501(b)(2) (50 U.S.C. 1861(b)(2)) is amended—

(1) in subparagraph (A)—
(A) in the matter preceding clause (i), by striking a statement and inserting in the case of an application other than an application described in subparagraph (C) (including an application for the production of call detail records other than in the manner described in subparagraph (C)), a statement; and

(B) in clause (iii), by striking ; and and inserting a semicolon;
(2) by redesignating subparagraphs (A) and (B) as subparagraphs (B) and (D), respectively; and

(3) by inserting after subparagraph (B) (as so redesignated) the following new subparagraph:
(C) in the case of an application for the production on an ongoing basis of call detail records created before, on, or after the date of the application relating to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2) to protect against international terrorism, a statement of facts showing that—
(i) there are reasonable grounds to believe that the call detail records sought to be produced based on the specific selection term required under subparagraph (A) are relevant to such investigation; and

(ii) there is a reasonable, articulable suspicion that such specific selection term is associated with a foreign power engaged in international terrorism or activities in preparation therefor, or an agent of a foreign power engaged in international terrorism or activities in preparation therefor; and
(b) Order.—

Section 501(c)(2) (50 U.S.C. 1861(c)(2)) is amended—
(1) in subparagraph (D), by striking ; and and inserting a semicolon;

(2) in subparagraph (E), by striking the period and inserting ; and; and

(3) by adding at the end the following new subparagraph:
(F) in the case of an application described in subsection (b)(2)(C), shall—

(i) authorize the production on a daily basis of call detail records for a period not to exceed 180 days;

(ii) provide that an order for such production may be extended upon application under subsection (b) and the judicial finding under paragraph (1) of this subsection;

(iii) provide that the Government may require the prompt production of a first set of call detail records using the specific selection term that satisfies the standard required under subsection (b)(2)(C)(ii);

(iv) provide that the Government may require the prompt production of a second set of call detail records using session-identifying information or a telephone calling card number identified by the specific selection term used to produce call detail records under clause (iii);

(v) provide that, when produced, such records be in a form that will be useful to the Government;

(vi) direct each person the Government directs to produce call detail records under the order to furnish the Government forthwith all information, facilities, or technical assistance necessary to accomplish the production in such a manner as will protect the secrecy of the production and produce a minimum of interference with the services that such person is providing to each subject of the production; and

(vii) direct the Government to—

 
(I) adopt minimization procedures that require the prompt destruction of all call detail records produced under the order that the Government determines are not foreign intelligence information; and

(II) destroy all call detail records produced under the order as prescribed by such procedures.

If abided by, another potential plus of the above additions would be to increase the adoption of so-called "minimization" procedures.

Ultimately the number of collected records under the amended Section 215, will likely be substantially less than the previous state of affairs where surveillanc reportedly reached millions of Americans.  Collection rates, however, are likely unchanged from their current rate of 99 percent of all call metadata in the U.S.  The only shift is in where that data is stored and how it can be accessed by government agents.

IV. Loopholes and Attempts to Limit Them

It's important to state that there's no clear way to make sure that selection terms do not sometimes target innocent Americans entirely unrelated to an investigation, given the commonness of dialing a wrong number multiple times before someone realizes the number was wrong, not just misdialled.

Also there's a number of scenarios in which numbers might be pulled into the web that were unaffiliated with the investigation.  A pizza delivery boy, for example, who delivered pizzas to a terrorism suspect's apartment, might be targeted without due process or individual warrant (and in spite of the fact that they have no apparent involvement with the individual).

Wrong number
Under the revised bill, dialing a wrong number is one scenario that might lead to an individual's due process rights being nullified.  Hypothetically a smart minimization algorithm could prevent them from getting caught in the narrowed version of the data dragnet, but whether such procedures would be put in place is unknown.

Potentially worse, overly ambiguous selection terms or poor minimization procedures.  The end result would be that dozens, hundreds, or even thousands of Americans might be targeted without due process.

The revised "Definitions" section do seek to address this, stating:

Sec. 107. Definitions

Section 501 (50 U.S.C. 1861), as amended by section 106 of this Act, is further amended by adding at the end the following new subsection:
(k) Definitions.—

In this section:
(1) In general

The terms foreign power, agent of a foreign power, international terrorism, foreign intelligence information, Attorney General, United States person, United States, person, and State have the meanings provided those terms in section 101.

(2) Address

The term address means a physical address or electronic address, such as an electronic mail address or temporarily assigned network address (including an Internet protocol address).

(3) Call detail record

The term call detail record—
(A) means session-identifying information (including an originating or terminating telephone number, an International Mobile Subscriber Identity number, or an International Mobile Station Equipment Identity number), a telephone calling card number, or the time or duration of a call; and

(B) does not include—
(i) the contents (as defined in section 2510(8) of title 18, United States Code) of any communication;

(ii) the name, address, or financial information of a subscriber or customer; or

(iii) cell site location or global positioning system information.
(4) Specific selection term.—
(A)Tangible things.—
(i) In general.—

Except as provided in subparagraph (B), a specific selection term—
(I) is a term that specifically identifies a person, account, address, or personal device, or any other specific identifier; and

(II) is used to limit, to the greatest extent reasonably practicable, the scope of tangible things sought consistent with the purpose for seeking the tangible things.
(ii) Limitation.—

A specific selection term under clause (i) does not include an identifier that does not limit, to the greatest extent reasonably practicable, the scope of tangible things sought consistent with the purpose for seeking the tangible things, such as an identifier that—
(I) identifies an electronic communication service provider (as that term is defined in section 701) or a provider of remote computing service (as that term is defined in section 2711 of title 18, United States Code), when not used as part of a specific identifier as described in clause (i), unless the provider is itself a subject of an authorized investigation for which the specific selection term is used as the basis for the production; or

(II) identifies a broad geographic region, including the United States, a city, a county, a State, a zip code, or an area code, when not used as part of a specific identifier as described in clause (i).
 
(iii) Rule of construction.—

Nothing in this paragraph shall be construed to preclude the use of multiple terms or identifiers to meet the requirements of clause (i).
 
(B) Call detail record applications.—

For purposes of an application submitted under subsection (b)(2)(C), the term specific selection term means a term that specifically identifies an individual, account, or personal device.

Still, as explicit and well intentioned as the definition sounds, it will be up to the courts and Congress to curb abuse if surveillance agency start to adopt overly ambiguous terms that either directly violate those definitions or violate the spirit of them via creative workarounds.

Further, even if the definitions do stop the use of overly broad selection terms when in affect, the bill does afford for a loophole of sorts (see: Sec. 102. Emergency authority) to potentially drop them.  Such a move would allow for fully ad-hoc search procedures similar to what we've seen in the past with NSA data collection.

The provision requires that the Attorney General -- the top law enforcement officer at the DOJ (and a president appointee) -- claim a clear need for temporarily forgoing the more specific "term based" procedure.  The wording suggests such cases would be rare and would require justification to Congress.

Attorney General
The Attorney General could "temporarily" override the limitations put in place by the bill.

However, one might wonder if such provisions might be abused by the current or future executive branch administrations to return to ad-hoc mass seizures at a federal level.  An AG could, for instance, issue a set of rolling overrides to the selection term limitations, via ambiguous arguments such as an "elevated terror threat level".  It's very much unclear and uncertain whether they would face any obstacle to such a tactic, as any criticism or censure would have to come from Congress.  It appears that if at some point the majority in Congress is complicit with the AG.

That said, it does offer one positive even in the abuse case, in that Congress's role as a complicit authority rather than a uninformed party.

For these reasons some are very skeptical of the bill's "benefits" and opposed to its passage.  The site USAFreedom.fail makes a compelling case for why this is a "fake privacy bill" raising, similar points to the above, as well as other concerns.

V. Celebrate Expiration?

At the end of the day it's clear that the USA FREEDOM Act does modify and on the surface improve the specificity and narrow the scope of Section 215 to prevent abuse by federal agents.

However, it's equally apparent that as with the original text of the PATRIOT Act, this act will violate due process rights in some cases.

To the former end, some key opponents of the previous less limiting PATRIOT Act renewals -- U.S.A. PATRIOT Act Additional Reauthorizing Amendments Act of 2006 and the PATRIOT Sunsets Extension Act of 2011.

Senator Ronald Lee "Ron" Wyden's (D-Oreg.) strong support of the bill is particularly puzzling given its flaws and how strong his opposition to the PATRIOT Act seemingly was in the past.  Namely, he was one of only four senators back in 2006 to vote against reauthorizing the PATRIOT Act.

Senator Wyden
Oregon Senator Ron Wyden became a seemingly unlikely supporter of the bill, but only after he secured key changes to it late last month. [Image Source: AP]

Based on this press release that his office issued last year, it appears that Sen. Wyden agreed to support the bill -- but only after modifications were made to make it "less watered down" (in his eyes).  Specifically, he objected to the way the House version defined the "selection term".  Now that the definition has been amended to forbid broad identifiers such as a state or area code, he seems content to live with its potentially smaller scale due process violations.

He stated on Sunday in a press release regarding the expiration of the current PATRIOT Act:

Tonight the collection of phone records of millions of innocent Americans will end. The demise of this dragnet surveillance is a victory for the principle that Americans do not need to sacrifice liberty to have security. I have worked for this moment since I first learned about this flawed and illegal program almost a decade ago.

Congress now has the opportunity to build on this victory by making meaningful and lasting reforms to US surveillance laws. After Republican leaders stalled for months in a failed attempt to rerun their old playbook for extending mass surveillance, they now have no excuse for not allowing a full debate on the USA Freedom Act as soon as possible. In my view this is the best way to bring new transparency and reforms to U.S. surveillance programs and to bring certainty to our intelligence agencies.

Sen. Wyden's Facebook, Inc. (FB) social media Page has been innundated with a number of critical comments about his support of the bill.  Many of the comments seem to be from his supporters (or former supporters), so he must consider whether he's risking alienating his voter base.  One local news outlet -- OregonLive -- seemed pretty positive on Sen. Wyden's mixed view, although it's unclear whether they fully understand its context or downsides.

Senator Bernard "Bernie" Sanders (Independent/Democrat -- Verm.) -- another key critic of the PATRIOT Act extension in 2011 and presidential hopeful -- expressed somewhat more mixed sentiments.  However, he did indicate that he might still support the Act in its current amended form.

Senator Sanders
Senator Sanders, who voted in support of bringing the bill to a vote remains uncertain about whether the bill truly goes far enough to curb abuse. [Image Source: Sen. Sanders]

Specifically in a recent interview on "Meet the Press", a program produced Comcast Corp.'s (CMCSA) news outlet NBC, he stated:

I may well be voting for it. It does not go as far as I would like it to go. I voted against the original PATRIOT Act and against the re-authorization of the PATRIOT Act.

We have got to be vigorous about defending the American people and we have to do it in a way that protects their Constitutional rights, and I am very very worried, what we are seeing not only from not only the NSA and the government, but from corporate America...

Privacy rights, it is a huge issue. I am not comfortable with it, but we have to look at the best of bad situations.

So that's where things stand currently.

VI. Who Stands Where (Hint: It's Somewhat Confusing)

Lastly, to clear up some confusing aspects of the votes -- and where various parties stand, Senator Paul voted against "cloture" of the USA FREEDOM Act -- a term that refers to a vote to bring a bill to the floor for a vote (breaking potential filibusters) -- the vote narrowly failed to achieve the 60 votes necessary (the final tally was 57-42) to force an immediate vote.

The confusing aspect is that while Sens. Wyden and Sanders both voted for cloture, they subsequently voted alongside Sen. Paul in blocking extensions of the current version of the PATRIOT Act (in keeping with their past votes).  While these votes may offer a modicum of consistency with their past voting, they also make it somewhat confusing.  Sen. Wyden, in fact, led a motion to overturn one of the extensions (no vote total available, but it passed), a factor which has confounded media understanding of his relative views.

Further adding to the confusion, before the modifications to specifically define the kind of search term usable in Section 215 seizures, he actually had joined with Sen. Paul in the early stages of the filibuster that led to the PATRIOT Act expiration.  For that reason, while his claim of helping to end mass surveillance may draw snickers from critics of his current stand, it does have some basis not only in his past votes, but in his very recent opposition to the mid-May version of the USA FREEDOM Act.

USA Freedom Act
Senator Wyden now feels the bill goes far enough in backing reform of Section 215.

Also, it's worth noting that while Sen. Wyden's vote for cloture clearly is based upon his support of the so-called USA FREEDOM Act, Sen. Sander's is not necessarily.  He may simply have wanted to see a vote on the issue.  His comments possibly suggest otherwise, but they leave some ambiguity as he does not sound as wholly supportive of the Act in its current form as Sen. Wyden does.

For now the PATRIOT Act's Section 215 provisions are totally suspended.  The Senate is debating the USA FREEDOM Act this week, though, so that could soon shift.

Looking at the outlook for the bill, even if Sen. Paul opts to turn his filibuster into a multi-day marathon, it's unlikely he'll be able to prevent a vote by more than a few more days.  Either the filibuster will end or the patience of those on the fence may be exhausted enough to obtain a cloture vote.

The real question is whether the Republican majority can avoid the temptation of modifying the bill prior to its vote on the floor.  Such modifications offer more limits than Sen. McConnell and some other Senate Republicans wanted (and more than the President wanted, by the same token).

USA Freedom Act
Some believe that the USA Freedom Act is really a trap, and has enough loopholes to preserve mass surveillance. [Image Source: USAFreedom.fail]

But should they scrap the more specific definitions, they might lose the likely majority they currently hold.  Certain PATRIOT Act detractors such as Sen. Wyden parlayed their offered votes for modifications to the text.  Should the Republicans contingent of the Act's proponents go back on the amended text, some like Sen. Wyden could flip to opposing the bill in a final vote.  This possibility seems unlikely, but given the partisan atmosphere in Congress can not be ruled out.

So for now the PATRIOT Act is dead.  And Sen. Wyden and Paul -- both which played slightly different roles in its expiration -- are claiming credit for the victory.

Obama smirk
President Obama remains hopeful that the Senate will approve the bill to implement his plan for domestic surveillance. [Image Source: AP]

While both Senators found themselves on the same side for a time, they now stand in opposition regarding the passage of the so-called the USA FREEDOM Act.  Sen. Wyden supports renewing this more limited set of surveillance privileges while Sen. Paul -- who notably filed suit last year against NSA surveillance -- opposes them.

Sen. Sanders appears to be leaning towards voting in favor of the bill.  

Adding to the confusion Sen. Angus Stanley King, Jr. (Independent-Maine) -- another Democratic-leaning independent -- appeared supportive of the bill despite being only non-Republican "nay" vote for cloture last week.  He commented in a press release:

With vital counterterrorism tools set to expire this evening, I will not let the perfect be the enemy of the good. While I continue to have some concerns about the USA Freedom Act, I believe the bill includes important reforms that better protect Americans’ privacy and reauthorizes key authorities that our government needs to fight terrorism. Additionally, I have spoken with Senate leaders and I am hopeful that there will be opportunities as the Senate debates the bill to address my principle concern over the telecommunications providers’ policies on retaining call records.  Given that, I believe it’s critical that we move this bill forward in an expeditious manner, vote on amendments, and prevent the loss of critical national security tools – especially at a time when the threat is so high.

This just goes to show that the cloture vote did not equate to where everyone stands on the act itself.  The votes for cloture were driven in many cases, wholly -- or in part -- by a desire to allow for the symbolic expiration of the PATRIOT Act.  That bodes ominously for those like Sen. Paul who hope to rally longer term opposition against the more limited replacement bill.

mass surveillance
[Image Source: Occupy]

Further everyone stands won't be known until the USA FREEDOM Act hits a finalized form and the Senate votes on its approval.  Ultimately it's hard to definitively predict how someone on the fence like Sanders will vote until it happens.  For now we can only look at the hints seen thus far, and for better or worse, most of those hints point to passage.

Source: AP News





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