The business records provision of the Patriot Act, known as Section 215, is scheduled to expire on June 1st. It’s the legal basis for the NSA’s collection of telephone metadata inside American borders. A few days ago the House Judiciary Committee proudly announced that it had approved a bill, (HR 2048/S.1123) the USA Freedom Act of 2015, which alters the provisions of Section 215. The Judiciary Committee claims that their proposed legislation “ends bulk collection.” At best this is a mischaracterization that flagrantly ignores additional surveillance laws.
According to language of the bill the revisions defined by the USA Freedom Act would narrow business record collection by restricting the “selection term” used to request call records to “an individual, account, or personal device.” In other words instead of requesting call record metadata from “everyone in the state of Ohio” government spies would be forced to explicitly limit the terms of their request to something like “John Q. Smith’s cellphone”. Though your author wonders if an Internet backbone router counts as a personal device.
The case for curbing phone record collection is fairly strong. Section 215 of the Patriot Act was ostensibly instituted in an effort to combat terrorism. Yet there’s very little evidence to suggest that vacuuming up telephone meta-data is useful as a way to prevent terrorism. In fact, Ed Snowden states for the record that it has more to do with imposing “social control.”
Hardly a Major Change
Even if phone record collection under Section 215 were to be completely eliminated it wouldn’t spell an end to “bulk collection.” No sir. What you’re witnessing is deft political sleight of hand. Instead lawmakers are probably betting that most people don’t realize that bulk collection would persist under the auspices of Section 702 of the FISA Amendments Act of 2008 and Executive Order 12333. This explains why one senior American spy described the USA Freedom Act of 2015 as “hardly major change.”
Let’s take a look at both of these legal mandates. Section 702 covers data that crosses the border. It allows the government to monitor communications (email, text messages, and phone calls) to acquire “foreign intelligence” on a non-citizen without a probable-cause warrant if that non-citizen is “reasonably believed to be located outside the United States.”
Executive Order 12333 is the big kahuna. Naturally it receives the least attention as spy chiefs in Washington quietly signal to lawmakers that they stay the hell away. EO 12333 covers surveillance in other countries, essentially granting free rein to government spies. No one, including American citizens, has any legal protections from EO 12333 outside of U.S. borders.
This underscores the importance of privacy as a basic human right. Consider, for a moment, how American citizens would respond if there was an autonomous foreign power capable of monitoring their every move with abandon?
Ever More Political Theater
Politicians will dither around the edges by tweaking peripheral rules like Section 215 so that they can brag to the public that they took action against mass surveillance. They’ll confidently assure us that minor adjustments are “a step in the right direction” and that more serious reform can be implemented in the future.
Never mind that in the future political representatives will subsequently resist additional measures claiming that they’ve already “been there, done that” with regard to mass surveillance. The promise of substantial reform will go out of fashion as media headlines shift to fresh issues. And in the meantime American spies will simply relocate domestic monitoring programs abroad to sidestep pesky legal constraints.
The unfortunate reality is that lawmakers won’t institute measures that impact the physical infrastructure that constitutes the global panopticon. Because that, dear reader, is what really counts. As long as the raw mechanisms of control remain in place the policy for wielding it can be [secretly] reinterpreted as needed [in classified memos] to accommodate whatever alleged emergencies might arise. Real change will require mass political upheaval that puts government back under popular control and that won’t happen until the voting public arises from its propaganda-fueled slumber.
Bill Blunden is a journalist whose current areas of inquiry include information security, anti-forensics, and institutional analysis. He is the author of several books, including “The Rootkit Arsenal” and“Behold a Pale Farce: Cyberwar, Threat Inflation, and the Malware-Industrial Complex.” Bill is the lead investigator at Below Gotham Labs.