Tuesday, December 01, 2015

Rubio bulks up

Senator Marco Rubio is of the opinion that passage of the USA Freedom Act, which ends certain warrantless government surveillance of your internet and phone records, is dangerously misguided:
There is not a single documented case of abuse of these programs which were put in place after 9/11 to keep Americans safe.
I disagree.

First, the Senator elides any consideration that the once secret program – in and of itself – is an abuse of the Constitution and of American citizens. Your opinion may vary, but this question is quite reasonably open to debate. Even defenders of the program don’t describe it as liberty-neutral, they say the loss of privacy is justified by enhanced security. On that basis, as we'll see below, the program is a failure.

He also seems to be equating "no abuse" with "Constitutional." If your position is "It hasn't been abused yet," I don't think you've quite thought the problem through. In any case, the definition of abuse does seem germane to the discussion. Senator Rubio has told us his definition. We'll look look at some others momentarily.

Second, since the government places gag orders on its “requests” for information, the claim that there is “no documented case,” is a Clinton-Truth and an insult to the rule of law. But, I repeat myself.

Senator Rubio may have neglected to finish his sentence and meant “not a single documented case the public needs to know about.” Or, maybe he meant there's more than one. You'd have to ask Bill and Mrs. Bill to translate. You may then pause to wonder how Mrs. Bill might use the collected data were she elected POTUS.

The FBI sent out over 400,000 National Security Letters between 2003 and 2011. NSLs are warrantless demands for information and simultaneously prohibit the recipient from publicly discussing the order. For example.

There’s a lot of secretly documented abuse going on, supported by secret judicial opinions from the Foreign Intelligence Surveillance Court.

The National Security Agency’s bulk collection of phone data was ruled illegal in May 2015 under the very legislation used to justify the program, and called “probably unconstitutional.” That’s documentation of general abuse under at least one definition of the word.

Unfortunately, that decision was not accompanied by an injunction to stop the bulk data collection. Even more unfortunately, a higher court reversed that ruling in August of 2015. That is why Congress had to act to eliminate the program.

Prior to those Court rulings the Privacy and Civil Liberties Oversight Board – set up to monitor the NSA, FBI et. el., – had found the government was abusing American’s civil rights and gaining essentially nothing. The PCLOB is an independent bipartisan agency within the executive branch established by the Implementing Recommendations of the 9/11 Commission Act of 2007. It issued a report on January 23, 2014.

Third, then, according to the people charged with oversight the bulk data collection is unauthorized overreach and without discernible benefit:

From pages 10 and 11 of the Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court:
There are four grounds upon which we find that the telephone records program fails to comply with Section 215. First, the telephone records acquired under the program have no connection to any specific FBI investigation at the time of their collection. Second, because the records are collected in bulk — potentially encompassing all telephone calling records across the nation — they cannot be regarded as “relevant” to any FBI investigation as required by the statute without redefining the word relevant in a manner that is circular, unlimited in scope, and out of step with the case law from analogous legal contexts involving the production of records. Third, the program operates by putting telephone companies under an obligation to furnish new calling records on a daily basis as they are generated (instead of turning over records already in their possession) — an approach lacking foundation in the statute and one that is inconsistent with FISA as a whole. Fourth, the statute permits only the FBI to obtain items for use in its investigations; it does not authorize the NSA to collect anything.

In addition, we conclude that the program violates the Electronic Communications Privacy Act. That statute prohibits telephone companies from sharing customer records with the government except in response to specific enumerated circumstances, which do not include Section 215 orders.

Finally, we do not agree that the program can be considered statutorily authorized because Congress twice delayed the expiration of Section 215 during the operation of the program without amending the statute. The “reenactment doctrine,” under which Congress is presumed to have adopted settled administrative or judicial interpretations of a statute, does not trump the plain meaning of a law, and cannot save an administrative or judicial interpretation that contradicts the statute itself. Moreover, the circumstances presented here differ in pivotal ways from any in which the reenactment doctrine has ever been applied, and applying the doctrine would undermine the public’s ability to know what the law is and hold their elected representatives accountable for their legislative choices...

The threat of terrorism faced today by the United States is real. The Section 215 telephone records program was intended as one tool to combat this threat — a tool that would help investigators piece together the networks of terrorist groups and the patterns of their communications with a speed and comprehensiveness not otherwise available. However, we conclude that the Section 215 program has shown minimal value in safeguarding the nation from terrorism. Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack. And we believe that in only one instance over the past seven years has the program arguably contributed to the identification of an unknown terrorism suspect. Even in that case, the suspect was not involved in planning a terrorist attack and there is reason to believe that the FBI may have discovered him without the contribution of the NSA’s program.

The Board’s review suggests that where the telephone records collected by the NSA under its Section 215 program have provided value, they have done so primarily in two ways: by offering additional leads regarding the contacts of terrorism suspects already known to investigators, and by demonstrating that foreign terrorist plots do not have a U.S. nexus. The former can help investigators confirm suspicions about the target of an inquiry or about persons in contact with that target. The latter can help the intelligence community focus its limited investigatory resources by avoiding false leads and channeling efforts where they are needed most. But with respect to the former, our review suggests that the Section 215 program offers little unique value but largely duplicates the FBI’s own information gathering efforts. And with respect to the latter, while the value of proper resource allocation in time-sensitive situations is not to be discounted, we question whether the American public should accept the government’s routine collection of all of its telephone records because it helps in cases where there is no threat to the United States.
Further reading for those of most political persuasions:

Electronic Freedom Foundation
The NSA’s Call Record Program, a 9/11 Hijacker, and the Failure of Bulk Collection

House Judiciary Committee
H.R. 2048, THE USA FREEDOM ACT

National Rifle Association
USA FREEDOM Act Becomes Law, Enhances Privacy for Law-Abiding Americans

Jonathan Mayer, a computer scientist + lawyer at Stanford
MetaPhone: The Sensitivity of Telephone Metadata

ACLU
ACLU V. NSA - CHALLENGE TO WARRANTLESS WIRETAPPING

Senator Rubio says Senator Cruz voted to 'weaken U.S. intelligence.’ I’d say Cruz voted to protect American liberty.

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