Guest post by Gary Farber. Gary's home blog is Amygdala, and he invites you to read him there.
[Eric Martin: My friend Gary is going to be pitching in for a couple of days as I adjust to the enhanced parenting techniques that my son is submitting me too. And yes, sleep deprivation is torture.]
On December 31, 2009, three provisions of "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001," aka the "PATRIOT Act," sunset and expire.
Bills to reauthorize or amend these three provisions have been moving through the Congressional Judiciary Committees in the past two months.
The three sections are:
This is also known as "the John Doe" provision.
Also known as the section dealing with "national security letters," by which:
The third is:
What are these about, and why should we care?, you ask. As the ACLU explains:
National Security Letters (NSLs). The FBI uses NSLs to compel internet service providers, libraries, banks, and credit reporting companies to turn over sensitive information about their customers and patrons.
Using this data, the government can compile vast dossiers about innocent people. Government reports confirm that upwards of 50,000 of these secret record demands go out each year. In response to an ACLU lawsuit (Doe v. Holder), the Second Circuit Court of Appeal struck down as unconstitutional the part of the NSL law that gives the FBI the power to prohibit NSL recipients from telling anyone that the government has secretly requested customer Internet records.
Material Support Statute. This provision criminalizes providing "material support" to terrorists, defined as providing any tangible or intangible good, service or advice to a terrorist or designated group. As amended by the Patriot Act and other laws since September 11, this section criminalizes a wide array of activities, regardless of whether they actually or intentionally further terrorist goals or organizations. Federal courts have struck portions of the statute as unconstitutional and a number of cases have been dismissed or ended in mistrial.
FISA Amendments Act of 2008. This past summer, Congress passed a law to permit the government to conduct warrantless and suspicion-less dragnet collection of U.S. residents' international telephone calls and e-mails. This too must be amended to provide meaningful privacy protections and judicial oversight of the government's intrusive surveillance power.
How are NSLs abused?
Through NSLs the FBI can compile vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of e-mail addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website.
The provision also allows the FBI to forbid or "gag" anyone who receives an NSL from telling anyone about the record demand.
Since the Patriot Act was authorized in 2001, further relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase. The Justice Department's Inspector General has reported that between 2003 and 2006, the FBI issued nearly 200,000 NSLs. The inspector General has also found serious FBI abuses of the NSL power.
Nearly three and a half years ago, I wrote:
[...] But first, here [link rotted] we see that 9,254 "national security letters" were unilaterally issued by the Administration (without warrants, as per the PATRIOT ACT) in 2005; lots more here. Otherwise:
Foreign Intelligence Surveillance Act (FISA) wiretaps/searches:
* Submitted 2,074 applications in 2005 to the Foreign Intelligence Surveillance Court for wiretapping and searches of spies and terrorists. (1,758 in 2004)
* 2 of those were withdrawn before the court ruled. One was modified and resubmitted and approved by the court). (3 withdrawn, 1 re-submitted 2004)
* 2,072 were approved by the secret FISA court, but 61 were substantially modified. (1754 approved, 94 modified in 2004)
And Section 215 Orders for Business Records:
* Submitted 155 applications for business records (and maybe tangible things, like that guy's iPod)
* None withdrawn by government
* FISA court approved all 155 but modified 2 substantially
FISA Court: clearly turning down too many warrants.
Sarcasm is more than called for when our liberty is at stake.
We have no reason as yet to think the Obama Administration is doing better.
Julian Sanchez last week looked at an example from 2005 of very funny business with an NSL.
There have been two main bills introduced to "reform" the problems in these three sunsetting provisions of the "PATRIOT Act," as well as several other problematic aspects of both the "PATRIOT Act" and subsequent surveillance law revisions, including the FISA Amendments Act of 2008, which you'll recall gave the telecoms immunity from lawsuits, and which Senator Obama voted for.
One is the Feingold bill, the so-called "JUSTICE Act":
U.S. Senators Russ Feingold (D-WI), Dick Durbin (D-IL), Jon Tester (D-MT), Tom Udall (D-NM), Jeff Bingaman (D-NM), Bernie Sanders (I-VT), Daniel Akaka (D-HI) and Ron Wyden (D-OR) have introduced legislation to fix problems with surveillance laws that threaten the rights and liberties of American citizens. The Judicious Use of Surveillance Tools In Counterterrorism Efforts (JUSTICE) Act would reform the USA PATRIOT Act, the FISA Amendments Act and other surveillance authorities to protect Americans’ constitutional rights, while preserving the powers of our government to fight terrorism.
The JUSTICE Act reforms include more effective checks on government searches of Americans’ personal records, the “sneak and peek” search provision of the PATRIOT Act, “John Doe” roving wiretaps and other overbroad authorities. The bill will also reform the FISA Amendments Act, passed last year, by repealing the retroactive immunity provision, preventing “bulk collection” of the contents of Americans’ international communications, and prohibiting “reverse targeting” of innocent Americans. And the bill enables better oversight of the use of National Security Letters (NSLs) after the Department of Justice Inspector General issued reports detailing the misuse and abuse of the NSLs. The Senate Judiciary Committee will hold a hearing on Wednesday, September 23rd, on reauthorization of the USA PATRIOT Act.
What would the "JUSTICE Act" have done? A lot and a little. A lot of good, and still only revising the "PATRIOT Act" very little, indeed.
Infuriatingly, but utterly unsurprisingly, the proposed minor changes of the "JUSTICE Act" are far too radical for the Obama Administration, and much of the the Congress, and so Senator Patrick Leahy, chair of the Senate Judicary Committee proposed yet far thinner soup: the "USA PATRIOT Act Sunset Extension Act of 2009." Let's look at the "radical" proposed improvements of the Feingold, et al, "JUSTICE ACT":
[...] Title I – Reasonable Safeguards to Protect the Privacy of Americans’ Records Sections 101-106 – National Security Letters
The bill rewrites the National Security Letter (NSL) statutes to ensure the FBI can obtain basic information without a court order, but also adds reasonable safeguards to ensure NSLs are only used to obtain records of people who have some connection to terrorism or espionage, and to provide meaningful, constitutionally sound judicial review of NSLs and associated gag orders.
Section 107 – Section 215 Orders The bill would reauthorize the use of Section 215 business records orders under FISA, but with additional checks and balances to ensure these orders are only used to obtain records of people who have some connection to terrorism or espionage, and to provide meaningful, constitutionally sound judicial review of Section 215 orders and associated gag orders.
This is elementary stuff, these proposed Section NSL changes: National Security Letters shouldn't be used in mere criminal investigations.
Who would object to such a clarified restriction, which was supposed to be inherent in the first place? And who would object to judicial review, particularly of the unprecedented gag orders constraining telling anyone you've gotten an NSL letter?
Repeat: gag orders wouldn't be eliminated. The bill merely requires judicial review.
Next, "sneak and peek" searches, where the FBI or other agency breaks into your home or business, searches it, and leaves without you ever being informed, wouldn't be eliminated -- such searches would remain perfectly legal! -- but they'd be restricted to terrorism investigations.
[...] Section 201 – “Sneak & Peek” Searches The bill would retain the Patriot Act’s authorization of “sneak and peek” criminal searches but eliminate the overbroad catch-all provision that allows these secret searches in virtually any criminal case. It would shorten the presumptive time limits for notification, and create a statutory exclusionary rule.
Is this objectionable to any reader? Or should we just do away with the Fourth Amendment entirely?
The Feingold "JUSTICE Act" would have made a number of small changes in the FISA law: too many to list here, but one of the more significant would have been:
[...] Section 301 – FISA Roving Wiretaps The bill would reauthorize roving FISA wiretaps, but eliminate the possibility of “John Doe” roving wiretaps that identify neither the person nor the phone to be wiretapped. It would require agents to ascertain the presence of the target of a roving wiretap before beginning surveillance.
Julian Sanchez did a fine job of explaining Why Congress should not renew the PATRIOT Act's "lone wolf" provision.
[...] The extraordinary tools available to investigators under the Foreign Intelligence Surveillance Act (FISA), passed over 30 years ago in response to revelations of endemic executive abuse of spying powers, were originally designed to cover only "agents of foreign powers." The PATRIOT Act's "lone wolf" provision severed that necessary link for the first time, authorizing FISA spying within the United States on any "non-U.S. person" who "engages in international terrorism or activities in preparation therefor," and allowing the statute's definition of an "agent of a foreign power" to apply to suspects who, well, aren't. Justice Department officials say they've never used that power, but they'd like to keep it the arsenal just in case.
As with so many of the post-9/11 intelligence reforms, the lone wolf provision has its genesis in the misguided assumption that every intelligence failure is evidence that investigators need more power.
Courts have generally been extraordinarily deferential to the executive in the realm of foreign intelligence, and have suggested that the Fourth Amendment's protections against warrantless searches apply only weakly, if at all, in this context. But when it comes to domestic national security investigations, a unanimous Supreme Court has ruled that the usual restrictions remain largely intact. The court clearly saw the involvement of a "foreign power" as providing the distinction between the world of the criminal law's Fourth Amendment protections and the hazy arena where the executive enjoys far greater latitude. The "lone wolf" provision recklessly blurs that line, defying the common sense meaning of an "agent of a foreign power," and giving investigations that belong in the first world a dubious statutory foothold in the second.
Justice Department officials have suggested that the definition would cover a suspect who "self-radicalizes by means of information and training provided by a variety of international terrorist groups via the Internet," making a Web browser the distinction between a domestic threat and an international one. Activities "in preparation" for terrorism, according to the legislative history, may include the provision of "personnel, training, funding, or other means" for an attack.
While it's difficult to be an unwitting "member" of a terror group, nothing in the law requires that the contribution a lone wolf makes to terror activities be a knowing one. And while definitions of an "agent of a foreign power" applicable to citizens explicitly prohibit investigations conducted wholly on the basis of protected First Amendment activities, PATRIOT appears to permit "lone wolves" to be targeted merely on the basis of advocacy. Finally, while the criminal law requires "preparation" for terrorism to include a "substantial step" in the direction of carrying out an attack, the Justice Department has suggested that FISA's definition does not. Thus, not only may lone wolf suspects be monitored despite the absence of ties to a terror group, they may not even need to be engaged in criminal conduct.
So if you or anyone you have contact with "advocate" anything the FBI or another agency finds suspicious, hey, that's enough to get not just you wiretapped, but roving wiretaps instituted that need not identify you specifically, nor any specific phone, but if you happen to use one of those phones, or have any contact at all with anyone engaged in such suspicious advocacy, well, prepare for government agents enjoying all your "private" communications.
Sanchez further explains the abuses, and why the law, as per the "JUSTICE Act," should be curtailed. Among other aspects:
[...] Yet on the basis of such claims, a panicked Congress signed off on almost limitless authority to vacuum up international communications — authority that we already know has resulted in systematic "overcollection" of purely domestic conversations, and even resulted in the interception of former President Bill Clinton's e-mails.
In theory, the purpose of building "sunset" provisions into these new powers was to allow — indeed, to force — Congress to consider what changes might be needed in the event of such misuse. Given the incredible secrecy of intelligence investigations, this would be a dubious check even under ideal circumstances. But what's truly astonishing is that even known abuses don't seem to have given legislators second thoughts about resisting administration demands.
Among the reforms in Feingold's JUSTICE Act was a measure requiring targets of "roving" wiretaps to be identified, as is required under criminal wiretap statutes, rather than merely described. Unlike criminal taps, FISA eavesdropping tends to be extraordinarily broad, with any innocent communications picked up "minimized" later. Yet "minimization," the legal procedures meant to protect the privacy of innocent Americans when their communications are swept up in a FISA wiretap, does not mean deletion. In a 2003 case, US v. Sattar, prosecutors submitted 5,175 recordings made under FISA that had not been "minimized." Yet, faced with disclosure obligations at trial, it turned out that they were able to produce a far greater volume of recordings: more than 85,000 audio files.
Given that breadth, the risks inherent in "John Doe" warrants, which neither name a specific phone line or Internet account in advance nor identify a target, are obvious. Indeed, a 2005 Inspector General report on the FBI's translation backlogs revealed that among the eighty-seven years' worth of foreign language material recorded FISA in 2004 alone — a tiny fraction of what the NSA collects — there were an undisclosed number of "collections of materials from the wrong sources due to technical
Sanchez explains even further.
[...] Suppose, for instance, that a FISA warrant is issued for me, but investigators have somehow been unable to learn my identity. Among the data they have obtained for their description, however, are a photograph, a voiceprint from a recording of my phone conversation with a previous target, and the fact that I work at the Cato Institute. Now, this is surely sufficient to pick me out specifically for the purposes of a warrant initially meant for telephone or oral surveillance. The voiceprint can be used to pluck all and only my conversations from the calls on Cato’s lines. But a description sufficient to specify a unique target in that context may not be sufficient in the context of, say, Internet surveillance, as certain elements of the description become irrelevant, and the remaining threaten to cover a much larger pool of people. Alternatively, if someone has a very unusual regional dialect, that may be sufficiently specific to pinpoint their voice in one location or community using a looser matching algorithm (perhaps because there is no actual recording, or it is brief or of low quality), but insufficient if they travel to another location where many more people have similar accents.
We also know that individuals can often be uniquely identified by their pattern of social or communicative connections. For instance, researchers have found that they can take a completely anonymized “graph” of the social connections on a site like Facebook—basically giving everyone a name instead of a number, but preserving the pattern of who is friends with whom—and then use that graph to relink the numbers to names using the data of a different but overlapping social network like Flickr or Twitter. We know the same can be (and is) done with calling records—since in a sense your phone bill is a picture of another kind of social network. Using such methods of pattern analysis, investigators might determine when a new “burner” phone is being used by the same person they’d previously been targeting at another number, even if most or all of his contacts have alsoswitched phone numbers. Since, recall, the “person” who is the “target” of FISA surveillance may be a “group” or other “entity,” and since I don’t think Al Qaeda issues membership cards, the “description” of the target might consist of a pattern of connections thought to reliably distinguish those who are part of the group from those who merely have some casual link to another member.
[...] FISA wiretaps are covert; the targets typically will never learn that they occurred. FISA judges and legislators may be informed, at least in a summary way, about what surveillance was undertaken and what targeting methods were used, but especially if those methods are of the technologically sophisticated type I alluded to above, they are likely to have little choice but to defer to investigators on questions of their accuracy and specificity. Even assuming total honesty by the investigators, judges may not think to question whether a method of pattern analysis that is precise and accurate when applied (say) within a single city or metro area will be as precise at the national level, or whether, given changing social behavior, a method that was precise last year will also be precise next year. Does it matter if an Internet service initially used by a few thousands—including, perhaps, surveillance targets—comes to be embraced by millions? [...] What is absolutely essential to take away from this, though, is that these loose and lazy analogies to roving wiretaps in criminal investigations are utterly unhelpful in thinking about the specific problems of roving FISA surveillance.
This cries out for reform. And, of course, all the info goes here, as James Bamford updates:
On a remote edge of Utah's dry and arid high desert, where temperatures often zoom past 100 degrees, hard-hatted construction workers with top-secret clearances are preparing to build what may become America's equivalent of Jorge Luis Borges's "Library of Babel," a place where the collection of information is both infinite and at the same time monstrous, where the entire world's knowledge is stored, but not a single word is understood. At a million square feet, the mammoth $2 billion structure will be one-third larger than the US Capitol and will use the same amount of energy as every house in Salt Lake City combined.
Unlike Borges's "labyrinth of letters," this library expects few visitors. It's being built by the ultra-secret National Security Agency—which is primarily responsible for "signals intelligence," the collection and analysis of various forms of communication—to house trillions of phone calls, e-mail messages, and data trails: Web searches, parking receipts, bookstore visits, and other digital "pocket litter." Lacking adequate space and power at its city-sized Fort Meade, Maryland, headquarters, the NSA is also completing work on another data archive, this one in San Antonio, Texas, which will be nearly the size of the Alamodome.
Just how much information will be stored in these windowless cybertemples? A clue comes from a recent report prepared by the MITRE Corporation, a Pentagon think tank. "As the sensors associated with the various surveillance missions improve," says the report, referring to a variety of technical collection methods, "the data volumes are increasing with a projection that sensor data volume could potentially increase to the level of Yottabytes (1024 Bytes) by 2015." Roughly equal to about a septillion (1,000,000,000,000,000,000,000,000) pages of text, numbers beyond Yottabytes haven't yet been named. Once vacuumed up and stored in these near-infinite "libraries," the data are then analyzed by powerful infoweapons, supercomputers running complex algorithmic programs, to determine who among us may be—or may one day become—a terrorist. In the NSA's world of automated surveillance on steroids, every bit has a history and every keystroke tells a story.
Then there's the issue of "sneak and peek."
[...] The “sneak and peek” provision of the USA PATRIOT Act was used 1291 times in Fiscal Year 2008. Of those, it was used five times for “Terrorism” purposes. So, .0038% of the time, the “sneak and peek” provision was used to combat terrorism; which was, of course, the Act's original purpose. On the other end of the spectrum, it was used 843 times (65% of the time) for “drug offenses”. Clearly, this is a blatant violation of any interpretation of the Fourth Amendment, except where it's superseded by the USA PATRIOT Act.
See the full study done by the Administrative Office of United States Courts in July 2009 for details.
The last issues I'll cover regarding the proposed revisions the "JUSTICE Act" would have made are these two highly important changes:
[...] Section 501 – Domestic Terrorism The Patriot Act’s overbroad definition of domestic terrorism could cover acts of civil disobedience by political organizations. The bill would limit the qualifying offenses for domestic terrorism to those that constitute a federal crime of terrorism.
Section 502 – Material Support The bill would amend the overly broad criminal definition of material support for terrorism by specifying that a person must know or intend the support provided will be used for terrorist activity.
What crazy ideas are these?!
Again: the "PATRIOT Act" is supposed to be used to fight terrorism. It's not supposed to provide a grab bag of tools to be used against any criminal or every person.
Should this be controversial? Can anyone concerned with fighting terrorism explain the problem with these amendments?
But what we're apparently going to get is some version, as combined with the forthcoming House bill, of S. 1692: USA PATRIOT Act Sunset Extension Act of 2009.
Compare the two bills and current law. It's a very simple chart.
What's wrong with Leahy's "Sunset Extension Act" (supported by the White House)? [... The]
[...] bill, introduced by Sen. Patrick Leahy (D-VT), chair of the committee, passed with bipartisan support but has been denounced by civil liberties groups and privacy advocates.
Critics of the Leahy bill assert that the legislation does little to address the well known civil liberties concerns and extends sweeping law enforcement surveillance powers with little to no safeguards. For instance, as passed out of committee, the bill renews the roving "John Doe" wiretap authority that allows the federal government to obtain a wiretap order without the requirement to name the target or specify the phone lines and e-mail accounts to be monitored. Further, it offers little or no reform of other controversial Patriot Act provisions.
Reform of National Security Letters (NSLs) was also limited in the legislation. NSLs are used by the Justice Department like subpoenas to seek information from companies, such as Internet service providers and phone companies, about their subscribers. The Feingold-Durbin bill had included increased standards for NSL issuance, limitations on the types of information that can be obtained by NSLs, limitations on non-disclosure orders for NSLs, and limits on emergency use of NSLs. The Leahy bill only requires that the government draft an internal statement showing that the information sought is somehow relevant to an investigation. Conversely, the Feingold-Durbin standard would require discussion of specific facts, a much more rigorous standard. However, the committee noted that the Obama administration supports a relevance standard like that found in the Leahy bill.
Some of the provisions to protect civil liberties that the administration opposed, such as the restrictions on NSLs, were proposals that Obama had supported as a senator. In particular, Obama had supported the SAFE Act (S. 737) in 2005 that attempted to reform Section 215 orders that require anyone to produce tangible records relevant to an investigation to protect against international terrorism, including business records. The SAFE Act had been unanimously reported by a Republican-controlled committee and included the requirement of a link between records sought and a terrorist or other agent of a foreign power. Durbin proposed an amendment to the Leahy bill that would have added this standard, but it was voted down due to the administration’s opposition.
Some committee members reacted negatively to the committee vote to accept the Leahy bill for Senate debate. Feingold expressed his disappointment in the final version of the bill. Feingold likened the Senate Judiciary Committee to a "Prosecutor’s Committee" and stated that the bill "falls well short of what the Congress must do to correct the problems with the Patriot Act." This position was echoed by some advocates, including Leslie Harris, president of the Center for Democracy and Technology, who proclaimed that "the opportunity for real reform will not come again anytime soon. Congress needs to do the right thing, even if Obama will not."
Some minor reforms were included the final Leahy bill. The bill included reforms for "sneak and peek" searches and requires the executive branch to issue procedures to minimize the use of NSLs. However, these changes were not enough to garner the support of Feingold or many of the civil liberties groups following the legislation.
Meanwhile, the press coverage of all this has generally stunk or been next to nonexistent.
Marcy Wheeler has been doing 10,000 times better coverage at Emptywheel.
And now the battle goes to the House where House Judiciary Committee Chairman John Conyers, Jr. (D-Mich.), Constitution, Civil Rights, and Civil Liberties Subcommittee Chairman Jerrold Nadler (D-N.Y.), and Crime, Terrorism, and Homeland Security Subcommittee Chairman Bobby Scott (D-Va.) yesterday introduced the USA Patriot Amendments Act of 2009.
It's pretty much the same as the Feingold, et al, "JUSTICE ACT."
The rest is covered in H.R. 3846, FISA Amendments Act of 2009.
Conyers has also introduced further attempts at reform and oversight including "The Department of Justice Inspector General Authority Improvement Act of 2009," which would:
[...] authorize the Department of Justice Inspector General to investigate attorney misconduct within the Department of Justice. Under current law, all allegations of wrongdoing by the Department of Justice attorneys are required to be investigated by the by the department’s Office of Professional Responsibility, rather than the Inspector General. In contrast with the statutorily independent Inspector General, the Office of Professional Responsibility is supervised by the Attorney General.
This limitation on authority does not exist for any other agency Inspector General. The Department of Justice Inspector General Authority Improvement Act of 2009 will make the authority of the Department of Justice Inspector General consistent with that of all other agencies and will prevent future abuses and politicization within the Department.
And the "The Inspector General Authority Improvement Act of 2009," which would:
[...] provide the Inspectors General of the various agencies the authority to issue subpoenas for the testimony of former employees or contractors as part of certain investigations. Under current law, a critical witness can avoid being interviewed by an Inspector General, and thus seriously impede an investigation, by simply resigning from the agency.
These loopholes badly need to be closed.
Now you know what to write and call your Representative about.
Before I finish this post, although it's digressive, in the spirit of Hilzoy and Katherine R., I'd like to at least mention that the Supreme Court on Tuesday:
[...] agreed to decide whether federal courts have the power to order prisoners held at Guantánamo Bay to be released into the United States.
Yesterday, at the UN:
The U.N.'s top investigator on torture and punishment called Tuesday for a new U.N. convention to protect the rights of detainees, saying many are held for years and sometimes for a lifetime in inhuman and degrading conditions.
The Conservative government faced new questions yesterday about what it knew about the alleged torture of Afghan prisoners after opposition parties pounced on an explosive new book by the former head of the Canadian Forces, Rick Hillier.
After published allegations of torture surfaced in 2007, Conservative ministers denied they had any previous knowledge of problems with the transfer of detainees.
But Hillier now suggests he was aware of allegations possibly as early as 2006. He writes that he also warned officials in Ottawa that prisoner transfers would stop in the fall of 2007 unless inspectors visited Afghan jail continuously.
And you may have noticed that a few days ago in Britain, High Court Approves Releasing U.S. Intelligence Documents on Torture.
Finally, in a ludicrously minor step, Senate allows more transfers of detainees to U.S. for trial.
Yes, they concluded that it's actually possible detainees won't use their magical al Qaeda Mr. Miracle super escape powers.
Woo and hoo.
It's not all bad news, if you look at the trivial: Amherst, MA, has volunteered to take two Guantanamo prisoners.
Standish, Michigan, however, is wavering.
But at least not all elected Americans are crazy, even though most of the national Republicans, and too many of the national Democrats, are.
Finally, on a much-needed lighter note -- sort of -- Q&A: Our Threatiest Threat.
Now, go call, write, and visit your Representatives about the bills above. Do it today, tomorrow, or the rest of this week. Do it for America. Do it because it's right.
-- by Gary Farber, not Eric Martin.