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  (Source: Hey, NSA! Tumblr)
Senator spews forth legislation that would institutionalize the government tracking Americans daily

"I feel I have an obligation to do everything I can to keep this country safe.  So put that in your pipe and smoke it," Senator Dianne Feinstein (D-Calif.) told reporters in June.

I. The Law? The NSA Sees Itself as Above it

Last Thursday she's stuffed a little extra in the pipe as the U.S. Senate Intelligence Committee approved her bill draft of the "FISA Improvements Act", a piece of legislation which would dramatically alter the NSA's responsibilities

Let's recap.  In June Edward Snowden, a former contractor for the U.S. National Security Agency (NSA) began to leak a series of documents that appeared to reveal that the NSA was not only closely spying on U.S. allies like France and Germany, but also spying on its own citizens.

Obama spying
The Obama adminstration "enhanced" Bush-era Orwellian spying. [Image Source: AP]
 
The NSA's powers granted by Congress specifically say it can only spy on foreigners.  These powers stem from the Executive Order 12333 (President Ronald Reagan, 1981) and the Foreign Intelligence Surveillance Act of 1978 (FISA) (50 USC Chapter 36). According to the law, the NSA is not supposed to collect surveillance on Americans.  Indeed its purpose was always stated -- and assumed to be -- monitoring volatile foreign states such as Pakistan or Afghanistan.

But the Snowden leaks show unquestionably that the NSA was conducting "surveillance [that acquires] the contents of... United States person[s]" on an alarmingly massive scale.

First the NSA was shown to be spying on roughly 99 percent of Americans' locations on a daily basis via so-called "telephone metadata", which are text records that include the approximate location of the call and who was being called.  The NSA -- and its proponents like Sen. Feinstein -- suggest that telephone metadata is not protected by the Fourth Amendment.

Sen. Feinstein
Sen. Feinstein isn't afraid of angering voters, as she knows her party bosses will continue to support her.
[Image Source: Foreign Post]

To put this in perspective, other forms of "metadata" that show your behavior such as internet logs or credit card purchase histories, generally require a warrant, as the Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

With the USA PATRIOT Act certain domestic agencies were empowered to collect some forms of data via rubber-stamp mechanisms -- either via "national security letters", a common tactic of the U.S. Federal Bureau of Investigations (FBI), or via bulk collection orders via the FISA.

As dangerous as those potential Constitutional violations were, the NSA spying was arguably even more dangerous.  While it also was mostly cornered on FISA bulk collection requests, the NSA had received far less scrutiny than the FBI and others -- largely because it appeared to be expressly forbidden to collect Americans' records.  But it did, arguing that it was just as entitled to spy on Americans' metadata as domestic law enforcement agencies like the FBI.

And the NSA came up with a few tricks of its own.  For example, when popular services sent their data overseas on fiber optic cables it seized that data.  While many of the individuals whose emails the NSA was snatching were U.S. citizens, the NSA says it wasn't breaking the law because it assumes that any data overseas belongs to foreigners.

The NSA admits to "touching" a significant amount of global web traffic.  But it says it has a "good" track record -- it's agents only commit flagrant violations of spying laws a few thousands of times of year, inspecting communications of U.S. citizens, it says.

II. Senator Feinstein -- Trade Liberty for Safety

But if Senator Feinstein has her way, the Constitution's obstacles to "fighting terrorism" will be pushed and the NSA will be dramatically re-envisioned as an agency who is largely tasked with spending billions of American taxpayer dollars spying on law-abiding Americans.

fiber optics
Sen. Feinstein's bill would legalize seizing all Americans' cell phone records without warrant. [Image Source: AP]

At best, the bill does install some new bookkeeping characteristics that could allow the public and civil liberties advocates to follow the program to some extent.  However, it's hard to take the bill's big promises of "transparency" seriously when Sen. Feinstein and company spent Thursday marking up the bill's language with a secret set of changes:
And while the bill does add fresh criminal charges to those who leak data relating to NSA domestic spying, one must wonder whether this provision could be twisted to target future leakers following in Mr. Snowdens' line with stiff promises of prison time for revealing violations of Americans' privacy by the NSA.

Cell Phone tracking
The Feinstein bill would institutionalize constant tracking of Americans by the NSA. [Image Source: MR Conservative]

Elizabeth Goitein, a co-director of the Brennan Center for Justice, a civil liberties non-profit comments:

The intelligence committee bill and the USA Freedom Act present two opposing visions of the relationship between law-abiding Americans and the national security state.  The fundamental question is: should the government have some reason to suspect wrongdoing before sweeping up Americans' most personal information to feed into its databases? Leahy and Sensenbrenner say yes; Feinstein says no.

The Electronic Frontier Foundation (EFF) a foremmost defender of the Constitution in the digital age comments:

Don’t be fooled: the bill codifies some of the NSA’s worst practices, would be a huge setback for everyone’s privacy, and it would permanently entrench the NSA’s collection of every phone record held by U.S. telecoms. We urge members of Congress to oppose it.

We learned for the first time in June that the NSA secretly twisted and re-interpreted Section 215 of the Patriot Act six years ago to allow them to vacuum up every phone record in America—continuing an unconstitutional program that began in 2001. The new leaks about this mass surveillance program four months ago have led to a sea change in how Americans view privacy, and poll after poll has shown the public wants it to stop.

But instead of listening to her constituents, Sen. Feinstein put forth a bill designed to allow the NSA to monitor their calls. Sen. Feinstein wants the NSA to continue to collect the metadata of every phone call in the United States—that’s who you call, who calls you, the time and length of the conversation, and under the government’s interpretation, potentially your location—and store it for five years. This is not an NSA reform bill, it’s an NSA entrenchment bill.

Jennifer Granick of the Stanford Center for Internet and Society comments to The Huffington Post, "The Feinstein bill is terrible and would make things worse. I think the Leahy-Sensenbrenner bill begins to address some of the problems."

III. When an "Improvement" Makes an Illegal Act Legal

To be clear the title is pretty misleading, as even if you think that more government spying on Americans is an "improvement", the phrase suggests some sort of change.  Rather, for the most part the bill instead represents change no real change to how the NSA operates, as we have come to know it.  The NSA will still suck up Americans metadata, allowing it to track any American with a simple query at a moment's notice.

NSA Unchained
[Image Source: ACLU]

This may not be clear at first from the bill's language until you reread it a couple of times and come to understand that it refers to the act of "collection" as an analyst looking at data.  This act is limited to queries that are believed to somehow related to a terrorist investigation.

First, these queries could obviously expose Americans inadvertently as data-mining on phrases produces numerous false positives.  Second, while bill limits (supposedly) what kinds of things agents can search for the record in the same ways as the agency's own rules (supposedly) currently limit agents, it in no way limits the underlying effort to suck up raw, unfiltered metadata records of the backbone -- an activity which is not considered "collection" in Senator Feinstein and the NSA's reality.

NSA Protesters
NSA protesters condemn mass spying on Americans. [Image Source: Flickr/swudc]

With this understanding it becomes clear that the bill basically takes something that may currently be not only unconstitutional but explicitly illegal under the U.S. Code of Law -- and makes it legal under the U.S. Code of Law.  And in doing so it radically reinvents the NSA's mission from focusing on policing foreign enemies to turning on the nation's citizens spying on "terrorists" and other manner of internal threats.

IV. Outlook

Senator Feinstein confirms her apparent dream of an increased police state "protecting" Americans from themselves, commenting:

Intelligence is necessary to protect our national and economic security, as well as to stop attacks against our friends and allies around the world.  I believe the reforms in this bill are prudent, responsible and meaningful.

By contrast the "USA Freedom Act of 2013", cosponsored by Sens. Michael S. Lee (R-Utah) and Patrick Leahy (D-Verm.) (among others) appears to be a true "improvement" (in the eyes of the public, at least) by scaling back the NSA's current Constitutionally questionable domestic snooping.

In a troubling sign Sen. Susan Collins (R-Maine), a "moderate" Republican who has many allies in the Senate, backed Sen. Feinstein's Big Brother bill.

The bill has begun to draw some vocal Senate opposition, though. Leading the way is Sen. Leahy, who argues against Sen. Feinstein and President Barrack Hussein Obama remarking:

I think it’s time for a change.  The government has not made its case that bulk collection of domestic phone records is an effective counterterrorism tool, especially in light of the intrusion on American privacy,” he added.

I’ve looked at the classified list of cases involving Section 215 and I found it to be unconvincing.  Just because something is technologically possible, and just because something may be deemed technically legal, does not mean that it is the right thing to do.

Feinstein
Backed by unlikely allies like Sen. Rand Paul, Sen. Leahy (left) is fighting to push a bill that does the opposite of Sen. Feinstein's (right) bill. [Image Source: AP]

In a statement Sen. Mark Udall (D-Colo.) remarked, "I fought on the committee to replace this bill with real reform, and I will keep working to ensure our national security programs show the respect for the U.S. Constitution that Coloradans tell me they demand.  The NSA's ongoing, invasive surveillance of Americans' private information does not respect our constitutional values and needs fundamental reform - not incidental changes."

Senator Rand Paul (R-Kentucky) introduced a Senate resolution demanding President Obama come clean regarding allegations that the U.S. was spying on Pope Francis (Benedict XVI), the head of the Catholic religion.


Senator Paul in a weekend interview commented:

Here's the question.  The NSA also says that collecting bulk data on Americans is not spying, so you have to parse their words.  Because when Director James Clapper went to Congress he said they weren't collecting any data.  They've lost a lot of credibility.

One would assume that Sen. Paul, based on his comments would join with Sen. Udall in his opposition of Sen. Feinstein's bill.

Sources: Senator Dianne Feinstein [press release], [law; PDF], EFF, Foreign Policy



Comments     Threshold


This article is over a month old, voting and posting comments is disabled

My bill
By Motoman on 11/4/2013 4:26:06 PM , Rating: 5
I offer the following bill to the American people:

Any congresscritter that DOES NOT act to end any and all warrantless surveillance of any kind, including but not limited to recording data and/or metadata about American citizens' phone communications (whether voice, text, email, or otherwise), shall be taken out behind the barn and shot.

Who's with me?




RE: My bill
By Motoman on 11/4/2013 4:27:47 PM , Rating: 2
Oh, and for the black helicopter that just landed in my back yard...

/s


RE: My bill
By chµck on 11/4/2013 4:32:14 PM , Rating: 2
STOP RESISTING ARREST


RE: My bill
By vhx on 11/4/2013 5:45:38 PM , Rating: 2
In other news, a man that goes by the handle Motoman on the website DailyTech was found dead today. He was found blindfolded, hands bound behind, and shot in the back of the head twice. Officials comment that no foul play is suspected.


RE: My bill
By FaaR on 11/4/2013 5:47:30 PM , Rating: 2
quote:
Officials comment that no foul play is suspected.

In fact, they ruled it "a tragic suicide"... ;)


RE: My bill
By Farfignewton on 11/4/2013 6:52:45 PM , Rating: 5
Huh. It looks like he took himself by surprise.


RE: My bill
By JDHammer on 11/5/2013 12:55:59 PM , Rating: 4
Simple, vote her out of office in the next election. That'll teach her a lesson.


RE: My bill
By rvertrees on 11/5/2013 11:32:45 PM , Rating: 2
Yeah put her in the poor house with her $200000 yearly pension she will get for the rest of her life. That will teach her a lesson.


RE: My bill
By sparkuss on 11/4/2013 6:55:38 PM , Rating: 2
"The suspect died while trying to overpower my bullet"!


RE: My bill
By mmatis on 11/5/2013 7:55:40 AM , Rating: 2
They had better get ready for "100 heads".


RE: My bill
By Jeffk464 on 11/4/2013 6:32:03 PM , Rating: 1
"black helicopters" are just the special ops killer egg helicopters. They are flat black with very subdued grey, markings on them. I don't think they are top secret or anything, watch Blackhawk Down.


RE: My bill
By EasyC on 11/5/2013 8:38:56 AM , Rating: 4
Silly Noob, they wouldn't waste the gas on a helicopter. You'd get the drone treatment.


RE: My bill
By invidious on 11/5/2013 12:16:12 PM , Rating: 2
/facepalm

I must have missed the DT article about the zero emissions drones that don't use fuel. He may not get a trial but at least he gets an ECO freindly execution.


RE: My bill
By sorry dog on 11/5/2013 3:46:47 PM , Rating: 2
What kind of execution is that? Being forced to listen recorded speeches of Feinstein continuously until death??

I suspect most will succumb in 2 hours or less.


RE: My bill
By Reclaimer77 on 11/4/2013 4:39:20 PM , Rating: 2
I'm not advocating violence or anything, but I have to admit to reading a book recently called "Term Limits" which was quite cathartic for me.

If something like that happened to Feinstein (and certain other Democrats), well, I would throw a party.


RE: My bill
By The Von Matrices on 11/4/2013 5:47:08 PM , Rating: 4
Term limits have their own set of problems, particularly that with term limits there is much less incentive for politicians to pursue laws that extend well beyond their terms. I don't think term limits are the solution here; there are many other reforms that would be more effective like publicly financed elections.


RE: My bill
By RicheemxX on 11/4/2013 5:58:13 PM , Rating: 3
Yes and no! The reason most aren't inclined to make the TOUGH DECISIONS now id because they fear being cast out of office. If they already know they can't be re-elected then they might be more likely to take tough stances. On the flip-side we might see more politicians taking political flyers and trying to push through more crap like this.

Carrier politicians will never get anything meaningful done in Washington. They don't answer to anyone but the few they represent (in this case the peoples republic of Ca.) Feinstein is about as red blooded as a commi gets but she positioned herself in the middle of tons of Hollywood/southern Ca clout. so she'll never get voted out.


RE: My bill
By gamerk2 on 11/5/2013 10:22:11 AM , Rating: 3
Term limits are fundamentally undemocratic. If you need term limits to prevent dictatorship, then you accept the fact Democracy, as implemented in the US, isn't working.


RE: My bill
By DFSolley on 11/5/2013 11:10:07 AM , Rating: 2
We are supposed to be a democratic republic, which modifies the democracy side. The mob doesn't get everything it wants, as the minority should have some rights.


RE: My bill
By Motoman on 11/5/2013 12:18:34 PM , Rating: 3
This is just it - a "true" democracy is guaranteed to become corrupt, as the majority has the capability to abuse minorities all it wants without repercussions. Which is precisely why we're a republic and not a straight democracy.


RE: My bill
By sorry dog on 11/5/2013 3:55:51 PM , Rating: 3
It's an unrealistic idea, but I wish there was a way for some voters votes to count double. Something like those with 2 or more years of military service and those that can pass a competency exam that tests governmental knowledge (like basically a high gov't class), basic world knowledge, and basic English.

It will never happen, though.


RE: My bill
By Motoman on 11/6/2013 4:42:27 PM , Rating: 3
Why do you think that would help? You could be an expert in all those things, and be a veteran, and still hate gays, Muslims, midgets, and think evolution should be banned from science classes.


RE: My bill
By Nutzo on 11/6/2013 10:31:06 AM , Rating: 2
It's not Southern California clout, it's the bay area (San Francisco & Silicon Valley) clout. It's also where Boxer, Pelosi, and almost all of the Democrats that hold state wide office come from.

Southern California is alot more conservative, while the bay area is so far to left, it throws the entire state out of ballance.


RE: My bill
By Reclaimer77 on 11/4/2013 6:27:33 PM , Rating: 2
Well I don't want to ruin the plot for ya, but in Term Limits the "term limit" was death lol


RE: My bill
By DFSolley on 11/5/2013 11:08:00 AM , Rating: 2
Publicly financed elections will put the politicians in control of the definition of who are the legitimate candidates. Some groups will be defined as not meeting "standards" and wouldn't get public financing, further enforcing government by incumbents.

The problem with anything "public" is that the politicians will get control of it and use it to enhance their own power.


RE: My bill
By DFSolley on 11/5/2013 11:17:19 AM , Rating: 2
I don't think term-limits will help. We need to remove some of the politics of getting elected. I propose removing section 2 of the 14th amendment. This would return the selection of senators to the state legislators rather than direct election. Senatorial positions would then be more about legislation than elections, but still subject to elections in the states.


RE: My bill
By FaaR on 11/4/2013 5:45:42 PM , Rating: 1
Lucky you that the POTUS does not have a seat in congress, or you'd be quite possibly be looking at jailtime right now, /s notwithstanding.

America, greatest country on earth, or so they say anyway...


RE: My bill
By KCjoker on 11/5/2013 6:32:35 PM , Rating: 3
Well, we used to be...then Clinton passed NAFTA. Then we had Bush who was terrible...then we got Obama who makes bush look like a genius.


RE: My bill
By corduroygt on 11/7/2013 4:59:22 PM , Rating: 1
It's actually the other way around. Obama is a mediocre president but Bush made him look like a genius.


RE: My bill
By ritualm on 11/4/2013 7:33:19 PM , Rating: 3
The good news: they'll be on the news.
The bad news: they won't live long enough to see it.
The ugly: who is "they"? Well, you figure it out.

Unless California throws high hell at her, DiFi won't care. So at this point you'll want something infinitely more violent and brutal than a recall. Bonus points if the result also proves why relinquishing privacy completely does nothing to improve overall security.


RE: My bill
By mmatis on 11/5/2013 8:34:14 AM , Rating: 2
Well said.


RE: My bill
By inperfectdarkness on 11/5/2013 4:50:55 AM , Rating: 4
He that would relinquish essential freedom for temporary security deserves neither.

-Benjamin Franklin


RE: My bill
By Mint on 11/5/2013 6:01:16 AM , Rating: 2
Sadly, that applies to the majority of Americans:
http://www.people-press.org/2013/06/10/majority-vi...


RE: My bill
By marvdmartian on 11/5/2013 7:42:16 AM , Rating: 2
Here's a better one. Any politician who fails to support and defend the US Constitution, as they swore to do, will be summarily judged, found guilty, and thrown into prison for the remainder of their days.

That ought to clear the chambers out pretty quickly, and make room for some fresh blood. Of course, we'd have to do it a little bit at a time, so we don't have a power vacuum in DC.

Not that we don't already.....


RE: My bill
By Jacerie on 11/5/2013 9:48:28 AM , Rating: 2
Can we get a +6?


RE: My bill
By elleehswon on 11/5/2013 11:12:33 AM , Rating: 2
would vote this a 6...

especially because i get a barn out of it !!! yeah boi!!!!!


The real question
By tamalero on 11/4/2013 4:42:37 PM , Rating: 2
Is to protect WHO?
seems these rules are more to protect an increasingly bigger gob going towards fascism than actually protecting against real threats to the citizens.




RE: The real question
By Reclaimer77 on 11/4/2013 5:14:28 PM , Rating: 1
Under this Administration, black is white and visa versa.

We're told that with the death of Bin Laden, our enemies are vanquished. Then whenever it's politically convenient, we need protection from them still.

We're told these people are our enemy, then we give them aid and comfort in Syria.

Nothing makes sense. Watching Jay Carney is about as credible as the Iraqi Information Minister. Obama just sends him to tell us lie after lie.


RE: The real question
By fic2 on 11/4/2013 5:30:27 PM , Rating: 2
Oh, please, this started long before "this" administration and will continue long after.


RE: The real question
By Reclaimer77 on 11/4/2013 5:32:06 PM , Rating: 1
Live in the now man, live in the now.


RE: The real question
By FaaR on 11/4/2013 5:49:43 PM , Rating: 2
Saddam bought yellowcake from Africa. Everybody knows it...


RE: The real question
By Motoman on 11/4/2013 7:21:41 PM , Rating: 3
Yes, but little did he know...the cake was a lie.


RE: The real question
By Mint on 11/5/13, Rating: 0
RE: The real question
By Reclaimer77 on 11/5/2013 9:28:35 AM , Rating: 2
The Patriot Act in no way grants the NSA authority to spy on millions of Americans. If you weren't a Liberal hack you would know that much at least.

In fact no act of Congress allows for this. The NSA is operating above the law, under direct orders of the President.


RE: The real question
By fleshconsumed on 11/5/2013 12:45:39 PM , Rating: 2
NSA is using Patriot Act as a leeway. Both parties are equally complicit, but keep sticking your head in the sand. It's better than facing the truth.


RE: The real question
By AssBall on 11/5/2013 1:35:13 PM , Rating: 2
The executive branch is mis-using the NSA though. The executive branch is filled with hand picked democrat lifers and clueless yes-people.

This is abuse of the Patriot Act by the current executive branch administration, which, to be fair, is not bipartisan in the least.


RE: The real question
By Mint on 11/5/2013 2:26:23 PM , Rating: 2
Listen to the Cspan speech. It absolutely does grant them that ability. There is no line drawn about who is connected to a suspect.

http://en.wikipedia.org/wiki/Section_summary_of_th...

Why would Feingold go through such effort with his bill if it was already illegal? Why else would the DOJ release material saying the Bulk Surveillance Amendment would hamper investigations? The Patriot Act was passed almost unanimously, and is being used just like the writers of the law envisioned.

There's yet another bill proposal to outlaw bulk surveillance. The sponsors are 3 Dems and Rand Paul. Just watch it get shot down again.

Obama is too much of a chicken to handle the fallout of a terror incident under a more constrained NSA/FBI, so after implementing some meaningless token oversight, he let the NSA do what it wanted to.

I'd love to see your proof of Obama's direct orders to break the law.


RE: The real question
By kattanna on 11/5/2013 11:31:25 AM , Rating: 2
quote:
Iraqi Information Minister


you know.. I kinda miss him.. he was soo damn funny


Improvement
By ClownPuncher on 11/4/2013 6:31:38 PM , Rating: 2
I'd like to improve her butt by breaking my foot off in it.




RE: Improvement
By kfonda on 11/4/2013 7:09:47 PM , Rating: 2
Would that be covered under Obamacare?


RE: Improvement
By AssBall on 11/5/2013 11:38:01 AM , Rating: 2
Seriously can we just spay and neuter anyone who continues to cast votes for this ignorant incompetent crack whore?

http://www.theblaze.com/wp-content/uploads/2013/01...

The sheer stupidity of Fenstein goes way beyond hypocrisy.


I Robot
By AlvinCool on 11/4/13, Rating: 0
RE: I Robot
By futrtrubl on 11/4/2013 6:47:08 PM , Rating: 3
The book I Robot is a collection of short stories about the psychology of robots. Think you mean the almost completely unrelated movie.


By captainBOB on 11/5/2013 2:36:48 AM , Rating: 3
AHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAA AHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAA AHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAA AHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAA AHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAA AHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAA AHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAA AHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAA AHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAA AHAHAHAHAHAHAHHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAA

Yeah...... she's getting the boot. If she doesn't I propose we remove California from the Union.




Credibility
By Farfignewton on 11/4/2013 7:00:57 PM , Rating: 2
quote:
when Director James Clapper went to Congress he said they weren't collecting any data. They've lost a lot of credibility.


Not a lot. All and then some. If the government tells me the sky is blue tomorrow, I will go outside to see what they have done to it, and what color it has been changed to.




Yeah, Right
By bitmover461 on 11/5/2013 8:45:37 AM , Rating: 2
Does she look like a font of caring and compassion? Basically our government has become a blatantly unconstitutional entity with the participants just daring anyone to stop them.




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