Contractors would gain a database of data on everyday Americans and business rivals -- what could go wrong?

Oh boy, here we go again.  After enduring a speech packed with bewildering doubletalk in which President Barack Obama simultaneously defended and seemingly pledged to reform the U.S. National Security Agency (NSA), we now get his official course of action [press release] that sounds like he's planning to end phone collection via the retasking of the agency's massive databases that store call metadata.
But the saying "the devil is in the details" certainly applies to this plan.
I. Decoding the Doubletalk
To recap, in his last speech President Obama said:

[The NSA "PRISM" program] does not involve the content of phone calls or the names of people making calls.

This has been proven untrue.

He stated:

We cannot prevent terrorist attacks or cyberthreats without some capability to penetrate digital communications.

But so far the administration has been unable to prove that, suggesting the program might have at best helped to stop 1 or 2 terrorist plots in the past several years -- plots which may not even been in the U.S.  By contrast, traditional Constitutionally sound law enforcement strategies have stopped dozens, if not hundreds of terrorist plots in the U.S.  So it is nothing short of ludicrous to suggest that a tool that has proven itself highly ineffective -- if not completely useless -- is essential to national security.

Yes We Scan
[Image Source: Patheos]

And he asserts:

I did not ... stop these programs .... because I felt that they made us more secure... [and] because nothing in that initial review and nothing that I have learned since indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.

The tricky word here is "community", as agents have certainly sought to violate the law and behaved in a cavalier manner.  Leaked audits have proven that in several instances agents have spied on former or current lovers -- so-called "LOVEINT".  
A sort of cognitive dissonance oft appeared in the speech.  For example, he claimed:

[Agents are] not abusing authorities in order to listen to your private phone calls or read your emails.

(Err... yes they are, at times.)

... and then seemingly acknowledging that abuse did sometimes occur, stating:

When mistakes are made -- which is inevitable in any large and complicated human enterprise, they correct those mistakes...

prayer of serenity
It takes much wisdom to tell the truth, and find the difference between true change and false hopes. [Image SourceL STEOCH]

Perhaps most telling was his statement:

Improved rules were proposed by the government and approved by the Foreign Intelligence Surveillance Court. And we've sought to keep Congress continually updated on these activities.

Note how he uses the word "government" to avoid clueing the public in on the reality that his administration proposed these rules.  And also note that he views effectively warrantless mass searches of Americans -- aka bulk data collection -- as an "improvement". 

So there was cause to be wary when he stated:

I have instructed the intelligence community and the attorney general to use this transition period to develop options for a new approach that can match the capabilities and fill the gaps that the Section 215 program was designed to address, without the government holding this metadata itself. They will report back to me with options for alternative approaches before the program comes up for reauthorization on March 28th.

That takes us to today's announcement, which is basically his plan for the future of bulk data/metadata collection, or -- put in plain English -- the President's plan on spying on law-abiding Americans, our allies, our economic rivals, and the rest of the world.
II. Decoding the Doubletalk -- When Attacking Americans is Okay
The President already made clear that he was rejecting one of the most fundamental pillars of the guidance his own independent panel suggested in December.
The panel suggested that all data from Americans "be purged upon detection" and not stored in NSA databases.  President Obama said no.
Now, had he accepted that proposal it might not have even ended bulk collection, but it would at least strike one key rhetoric game that the administration has been playing, namely claiming that automated inspection of Americans' data is not spying.  Documents have revealed that the NSA has written scripts -- so called "expert systems" -- which NSA documents claim rival the analysis capabilities of the human mind.
These master scripts are capable of not only collecting data, but also launching attacks on autodetected targets.  One of their favorite tactics is to intercept Windows Error Messages in an attempt to identify vulnerabilities on the target's computers and then launching malware attacks against them.  The scripts employ all manner of cybercriminal tactics, including Trojan spam, phishing, and DDOS attacks from hijacked IRC botnets.

NSA malware
The NSA and President Obama view attacking Americans with malware and spam via automated scripts as "okay". [Image Source:]

But to the President and the NSA, it's not okay for an agent to attack a law-abiding American, but it is okay to create a script that falsely identifies Americans and then targets them with criminal attacks.
Likewise, it's okay to sabotage global encryption in the name of "national security" and to use expert system scripts to mine and store Americans' data for up to 15 years.  But, remember, it's not okay for agents to individually store your data.  Are you catching on?
In the NSA mindset imagine if your neighbors got on your nerves and you wanted to kill them -- literally.  It would not be okay to get a gun and shoot them.  But it would be okay to plant land mines all over your neighborhood.  After all, if they happen to step on them and die you didn't technically kill them yourself (by the NSA's logic) -- the tool you activated (the land mine) did!
Clearly this kind of thinking is psychotic and would land you in prison if taken too far.
III. Why the Bill Almost Certainly Calls For Private Sector Storage of Spy Data
So now that we know what the President isn't doing and how to decode the doubletalk, what is he doing?
The plan also does nothing to stop or scale back the sabotage/cybercriminal attacks the NSA is employing against Americans and citizens of ally states.  Nor does it stop the collection of various forms of intercepted -- and at times decrypted -- internet traffic.  It deals solely with the first, and most public kind of NSA data collection -- collection of phone records.
Sources close to the NSA have indicated that the agency captures roughly 99 percent of Americans' telephone metadata on a daily basis.  Under the new plan the administration craftily creates the appearance that the government is ending data storage, while at the same time giving itself and future administrations leeway to sneakily expand it.

NSA surveillance
The new plan solely relates to metadata collection. [Image Source: CBS]

The key to decoding the President's plan lies in how it leaves the door open to voluntary private sector cooperation in spying on Americans.  Under the plan the NSA would "stop" data storage.  And I put "stop" in quotes, because the NSA is not really stopping at all -- it's almost certainly just recruiting a corporate crony to store the data it collects so it can claim it isn't storing it.
This proposal could be very good news for a select few Americans.  If you happen to be a large shareholder of Verizon Communications Inc. (VZ) or AT&T Inc. (T) -- two of the likely leading candidates to privatize the NSA's currently in-house storage -- you are likely salivating at this policy proposal.  
Note the President plan (as elaborated by Congress) carefully says that there are no new data storage "requirements" for carriers.  Note the key word is "requirements".  The President's plan certainly allows the NSA to take the budget allocated to it to be spent on spying (which it is largely allowed to spend as it sees fit) and allocate that money to contracting the carriers to store Americans' metadata.  Carriers aren't "required" to do it, but with the choices "refuse to collect" or "accept a big payday" guess which one the carriers will choose?
The plan hints at, but avoids explicitly mentioning that kind of contractual relationship, which is perfect legal under budget laws and under the PATRIOT Act.  But given the fact that it makes no mention of stopping collection of the metadata, one must ask the natural question -- if you're not stopping collection and you can't store it, who is storing it for you?  The obvious answer is the phone companies.
To say the President's plan "stops storage" is about like saying that a person who hires a hitman didn't kill the victim.  The instigator is the same, there's just now someone else doing your dirty work for you -- someone else you can blame if someone catches wind of the scheme.
IV. Perfect Plan for Corporate Espionage
And the plan creates new dangers.  First it raises the likelihood of more money being spent on likely illegal spying on Americans.  Second, it raises the danger of corporate espionage.
Imagine, being paid billions more to store everyone's metadata, phone call snippets, and other mined data.  And imagine having access to all your competitors’ data, with loose, nebulous restrictions.  Sounds great, right?
You must admit the President does have a gift for irony.  In his previous speech he equivocated:

Challenges to our privacy do not come from government alone. Corporations of all shapes and sizes track what you buy, store and analyze our data and use it for commercial purposes. That’s how those targeted ads pop up on your computer and your smartphone periodically.

He also comments:

We do not collect intelligence to provide a competitive advantage to U.S. companies or U.S. commercial sectors.

Interesting choice of comments, considering the President's new proposal is to hand a massive, mineable set of data to a handful of private corporate contractors -- including data on their competitors.  Remember most corporations are concerned about one thing -- profit.  That's not evil; it's just the nature of the free market.
So naturally they would lobby to get paid more to collect more data, even if that means losing some privacy and freedom.  And in all likelihood at some point one or more of these contractors would mine their data set searching for information on their competitors.
After all, that same central driving commandment (shareholder profit) of the corporate world has frequently led executives to break the law at times.  Sometimes they get caught (see: Enron).  Sometimes they don't.  But if you have the opportunity to learn all of your competitors' secrets and devastate them -- potentially without anyone finding out -- that's deliciously tempting.
The President isn't just proposing giving away a wealth of taxpayer money -- billions of dollars.  He's proposing giving that money so that for-profit corporations can safeguard the data of terrorists, law-abiding foreigners, criminal Americans, law-abiding Americans (great for advertising to if only you had data), and ...oh... both American and foreign businesses (including rivals of the contractors).
And a final note -- by offloading storage to contractors -- the NSA gains the opportunity to expand its storage of other kinds of Americans' data (effectively without warrant), by retasking facilities currently used to store metadata for new types of storage.  So the NSA may stop personally storing your phone records, but now it can store your email.

All seeing eye
The plan offloads metadata stoage responsibilities so the NSA can retask its data centers to increasing spying on other kinds of American data. [Image Source: Business Insider]

You didn't think it was going to tear its fancy data centers that it spent billions on down, did you?

V. Republicans Jump on the President's War Wagon

The President has powerful allies that will look to help put this plan through.  These allies lie on both supposed "sides" of the political spectrum.  Indeed, the plan itself -- which according to The New York Times was crafted closely in unison with the Obama administration -- was sponsored by a bipartisan duo: Representative Michael J. "Mike" Rogers (R-MI) and Representative Charles Albert "Dutch" Ruppersberger III (D-MD).

Rep. Rogers involvement isn't exactly surprising.  While the Republican Congressman has opposed Obama on a handful of talking point issues, he has strongly supported the President on many of the most important ones.  Since day one he attacked Mr. Snowden's credibility, telling the press soon after the leak:

He [Snowden] is lying. It's impossible for him to do what he was saying he could do.  I hope that we don't decide that our national security interests are going to be determined by a high-school dropout who had a whole series of both academic troubles and employment troubles.

Of course now Mr. Snowden has proven that he wasn't lying, so to preserve the spy program that Rep. Rogers and the President both support, the duo has to get creative.

That creative work is entitled The FISA Transparency and Modernization Act of 2014 [PDF].  The bill is backed by a who's who of poorly closeted Obama administration supporters including Rep. Michele Marie Bachmann (R-Minn.) and Rep. Peter Thomas "Pete" King (R-N.Y.).

Recall that Rep. King suggested that the journalists reporting on Edward Snowden's leaked materials should be prosecuted in the tradition of Mother Russia:

I think something on this magnitude, there is an obligation, both moral but also legal, I believe, [to press charges] against a reporter disclosing something which would so severely compromise national security.

Rep. Bachmann, meanwhile, has been increasingly under attack from true conservative publications such as  Columnist Jacob Sullum of Reason points to the representative's questionable record, commenting:

Assuming that the Tea Partiers' preference for Bachmann, who seems not terribly bright and longer on rhetoric than action, is not merely a figment of her imagination, what good are they?

... and that was back in 2010.  Sci-fi writer turned political commentator Glenn Beck  -- while often over the top -- has recently attacked the Minnesota representative for her support of the President's NSA efforts say that she was "almost dead" to him.

Rep. Bachmann has expressed a strong desire to stop "the next Snowden".  And she has made it clear that she views NSA leaker Edward Joseph Snowden as a traitor for revealing to the American people what Congress and the President were spending so much money on.  She states:

It seems to be that the problem here is that an individual who worked within the system … broke laws and chose to declassify highly sensitive classified information.

It seems to me that’s where our focus should be on how there could be a betrayal of trust and how a traitor could do something like this to the American people. It seems to me that’s where our focus must be and how we can prevent something like that from ever happening again.

Ironically the only place the Rep. Bachmann diverges from the President is in feeling whatever scant, nebulous protections his proposals offer to Americans are too much.  In response to the President's Jan. NSA speech, she commented:

I am glad that President Obama acknowledged that the NSA has followed the law, and that they have not intentionally abused the authorities given to them by Congress.  Simply put, our intelligence community is focused on foreign intelligence gathering—not domestic surveillance—and that is what they have done.

The President also rightly explained that under the Section 215 program, the contents of the American people’s phone calls and emails are not being listened to, despite some claims to the contrary.

However, I am troubled by some of President Obama’s proposed changes that could undercut our national security. For instance, establishing a panel of personal advocates before the FISA Court, which is focused on foreign intelligence collection, could mean giving an extra level of protection to suspected terrorists that goes above and beyond the rights of the American people. In addition, the President proposed moving metadata storage outside of the NSA, but did not disclose where and how the records would be impenetrable like they are now. 

In other words, the only way to this Republican is challenging the President's views on unconstitutional mass spying on Americans is by offering up an even more extremist view with even more money spent and even less accountability.  But when it comes down to it, the pair is willing to meet in the middle and come up with a common plan to strength spying on Americans in the form of the FISA Modernization Act.
VI. FISA Modernization Act -- the Good and Bad, in Brief
So what does that act do besides transferring storage responsibilities (at cost to taxpayers) from the federal government to private contractors?  It also requires a new two-step process in which queries must be justified to a FISA judge (basically the same as before), but must also be sufficiently justified afterwards.  
So basically before they had to submit a request and now they have to submit a request and a results report.  Considering that the requests have been basically rubber stamped, it's hard to believe the FISA Court will be keen on carefully screening the results reports.  More than likely they'll be rubber-stamped, making this extra step in all likelihood theater.
Perhaps one of only two beneficial provisions of the bill comes from Rep. Terrycina Andrea "Terri" Sewell (D-AL) "requires a declassification review of every decision, order or opinion issued by the FISC that includes a significant construction or interpretation of the law".  While Rep. Sewell's decision to support the bill is questionable, her addition could make it modestly harder for the executive branch to do very extreme abuses such as using FISA Court orders to spy on Congress.
The other positive provision is the bill's ban on "bulk firearm sales records, library records, medical records, tax returns, educational records, and other sensitive personal records".  Presumably the NSA collects much of this information given that it collects 75 percent of internet traffic.  How exactly it's going to stop doing that is pretty interesting, but it would put pressure on it to at least try to avoid collecting those pieces of data.
VII. Civil Liberties Groups -- This Isn't the Bill You're Looking For
Civil liberty advocates have criticized the FISA Modernization bill, while acknowledging the few good things it has to offer.  Comments Anthony D. Romero, executive director of the American Civil Liberties Union (ACLU):

The president’s plan is a major step in the right direction and a victory for privacy. But this must be the beginning of surveillance reform, not the end. It is gratifying to know that the president has heard the growing bipartisan opposition to the NSA’S mass collection of phone records, and will heed the advice of his own review panel. However, today's announcement leaves in place other surveillance programs with equally troubling implications for civil liberties.

[However] Comprehensive reform should begin with passage of the USA FREEDOM Act, a bill that safeguards privacy while also ensuring that the government has the tools it needs to investigate real threats. We must restore the proper balance between security and our constitutional rights.

United States of Surveillance
The United States needs to act quickly lest it become "the United States of Surveillance".
[Image Source: Occupy]

Likewise the Electronic Frontier Foundation (EFF) has commented:

Both the Obama administration and the Intelligence Committee suggest that mass collection end with no new data retention requirements for telephone companies. This is good news, but we have not seen the details of either and details, as we have learned, are very important in assessing suggested changes to the NSA’s mass spying.

But comparing what we know, it appears that the Obama administration's proposal requires significantly more judicial review—not just reviewing procedures but reviewing actual search requests—so it's preferable to the Intelligence Committee’s approach.

Yet a new legislative proposal isn’t necessary here.  There is already a bill ending bulk collection. It's called the USA FREEDOM Act by Judiciary Committee chairs Sen. Patrick Leahy and Rep. Jim Sensenbrenner. It's a giant step forward and better than either approach floated today since it offers more comprehensive reform, although some changes are still needed.  We urge the administration and the Intelligence Committees to support the USA FREEDOM.

Or better still, we urge the Administration to simply decide that it will stop misusing section 215 of the Patriot Act and section 702 of the FISA Amendments Act and Executive Order 12333 and whatever else it is secretly relying on to stop mass spying.  The executive branch does not need congressional approval to stop the spying; nothing Congress has done compels it to engage in bulk collection.  It could simply issue a new Executive Order requiring the NSA to stop.

Also, the Obama administration does not go beyond the telephone records programs, which are important, but are only a relatively small piece of the NSA's surveillance and, by itself won’t stop mass surveillance.  We continue to believe that comprehensive public review is needed through a new Church Committee to ensure that all of the NSA's mass surveillance is brought within the rule of law and the constitution. Given all the various ways that the NSA has overreached, piecemeal change is not enough.

Both organizations instead back a proposal by "USA Freedom Act of 2013", cosponsored by Sens. Michael Shumway "Mike" Lee (R-Utah) and Patrick Joseph Leahy (D-Verm.) (among others).  
VIII. USA Freedom Act -- Less Doubletalk, More "Hope" and "Change"
Basically the USA Freedom Act does all the good things of the FISA Modernization Act (more judicial oversight, more declassification of FISA decisions, etc.), but critically it also goes a step further and strictly bans NSA collecting data from Americans.
That's a crucial difference.  The FISA Modernization Act seemingly adds new hurdles to data collect, but it also leaves the door open to both collection and querying of Americans' data via bulk warrants.  The USA Freedom Act bans bulk collection.
That difference has triggered a civil war within both parties in Congress.  
It is clear that the FISA Modernization Act -- the side that the President backs -- is the losing proposal for American freedom.  As the ACLU says, in some ways it may make the NSA spying program less abusive, but in some ways it may make it worse.

NSA protest
The ACLU is sending the right message here: can we stop spying on Americans?  Yes we can.  But the President's plan does not do that. [Image Source: AP]

If the USA Freedom Act is passed law enforcement is still absolutely allowed to collect the data of Americans suspected of terrorism.  They simply have to commit due process, going to a judge for a warrant.  This isn't rocket science -- it's the law under the Constitution and it's worked in America for close to two and a half centuries.

The only thing the USA Freedom Act prevents is general searches -- a tactic employed by the imperial British prior to the American Revolution.  That tactic helped incite the Founding Fathers to rebellion.  By contrast the FISA Modernization Act institutionalizes that tactic, and -- with the proper dose of psychotic doubletalk -- paves the wave for the government to tax and spy more than ever before.

Sources: The White House [press release], Rep. Mike Rogers, Congress Bill Text [PDF], The New York Times

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