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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





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