Recently a US Court of Appeals ruled bulk data collection by the NSA was not authorized by Section 215 of the Patriot Act, causing wide celebration across Internet news outlets.
The lawsuit, brought by the ACLU, and originally dismissed by a lower court, challenged the notion Section 215, colloquially called the “library records” provision, provided the legal basis for mass NSA collection of data. Section 215 modifies the Foreign Intelligence Surveillance Act (FISA) of 1978 to allow the Director of the FBI, or a designee of at least rank Assistant Special Agent in Charge, to apply for an order to produce materials to assist in an investigation undertaken to protect against terrorism or clandestine intelligence activities.
Section 215 also contains ex parte rights for law enforcement, as well as gag rules for public dissemination of the details of warrants given under Section 215. Or, put another way, the FBI doesn’t have to tell everyone they’ve asked for a warrant under Section 215, so those being investigated have time to stop whatever it is they’re going to raise the suspicions of law enforcement in the first place.
Section 215 taken alone is not a particularly daring violation of privacy, as some privacy advocates would lead you to believe. The dangerous bit was divulged in testimony by the deputy director of the NSA, Chris Inglis, in front of the House Judiciary Committee in the summer of 2013.
In that testimony, Inglis stated NSA analysts were looking “two or three hops” from suspected terrorists. If there’s a troubling bit of the “library provision”, it is in the NSA’s application of multiple hops when investigating a terror suspect. For example, if a person is suspected of plotting to attack the United States, the NSA would be monitoring phone and internet traffic from:
- The suspected terrorist and everyone he/she has contact with.
- Everyone who has contact with the suspect and everyone they have contact with.
- Everyone who has contact with everyone who has contact with the terror suspect, and everyone they have contact with.
Anyone with experience playing The Six Degrees of Kevin Bacon can see how quickly a routine investigation against a single person can spiral to include innocent American citizens in a web of illegal surveillance without the possibility of due process.
So I applaud the Court of Appeals for ruling the current incarnation of data collection illegal. If the intent of the U.S. Government is to continue investigating and collecting data in this way, then I want an explicit mandate from congress, singed into law by the President, and reviewed by the Supreme Court. To have a program like this follow the rigors the process of lawmaking demands serves the people the process is meant to protect and the people making the program legal in the first place.
By the time this commentary is published, the June 1st deadline for reforming or reauthorizing the Patriot Act will have come and gone. Smart money says an emergency Senate session on Sunday night will come up short for passing reforms on the Patriot Act, called the USA Freedom Act. In what’s going to be an unpopular opinion in Internet circles, I think failing to reauthorize the Patriot Act in one form or another is a mistake. Here’s why.
American Agencies Don’t Care About You … Probably
Given the “three hops” collection paradigm Inglis testified about, chances are the average citizen in the U.S. has been bulk collected on at some point since 2006. The nature of the world we live in in the 21st century is to be connected to each other — the world is smaller than it has ever been. Chances are someone you know “knows someone who knows someone who knows someone” who is fundamentally unhappy with the Western world with such intensity they might feel the need to blow something up to express their anger or disenfranchisement.
That fact alone means you’ve more likely than been the subject of surveillance at some point in the last 15 years. In hindsight, did that fact change the way you lived your life? My guess is most likely not. If Section 215 were to expire this week, would you change the way you live your life going forward? My guess is most likely not.
Further, you’re aware from 1978 until now, you were only a board of 11 judges away from having an open-ended surveillance operation conducted against you, right?
If you didn’t know that, you’re welcome. If you did know that, the same questions in the previous 2 paragraphs apply.
The next question is, “So what?” So the NSA has collected data and metadata about your international correspondence? Do those collections matter? I don’t think they do. Simply put, even in an environment where Section 215 made NSA bulk collection legal, the federal government of the United States was not using data collected by the NSA to investigate and incarcerate ordinary citizens for statutory violations of American law. Or, put another way, people don’t get “cuffed and stuffed” every time they swear to their friends they aren’t going to pay their taxes, admit to having improper thoughts about their 6 year old cousins, make public statements about “ending” a public event the same night a bomb threat is called in against that public event, or making public statements about doing “drivebys” on people.
John and Jane Q. Public can continue to speed every day on their commute to work, continue to exercise their free speech about how much they hate the grind every day or how little value they are getting for their tax dollar, park one foot away from the curb, shovel snow in the middle of the street, solicit prostitutes and smoke pot without law enforcement combing through the Publics’ phone records to determine probable cause. Law enforcement is still doing things the old fashioned way: earning their arrests.
The “Dystopian Future” Scenario
Some will argue a bulk surveillance program cannot be allowed to exist on the basis that any data collection or surveillance program initiated today can be expanded tomorrow. Agencies created for the purposes of “keeping the public safe” today might be turned into Big Brother a la 1984 tomorrow, when civilian oversight isn’t looking.
I won’t say the fear is unreasonable, because depending on the wording of new legislation authorizing surveillance, there is always going to be the potential for abuse. (I assume I don’t have to expend the effort to explain to everyone why, in a world where 2 billion people want to kill you based solely on where you woke up this morning, surveillance programs are not only necessary, but are required for the long term safety of the Western world.)
However, I believe fears about systemic abuses of power are misplaced. The Section 215 ruling at the top of the article shows the system working. No, the fear in my mind comes from single actors committing colossal abuses of power for political or ideological gains.
Picture a member of the United States congress — a gender ideologue working with fundamentally dishonest people, and a gender ideologue whose grasp of technology, the Internet, and online cultures is, at best, dubious. Picture that ideologue exerting pressure on the FBI to get an “ally” into the bureau, and promoted up the chain to be at least rank Special Agent in Charge.
The newly promoted “ally” starts an unauthorized investigation of, for the sake of argument, a consumer advocacy Twitter hash tag with the goal of exerting pressure on the most public figures of that hash tag to drive them out of the movement. Eventually, all the public figures commit some sort of offense of criminal code somewhere in the U.S., and because they’re being monitored, those figures are systematically removed from the conversation. Without any resistance, the opponents of the consumer advocacy Twitter hash tag claim “victory” and proceed to destroy the industry the consumer advocates were trying to save.
Massively farfetched and paranoid, don’t you think? So is the fear of a U.S. three-letter-agency surveillance program suddenly becoming the instrument preventing free exchange of ideas on the Internet or in the public square.
The Bottom Line
Politics aside, the bottom line is there’s a need for the U.S. to have a surveillance program with the goal of keeping citizens of America and its allies safe globally. The implementation of the surveillance program can and should be a source for debate among informed parties. However, claiming a surveillance program is automatically a violation of civil liberties is “crying wolf” to some degree. A properly vetted program can help keep people safe while protecting the liberties Americans have enjoyed.
I’m all for the U.S. having a surveillance program, I just hope civilian oversight doesn’t turn the program into something ineffective.