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American Dream Betrayed

What The Proposed NSA Reforms Wouldn't Do

Ten months after Edward Snowden's first disclosures, three main legislative proposals have emerged for surveillance reform: one from President Obama, one from the House Intelligence Committee, and one favored by civil libertarians.

All the plans purport to end the bulk phone records collection program, but there are big differences - and a lot they don't do. Here's a rundown.

President Obama's Proposal

What it would do: As described, the president's proposal would prohibit the collection of bulk phone records. Instead, the government would seek individualized court orders every time it wants American phone metadata. The government would get the data from telecoms, which already keep it for at least 18 months.

The proposal would solidify some changes Obama has already made: For instance, since January, analysts have needed to get court approval before searching the phone records database. Also, NSA analysts have only been able to obtain records from people who are two "hops" away from a surveillance target - a target's friends' friends - rather than three "hops" away. Obama's proposal would make both of those policies law.

What it wouldn't do: It's hard to know. The White House hasn't released the actual text of the legislation, and lawmakers have yet to introduce it in Congress. But privacy advocates do have a lot of questions.

One thing the president hasn't proposed: Ending the bulk phone records program now. He could do that without any vote if he simply stopped asking the Foreign Intelligence Surveillance Court to reauthorize the program, as Sen. Patrick Leahy, D-Vt., has suggested.

The secret surveillance court's last 90-day order for Verizon phone records has expired. Obama reportedly wants the court to renew the program at least one more time, to give Congress a chance to pass new legislation. Until Congress acts, the NSA will continue collecting American phone records in bulk.

Of course, if Obama were to act unilaterally, another president could later reverse his changes. If Congress passes his proposal, his reforms will have the force of law.

The president's proposal also appears to address only one of the NSA's many surveillance programs. It doesn't seem to change the FISA Amendments Act, which allows the NSA to sweep up foreigners' communications without a warrant. In the process, the NSA "incidentally" collects Americans' communications.

In January, Obama said he would ask the Justice Department to limit the government's authority to use any American communications collected while targeting foreigners. The administration has not offered any details yet. However, even the Senate's biggest NSA critics say the FISA Amendments Act has been an effective counter-terrorism tool, so Congress is unlikely to repeal it.

FISA Transparency and Modernization Act

What it would do: Very little to limit surveillance. Introduced by House Intelligence Committee chairman Rep. Mike Rogers, R-Mich., and ranking member C.A. Dutch Ruppersberger, D-MD, this bill represents the wishes of the NSA's biggest defenders in Congress.

The bill nominally bans the government's bulk collection of phone records. Like Obama's plan, telecoms would keep the records, but in this proposal, the government could request the records without a court order.

The bill also says it would prohibit the government from indiscriminate collection of other kinds of data, including "library circulation records," "firearm sales records," and "tax return records." But the government could still use search terms to get the records it wants.

What else it would do: Roll back current protections in the law. The legislation would no longer require that the government get a court order before obtaining American records. Instead, the secret surveillance court would review the privacy procedures before the Justice Department collects any records, and the court could also tell the government to stop collecting records after the fact.

Also, under current law, the government needs to show that records are related to foreign terrorism or clandestine intelligence activities. Rogers' bill would change that standard, requiring the government to show that records are for an individual who is associated with a "foreign power" - a broad term that includes terrorist groups, foreign governments and foreign political groups.

If the bill passes, a lot would depend on how the secret surveillance court interprets it. For instance, what kinds of "selection terms" could the government use to search for records? The broader the search terms, the more likely it is that innocent people will get caught in the dragnet.

Finally, Rogers' bill would not amend the FISA Amendments Act. "I don't believe that foreign collection on foreign soil is something that we need to change," Rogers said.

This bill has House Speaker John Boehner's support.

USA Freedom Act

What it would do: A lot. First, the bill's authors, Democratic senator Leahy and Patriot Act author Rep. James Sensenbrenner, R-Wis., say the legislation would end all bulk collection of American records. To do so, they'd narrow the language in the Patriot Act to require that the government only collects records that are " relevant and material" to an authorized investigation.

To qualify, an investigation must be related to foreign terrorism or clandestine activities, and the records must directly "pertain" to a foreign power.

The proposal would also close a so-called backdoor loophole that allows the NSA to search its databases for the content of Americans' communications.

Under the new bill, analysts would need an individualized warrant to access any domestic content collected "incidentally."

In addition, the lawmakers would tighten oversight of national security letters, a kind of administrative subpoena that lets the FBI obtain records related to "national security" without a court order.

The idea is to make sure that the government can't use the national security letters law to justify bulk collection of American records in the future.

What it wouldn't do: The bill covers a lot of bases and has won the support of the ACLU, the Electronic Frontier Foundation, 142 representatives and 21 senators.

However, some worry that the bill does not unequivocally ban bulk collection of American records. Again, a lot depends on how the Foreign Intelligence Surveillance Court interprets the statute. While this bill's language is narrower than current law, we now know the secret surveillance court has interpreted the Patriot Act very broadly.

The EFF has suggested that the bill's sponsors make their intent more explicit.

This bill has by far the most co-sponsors, but its prospects are uncertain - it was introduced in October, and it still hasn't reached the floor.

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Previously:
* Technologists Turn On Obama.

* Dear Supreme Court: Set Limits On Cell Phone Searches.

* EFF Fights National Security Letter Demands On Behalf Of Telecom, Internet Company.

* Eighth-Grader Schools The NSA.

* You Know Who Else Collected Metadata? The Stasi.

* Today We Fight Back.

* The Day We Fight Back.

* FAQ: The NSA's Angry Birds.

* Jon Stewart: The Old Hope-A-Dope.

* Four Blatantly False Claims Obama Has Made About NSA Surveillance.

* EFF To DOJ In Lawsuit: Stop Pretending Information Revealed About NSA Over Last Seven Months Is Still A Secret.

* Judge On NSA Case Cites 9/11 Report, But It Doesn't Actually Support His Ruling.

* Edward Snowden's Christmas Message.

* Jon Stewart: Obama Totally Lying About NSA Spying.

* Presidential Panel To NSA: Stop Undermining Encryption.

* The NSA Is Coming To Town.

* 60 Minutes We Can't Get Back.

* Why Care About The NSA?

* NSA Surveillance Drives Writers To Self-Censor.

* Filed: 22 Firsthand Accounts Of How NSA Surveillance Chilled The Right To Association.

* Claim On 'Attacks Thwarted' By NSA Spreads Despite Lack Of Evidence.

* Obama Vs. The World.

* How A Telecom Helped The Government Spy On Me.

* UN Member States Asked To End Unchecked Surveillance.

* Government Standards Agency: Don't Follow Our Encryption Guidelines Because NSA.

* Five More Organizations Join Lawsuit Against NSA.

* A Scandal Of Historic Proportions.

* Item: NSA Briefing.

* The Case Of The Missing NSA Blog Post.

* The NSA Is Out Of Control.

* Patriot Act Author Joins Lawsuit Against NSA.

* Obama's Promises Disappear From Web.

* Why NSA Snooping Is A Bigger Deal In Germany.

* Item: Today's NSA Briefing.

* NSA Briefing: It Just Got Worse (Again).

* Song of the Moment: Party at the NSA.

* It Not Only Can Happen Here, It Is Happening Here.

* What NSA Transparency Looks Like.

* America's Lying About Spying: Worse Than You Think.

* Obama Continues To Lie His Ass Off About The NSA.

* The Surveillance Reforms Obama Supported Before He Was President.

* America's Spying: Worse Than You Think.

* Has The U.S. Government Lied About Its Snooping? Let's Go To The Videotape.

* Who Are We At War With? That's Classified.

* Six Ways Congress May Reform NSA Snooping.

* NSA Says It Can't Search Its Own E-Mails.

* Does The NSA Tap That?

* Obama Explains The Difference Between His Spying And Bush's Spying.

* FAQ: What You Need To Know About The NSA's Surveillance Programs.

* NSA: Responding To This FOIA Would Help "Our Adversaries".

* Fact-Check: The NSA And 9/11.

* The NSA's Black Hole: 5 Things We Still Don't Know About The Agency's Snooping.

* Defenders Of NSA Surveillance Citing Chicago Case Omit Most Of Mumbai Plotter's Story.

* Obama's War On Truth And Transparency.

* ProPublica's Guide To The Best Stories On The Growing Surveillance State.

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See also:
* Jimmy Carter: America's Shameful Human Rights Record.

* James Goodale: Only Nixon Harmed A Free Press More.

* Daniel Ellsberg: Obama Has Committed Impeachable Offenses.

* Paul Steiger: Why Reporters In The U.S. Now Need Protection.

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Comments welcome.




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Posted on April 4, 2014


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