Wheat and Chaff

One use of the word chaff is thin strips of foil used to confuse radar.

The House’s NSA bill could allow more spying than ever. You call this reform?

Trevor Timm, The Guardian

Tuesday 25 March 2014 09.07 EDT

The House proposal, to be unveiled this morning by Reps Mike Rogers and Dutch Ruppersberger, is the more worrying of the two. Rogers has been the NSA’s most ardent defender in Congress and has a long history of distorting the truth and practicing in outright fabrication, whether in touting his committee’s alleged “oversight” or by way of his attempts to impugn the motives of the once again vindicated whistleblower who started this whole reform debate, former NSA contractor Edward Snowden.

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His new bill seems to have the goal of trading government bulk collection for even more NSA power to search Americans’ data while it sits in the hands of the phone companies.

While the full draft of the bill isn’t yet public, the Guardian has seen a copy, and its description does not inspire confidence. Under the Rogers and Ruppersberger proposal, slyly named the “End Bulk Collection Act”, the telephone companies would hold on to phone data. But the government could search data from those companies based on “reasonable articulable suspicion” that someone is an agent of a foreign power, associated with an agent of a foreign power, or “in contact with, or known to, a suspected agent of a foreign power”. The NSA’s current phone records program is restricted to a reasonable articulable suspicion of terrorism.

A judge would reportedly not have to approve the collection beforehand, and the language suggests the government could obtain the phone records on citizens at least two “hops” away from the suspect, meaning if you talked to someone who talked to a suspect, your records could be searched by the NSA. Coupled with the expanded “foreign power” language, this kind of law coming out of Congress could, arguably, allow the NSA to analyze more data of innocent Americans than it could before.

President Obama’s reported proposal sounds more promising, though we have even fewer details than the Intelligence Committee proposal. The administration’s plan would supposedly end the collection of phone records by the NSA, without requiring a dangerous new data retention mandate for the phone companies, while restricting analysis to the current rules around terrorism and, importantly, still requiring a judge to sign off on each phone-record search made to the phone companies – under what the New York Times described as “a new kind of court order”.

This phone plan, apparently, represents Obama coming full-circle as his self-imposed deadline on NSA reform arrives Friday, when the court order authorizing bulk collection runs out. But there’s no indication that the president’s plan would stop other types of bulk collection – such as internet or financial records – and there’s still a big question about what the NSA could do with the data they receive on innocent people two “hops” away from a suspect.

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Rep James Sensenbrenner’s bill, the USA Freedom Act, would make a much stronger and more comprehensive bill than either new proposal – at least for those interested in real NSA reform. Sensenbrenner, who originally wrote the Patriot Act provision that the NSA re-interpreted in secret, called the House Intelligence proposal “a convoluted bill that accepts the administration’s deliberate misinterpretations of the law”. Although, even his bill could be strengthened to ensure bulk collection of Americans’ records is no longer an option for the NSA, or any other government agency.

Obama to set out proposal to end NSA’s mass collection of phone data

Spencer Ackerman, The Guardian

Wednesday 26 March 2014 08.47 EDT

Under plans to be put forward by the Obama administration in the next few days, the National Security Agency would end the bulk collection of telephone records, and instead would need to seek a court order to search records held by the telephone companies.

A separate proposal, to be published on Tuesday by the leaders of the House intelligence committee, would not necessarily require a judge’s prior approval to access phone or email data.

Neither the White House nor the House intelligence committee proposal would require telecommunications firms to keep such records any longer than the current 18-month maximum, a significant shift away from the five years during which they are currently held by NSA.

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The bill, titled the End Bulk Collection Act of 2014 and currently circulating on Capitol Hill, would prevent the government from acquiring “records of any electronic communication without the use of specific identifiers or selection terms.”

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But the bill would allow the government to collect electronic communications records based on “reasonable articulable suspicion”, rather than probable cause or relevance to a terrorism investigation, from someone deemed to be an agent of a foreign power, associated with an agent of a foreign power, or “in contact with, or known to, a suspected agent of a foreign power.”

A draft of the bill acquired by the Guardian proposes the acquisition of such phone or email data for up to a year and would not necessarily require prior approval by a judge. Authorisation of the collection would come jointly from the US attorney general and director of national intelligence.

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The House intelligence committee proposal represents competition to a different bill introduced last fall by privacy advocates in the Senate and House judiciary committees known as the USA Freedom Act. That bill, which has 163 co-sponsors in both chambers, does not lower the legal standard for data collection on US persons, and would prohibit the NSA from searching for Americans’ identifying information in its foreign-oriented communications content databases, something the House intelligence bill would not.

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But in a sign of the continuing contentiousness on Capitol Hill over changes to NSA surveillance, James Sensenbrenner, a Wisconsin Republican and co-author of the USA Freedom Act, preemptively rejected the House intelligence committee proposal, calling it “a convoluted bill that accepts the administration’s deliberate misinterpretations of the law.

“It limits, but does not end, bulk collection. Provisions included in the draft fall well short of the safeguards in the USA Freedom Act and do not strike the proper balance between privacy and security,” Sensenbrenner said in a statement late on Monday.

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According to a New York Times report late on Monday, Obama will propose ending bulk phone data collection and replacing it with individualised orders for telecom firms to provide phone records up to two “hops” – or degrees of separation – from a phone number suspected of wrongdoing. The effort goes further towards the position favoured by privacy advocates than Obama proposed in January. Obama will request the Fisa court approve the current bulk collection program for a final 90-day renewal as he attempts to implement the new plan.

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“Until Congress passes new authorizing legislation, the president has directed his administration to renew the current program, as modified substantially by the president in his January speech.”

Obama is cancelling the NSA dragnet. So why did all three branches sign off?

Jameel Jaffer, American Civil Liberties Union, The Guardian

Tuesday 25 March 2014 10.09 EDT

To anyone who criticized the National Security Agency’s phone-records dragnet over the last nine months or so, the American intelligence community had this stock response: all three branches of government signed off on it.

The intelligence community was right, at least in a sense, but what it presented as a defense of the surveillance program was actually an indictment of our oversight system. What it presented as a defense of the program was actually a scandal.

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(I)f the administration is right that the dragnet was unnecessary, we should ask how all three branches of government got it so wrong.

The answer, in a word, is secrecy. When intelligence officials proposed the dragnet, there was no one on the other side to explain that the government’s goals could be achieved with less-intrusive means. There was no one there to mention that the law the government was invoking couldn’t lawfully be used to collect call-records. There was no one there to mention that the bulk collection of call records was unconstitutional.

Instead, there was an entirely one-sided system in which government attorneys presented the supposed interests of the intelligence community in the most expansive way possible, and the judges of a poorly resourced court tried unsuccessfully, and sometimes halfheartedly, to imagine what ordinary citizens might say in response. Over time, and perhaps without entirely meaning to, the court developed a wholly new body of law, a body of law animated not by democratic principles but by the values of the intelligence community – collect, analyze, conceal.

The intelligence committees that were meant to serve as a further check on unwarranted government surveillance failed just as profoundly.

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One can confidently predict that the administration’s proposal to end the NSA’s bulk collection of phone records will not go far enough. According to the Times report, the administration’s proposal will still have the NSA collecting records about people who are two steps removed from terrorism suspects, not just records about the terrorism suspects themselves. The administration doesn’t seem to be contemplating new limits on the agency’s authority to retain, analyze or disseminate the records it collects. And it isn’t proposing to end bulk collection of all records – just the bulk collection of phone records. And of course Congress must approve the proposal.

But, as David Cole has observed, this much can be said about the administration’s proposal already: the president is acknowledging that a surveillance program endorsed by all three branches of government, and in place for more than a decade, has not been able to survive public scrutiny. It’s an acknowledgement that the intelligence agencies, the surveillance court and the intelligence committees struck a balance behind closed doors that could not be defended in public.