The Marvelous Moment When a Few Patriot Act Spying Powers Sunset

Sen. Mitch McConnell

Three powers in the Patriot Act expired on Sunday night. Though temporary, the development marked the first time since the September 11th attacks that the expansive and covert global security state suffered a setback, where power was lost.

It was all because of National Security Agency whistleblower Edward Snowden and a shift in public consciousness brought about by what Snowden revealed about massive government surveillance.

Republican Senate Majority Leader Mitch McConnell was livid as he found himself with no choice but to call for a vote on a motion to debate the USA Freedom Act, a watered-down piece of reform legislation supported by President Barack Obama’s administration and the intelligence community which he had opposed.

On May 20, Senator Rand Paul held the Senate floor for ten and a half hours as he opposed extending provisions of the Patriot Act. His action single-handedly put the Senate in a position, where it would be difficult to prevent expiration.

There was one option: pass the USA Freedom Act, which maintained the “roving wiretap” and “lone wolf” provisions but made changes to the bulk phone records collection program.

On May 22, the USA Freedom Act failed to pass in the Senate. Senators scrambled to save the government’s spying powers. Senator Richard Burr and Senator Dianne Feinstein each proposed their own bills, which would have been very favorable to the country’s intelligence agencies had either piece of legislation gained support.

The Senate’s only alternative to simply letting powers expire was to support a bill that had failed earlier in May. McConnell had to call for a cloture vote on a bill that does not give government the same exact power agencies have had under the Patriot Act. In other words, McConnell had to concede that security hawks would suffer a rare defeat this round. (more…)

New York Times Pushes False Notion Both Sides of Patriot Act Debate Are Wrong

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An analysis published in the New York Times falsely equates arguments for and against extending provisions of the PATRIOT Act, making it seem as if those against extension are just as wrong as those pushing to preserve government spying powers.

“There is little evidence in the history of the expiring Patriot Act powers to bolster the arguments that either supporters or opponents are making,” according to a description of the analysis written by Charlie Savage.

With the headline, “Reality Checks in Debate Over Surveillance Laws,” it appropriately calls out Republican senators like Tom Cotton, who have claimed a lapse in “this critical tool would lead to attacks.” Savage notes that studies and testimony have both shown that in the program’s existence zero terrorist attacks have been thwarted.

However, in the next paragraphs, Savage casts opponents of extending the provisions as individuals who are comparably wrong:

At the same time, proponents of ending the program say it poses risks to Americans’ private lives, by permitting the government to know who has been calling psychiatrists or political groups, for example. But despite the discovery of technical violations of the rules several years ago, no evidence has emerged that the program has been misused for political or personal gain. As a result, the privacy-minded critics have had to couch their warnings in hypothetical terms.

“Even if we stipulate for purposes of this discussion that no one within the N.S.A. is currently abusing this program for nefarious political purposes,” Senator Rand Paul, who is running for the Republican presidential nomination, said in a filibuster-style floor speech last week, “can we say we are certain that will always be the case? Who is to say what might happen one year from now, two years from now, five years, 10 years or 15 years from now?”

While Savage may consider this to be equal to fear mongering about what will happen if spying powers are curtailed, “privacy-minded” opponents of the PATRIOT Act are not relying on the same hyperbole.

The only example Savage cites is very restrained and calculated. It is based on a concern that history could repeat itself because the country once experienced what it was like to have a domestic security state turned against citizens decades ago when J. Edgar Hoover was FBI director. And, in the example, Paul is making no claims about abuse for personal or political gain that cannot be backed up.

On the contrary, none of the supporters of the Patriot Act spying powers are as measured in their arguments. Not even officials from President Barack Obama’s administration are as level-headed in their rhetoric.

Administration officials have had a reporter from the Times print anonymous statements from them, one which suggests critics are playing “national security Russian roulette.” The administration maintains opponents are being “grossly irresponsible” because they want to have a debate and reform spying powers in a manner that much of the country actually supports.

Furthermore, it is inaccurate—and, at best, misleading—to write in any analysis that there is “no evidence” that “the program has been misused for political or personal gain.” (more…)

Senate Effort to Renew NSA Spying Powers Contains Provision to Stop Next Edward Snowden

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Senator Dianne Feinstein has proposed legislation to protect the National Security Agency from losing dragnet surveillance powers when Patriot Act provisions expire. But her bill would not only save spying powers but also codify into law a provision that would expressly enable the government to criminalize any national security whistleblower who may choose to follow the footsteps of NSA whistleblower Edward Snowden.

As first reported by journalist Marcy Wheeler, the provision in Feinstein’s bill [PDF] is modeled after the Espionage Act, which President Barack Obama’s administration has aggressively relied upon to prosecute a record number of whistleblowers. (Snowden was indicted under the Espionage Act.)

The provision would prohibit “unauthorized disclosures” by an “officer, employee, contractor, or consultant of the United States” or any “recipient of an order” issued under the Foreign Intelligence Surveillance Act (FISA), who “knowingly comes into possession of classified information or documents or materials containing classified information” of the US.

A person could be criminalized if they disclosed any information connected to an application to the FISA Court, an order approved by the court or information acquired under a directive issued by the court.

Knowingly communicating, transmitting and making available information to an “unauthorized person,” such as a journalist, would be criminal. Someone who “knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location,” as Snowden did before providing documents to journalists, would be violating the law as well.

Making information available to a reporter could potentially result in someone going to jail for ten years. Retaining documents at an unauthorized location could potentially result in a one-year prison sentence.

A similar provision was included in a bill introduced by Senator Richard Burr over the weekend. The bill was also drafted to protect dragnet surveillance powers.

Both Burr, a Republican who chairs the Senate intelligence committee, and Feinstein, a Democrat and former chair of the Senate intelligence committee, are powerful senators who have traditionally supported anti-leaks measures, which Senator Ron Wyden blocked in 2012.

Feinstein accused Snowden in June 2013 of “violating” his oath to defend the Constitution. She unequivocally stated, “He violated the law. It’s treason.” When Burr found about what Snowden revealed on mass surveillance, he was not concerned about the programs but rather about how a contractor like Snowden had access to so much material.

Jesselyn Radack, an attorney who has represented a number of whistleblowers such as Thomas Drake, Bill Binney, and currently represents Snowden, reacted, “Feinstein is the latest member of Congress to offer a non-compromise ‘compromise’ to replace the already-compromised USA Freedom Act. Her bill would essentially retain Richard Burr’s odious Section 215 mini-Espionage Act, imposing 10-year penalties on people like my NSA whistleblower clients Edward Snowden, William Binney and Thomas Drake, who told us what the intelligence community was really doing with the call records program.”

“The most disturbing aspect is the prospect of Congress codifying the Justice Department’s draconian use of the century-old Espionage Act into law when there’s a lot of validity that the Department has unconstitutionally applied the Espionage Act to whistleblowers.”

The provision contains no clear and present danger standard, which means it would not matter if a person knew the disclosure of information would result in no harm. The government would be under no obligation to present any evidence that a release of information caused grave damage or harmed anyone during prosecution. This would likely violate the First Amendment. (more…)

For 7 Years, FBI Defied Law for Seeking a Person’s Records Under Patriot Act

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A Justice Department inspector general’s report shows that for seven years the Federal Bureau of Investigation violated statutory law designed to restrict the agency’s surveillance power. During this period, the agency sought individuals’ records under the business records provision of the PATRIOT Act without adopting proper “minimization procedures” to protect privacy of US persons.

The FBI’s use of orders under Section 215 between 2007 and 2009 was examined by the inspector general. Whether the FBI complied with recommendations the inspector general made back in March 2008.

Section 215 makes it possible for the government to obtain “any tangible things,” such as books, records and other items from a business, organization or entity. They are supposed to be “relevant” to an “authorized investigation to obtain foreign intelligence information not concerning a US person or to protect against international terrorism or clandestine intelligence activities.” But the standard for relevance is very low.

The Section 215 provision is set to expire on June 1, and, as Senator Rand Paul comprehensively outlined while he held the Senate floor for over ten hours, there are many reasons to not reauthorize the provision. This report, which was completed eleven months ago but is dated May 2015, adds substantially to those reasons.

Under the PATRIOT Improvement and Reauthorization Act of 2005, the law required that certain “minimization procedures” be adopted to ensure the handling of US persons’ data was done appropriately. It was not until March 7, 2013, that the Attorney General and the Justice Department officially incorporated these procedures into requests for records. (Marcy Wheeler points out the Justice Department did not actually fully comply with legally required procedures until after NSA whistleblower Edward Snowden disclosed information.)

“The Attorney General’s and the [Justice] Department’s actions came 7 years after such procedures were required by the Reauthorization Act and 5 years after we concluded the interim procedures in 2006 were deficient,” the inspector general’s report [PDF] indicates.

In an understatement, the inspector general declares that the Justice Department “should have met its statutory obligation considerably earlier than March 2013.”

The report suggests that FBI personnel have made “strategic use of the legislative and technological changes by broadening the scope of materials sought in applications. Section 215 authority is not limited to requesting information related to the known subjects of specific underlying investigations. The authority is also used in investigations of groups comprised of unknown members and to obtain information in bulk concerning persons who are not the subjects of or associated with any FBI investigation.”

That seems hugely significant. FBI personnel are permitted to request records of persons who are not subjects of underlying investigations. The FBI uses the PATRIOT Act to request records on people when they do not even have an FBI investigation into those individuals.

FBI personnel with authorized access are apparently permitted to engage in some action involving records, which the Justice Department believes must keep secret. This action is used to determine whether records “reasonably appear to be foreign intelligence information, necessary to understand foreign intelligence information or evidence of a crime.”

National Security Division attorneys in the Justice Department and FBI case agents provided the inspector general with a “range of examples of material that would qualify under this criteria.” It is impossible for the public to know what this means because the Justice Department had it censored in the report.

Another term the FBI has conjured to expand its surveillance powers is “investigative value.” This is a term the inspector general discovered the FBI had introduced for allowing case agents “unconnected with the underlying investigation access to material received in response” to a Section 215 order. However, what “investigative value” means to the FBI and just how it stretches the boundaries of what the agency is authorized to do is anyone’s guess because, again, the agency’s definition is censored in the released report.

The “type of information that is categorized as metadata will likely continue to evolve and expand,” the report acknowledges. The FBI is obtaining “large collections of metadata,” which is data about the records but not the exact content from the records themselves. “Electronic communication transaction information” and two other types of data, which the FBI does not want the public to know about, are being sought through this provision of the PATRIOT Act. (more…)