Tag Archives: PATRIOT Act

Fixing the problem of NSA spying

There’s been lots of talk about the problem of NSA spying the last few days, and some partisan braying about it.  But the real question is: what do we do now?  The reality is that the majority of Congress stands overwhelmingly in favor of these programs, and Presidents of both parties have supported these programs, which makes it highly unlikely that they’re going to be stopped completely.  What are practical things that can be done to ensure that the privacy impacts of these programs are limited while still giving the government the data it needs to investigate potential terrorist plots?

Realistic policy options fall into two categories:  1.) reduce what data can be collected and 2.) improve transparency.

Reducing the data the NSA can collect

Changing the data the NSA can collect would require Congressional action to modify the relevant statutes in place (principally Section 215 of the PATRIOT Act), and three primary ideas for accomplishing this have come forward:

  1. Allow the data collection to continue but require a warrant based on probable cause to access any of the records for a U.S. citizen.  This approach was introduced as legislation by Sen. Rand Paul (R-Kentucky), and would raise the legal standard for accessing the collected data.
  2. Limit data collection to eliminate purely domestic calls.  Raised as an alternative to the 2008 FISA Amendments Act, this would limit the collection of data to calls where at least one of the callers was foreign, except in cases where a definitive connection to terrorist activity could result in a warrant to acquire that data.
  3. Limit data collection to a suspicion-based standard.  Instead of doing a dragnet of all calls made, data collection could only occur records based on a reasonable suspicion of terrorist activity — of someone suspected of being a terrorist or spy, someone called by a terrorist suspect, or potentially somewhat broader searches, such as calls made from a building where terrorist activity is suspected of taking place.

Improve transparency of current programs

If none of the options above are taken to limit the data collected, perhaps the least we could expect is a better understanding of what sort of data collection is being done in our name.  Here are some of the options available to accomplish this:

  1. Declassify Foreign Intelligence Surveillance Court (FISC) decisions interpreting Section 215 of the PATRIOT Act.  Introduced today as a bill in the Senate by a bipartisan group of eight Senators, including Minnesota Sen. Al Franken, this bill would compel the release of these decisions, so the legal logic could be evaluated and debated.  President Obama could also choose to do this via executive order.
  2. Release more details about how these programs work.  Can the NSA listen in on calls?  If so, when and why?  What is the standard for accessing the collected call metadata?  How long is the data stored?  Has the data ever been accessed for “routine” police work, or is it access limited to solely terrorism/national security related issues?  How are the programs audited for potential abuse?
  3. Permit court challenges towards these programs to move forward.  Multiple lawsuits have been filed against the government over warrantless wiretapping and data collection, but all have failed to reach the trial phase.  This is because the government (under both the Bush and Obama Administrations) have fought these cases on a standing issue.  What this means is that the government has alleged that the persons bringing the lawsuit can’t prove that their data was collected or their calls listened to, so they can’t prove they were harmed by the activity.  With no harm, they don’t have standing to sue in court.  The Verizon allegations — which cover millions of Americans — may make it impossible for the Department of Justice to continue these sorts of claims going forward.  If the Administration feels they are on solid legal ground with these programs, they should allow these cases to go to trial and win them definitively.

None of these six ideas provide a definitive firewall between government and your personal data, but they are practical approaches that could work incrementally to improve the current situation.  Getting them accomplished, though, will require application of political pressure on politicians in both parties.  Calls and e-mails to your Senators and Representatives will help keep the ball moving forward.

Watching the Watchmen: the bipartisan failure on privacy

The revelations about the NSA spying program have set off a firestorm of partisan finger-pointing (such as this from late last week).  The reality, though, isn’t terribly complex.  Both parties are responsible for selling your privacy down the river with these sorts of programs.  There have been five key votes since 2001 that have been responsible for these programs.

The pattern shows that it doesn’t matter who’s in charge of the Presidency or Congress.  Washington D.C. will vote to take away your privacy, while fighting to make more and more of their actions secret.  The solution to this issue can’t be solved by switching which party is in charge — but rather by a sustained effort to keep pressure on both parties to do the right thing.  We must remain vigilant.

Below is a chart that shows the bipartisan failure on this issue, including votes by Minnesota’s Congressional delegation.  Click on the chart to see a larger version.

bipartisanfailure

Data sourced from THOMAS.gov

Ortman back from War College: firing wildly and with shiny tap-dance shoes

As we mentioned earlier in the week, State Senator (and possible U.S. Senate candidate) Julianne Ortman spent the week at the Army War College’s National Security Seminar.   Part of a new Army recruit’s basic training regimen includes learning how to shine shoes.  Well, it seems Ortman may have taken a lesson or two while there because she came back ready to attack and with shined-up and ready-to-go tap dancing shoes.

Earlier today, Ortman fired off several rounds of criticism at U.S. Senator Al Franken on Twitter, which was countered by myself and a few others — not to defend Franken (because he and the rest of Congress have a lot to answer for), but rather to ask Ortman what she would have done instead.  After all, it’s easy to criticize, but harder to advocate alternatives.   We saw this in effect during this legislative session’s budget battle, where Republicans never articulated an alternative budget.

Did Franken “hide” his knowledge of the NSA program?

Ortman’s initial attack against Franken called out the Senator for “hiding” the NSA program.  As a member of the Judiciary Committee, Franken had been briefed on the program to some level of detail.  Well, it is certainly true that Franken did not comment publicly on this topic until yesterday.  Why is that?  Because it was illegal for Franken to discuss it publicly. 

Section 215 of the PATRIOT Act modifies Section 501 (d) of the Foreign Intelligence Surveillance Act as to say:

“No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.”

Even worse, the briefings that lawmakers received on such programs were subject to unusually stringent security.  Lawmakers were not allowed to take notes, staffers were not allowed to attend, and per the provisions of the law stated above, the lawmakers were prohibited from talking about the programs.

So did Franken “hide” his knowledge of the programs?  No.  Did he do enough to push back?  The record on that is unclear.  Two Democratic Senators, Ron Wyden of Oregon and Mark Udall of Colorado, have been pushing the limits on these programs, obliquely hinting that there was something afoot.

Ortman seems to be suggesting that Franken should have done more.  Perhaps that’s true.  But one can only imagine if Franken had violated the law and revealed details of a classified national security program.  I sincerely doubt that Ortman would be saluting his whistleblowing — rather, she’d be crying about Franken putting our national security at risk.

Ortman goes on to make an additional charge:  namely, that the PATRIOT Act didn’t authorize such programs.  Unfortunately, Ortman provides no basis to back up her claims that have any merit.  And, sadly, she tap-dances around any of the direct questions asked of her — would she have voted for the PATRIOT Act and FISA modifications?  What is her argument for why these programs were prohibited?  Where was her outrage when these programs were authorized under a Republican administration? Does she think Franken should have broken the law and spread details of these programs?

While I haven’t attended the National Security Seminar, I can only imagine such brazenly partisan behavior probably isn’t considered in our nation’s best interest.  Let’s hope that if Ortman does run against Franken that she finds some lines of attack that aren’t based in distortions and falsehoods.

Here’s the entire exchange, so you can judge for yourself:

Congress, take back the wheel: NSA collection of phone numbers isn’t new

The news headlines are all aflutter this morning about the Guardian UK’s publication of a Foreign Intelligence Surveillance Court order requiring Verizon to turn over on an ongoing basis the metadata (phone numbers, time and length of calls, location, etc. — but no subscriber information) of all calls where at least one party was in the United States.

The practical impact of such a request is that the federal government has a record of every phone call made on the Verizon network, with enough information to identify who the caller is in at least 95% of the cases.  (Based on the metadata, it’s rather easy to figure out the identity of the caller.)

The court order in this case was signed by U.S. District Court Judge Roger Vinson, a Reagan appointee.

The sad reality, though, is that these programs that collect huge amounts of data aren’t new. They’ve just been largely ignored by the media — in both the Bush and Obama Administrations.  We know, for instance, that the federal government began similar activities shortly after 9/11 and the program in its current form has been ongoing since 2006.  The government’s ongoing efforts to keep such programs as secret as possible have thwarted attempts by the media and civil liberties groups to get to the bottom of the story.

What we see today is the result of a sad bipartisan abdication of responsibility by the United States Congress.  In the wake of 9/11, they passed the PATRIOT Act, which gave the executive branch broad powers to conduct such surveillance.  The PATRIOT Act passed Congress with broad bipartisan support in 2001 (Senate vote was 98-1, House vote was 357-66.), and was reauthorized in 2005, 2009, and 2011.

(As an aside, the powers in the PATRIOT Act were far broader than those requested by President Clinton in the wake of the Oklahoma City bombing.  Congressional Republicans were nearly universally opposed to Clinton’s plan and never let it out of committee.  Six years later, Republicans represented just two of the 67 Congressional “no” votes for the PATRIOT Act.)

Section 215 of the PATRIOT Act gives the federal government broad powers to ask for such information.  Unlike a traditional warrant where the standard is probable cause that the target was involved in a crime, the government only needs to show “reasonable grounds” that the requested information was “relevant to an authorized investigation . . . to obtain foreign intelligence information. . . or to protect against international terrorism or clandestine intelligence activities.”

Once the 2006 revelations of the first iteration of this data collection program came out, Congress did take action:  to make it perfectly clear that they saw the program as fully legal.  In 2007 and 2008, Congress passed bills that placed the program under the supervision of the Foreign Intelligence Surveillance Act, expanded its reach to cover purely domestic calls, and gave telecom companies retroactive immunity from damages resulting from the breach of privacy.  Reauthorized in 2011, these powers are now scheduled to sunset in 2017 if no Congressional action was taken.

After 9/11, a terrorism act of unprecedented boldness and effectiveness, it may have made some sense to give the executive branch the expansive powers of the PATRIOT Act to collect information to adequately respond to the Al-Qaeda threat.  Nearly 12 years later, though, we have a clearer picture of the threats we face and the tools we need to respond to them.  We also have gained perspective on what we may be giving up in order to secure the notion of security.

It’s time for Congress — politicians on both sides of the aisle need to work together on this one — to take back the wheel from the executive branch on these sorts of issues and craft some reasonable limits that prevent wholesale collection of data from individuals of the nature seen in this example.  This is Congress’s job, and we should expect them to get it done.

And while we’re at it, let’s not also forget who else has this data in question:  Verizon.  Now, there’s little we can do to prevent them from collecting said information other than not use their service or talk to someone who does, but what we can do is make sure that they — and other telecom companies — have to follow strict standards about how it is used.  Companies are using this information already, selling it to other companies and using it to market their own products to you.  Congress should be vigilant to make sure your data is not abused and your privacy not encroached upon.


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