While congress ponders the merits of the USA Freedom Act of 2015, a bill which revises the business records provisions of the Patriot Act, a panel of judges in a federal appeals court has just thrown a clump of sand into the gears of the global panopticon. Overturning an earlier ruling, where federal judges dismissed a lawsuit filed by the ACLU, the United States Court of Appeals for the Second Circuit has ruled that the NSA’s bulk collection of telephone metadata is illegal.
The Good News
In their ruling the judges focused heavily on the scope of the NSA’s phone record collection program. Specifically, the written judgement describes the government’s own justification for hoovering up all of our telephone metadata (page 67):
“The government effectively argues that there is only one enormous ‘anti‐terrorism’ investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.”
The ruling responds to this argument by noting that (page 75):
“To allow the government to collect phone records only because they may become relevant to a possible authorized investigation in the future fails even the permissive ‘relevance’ test.”
Skipping to the end, the punchline (page 82):
“We hold that the text of § 215 cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program.”
In other words, the judges view Section 215 of the Patriot Act as applying to narrow inquiries that target specific people. According to the court, the bulk phone record collection currently being conducted by the government is, well, criminal.
Unfortunately the ruling wasn’t supplemented by a formal order to cease and desist. This case will henceforth go back to a judge in the Federal District Court. Then who knows what will happen. While the wheels of justice are turning lawmakers might beat the courts to the punch by revising Section 215 rules. Though it’d be nice if they’d just let the business records provisions quietly expire.
The Bad News
All of this political drama neglects a reality which has been pointed out by an earlier CounterPunch essay. The majority of the NSA’s mass interception is sanctioned by other laws. To be precise Section 702 of the FISA Amendments Act of 2008 and Executive Order 12333. It’s likely that congress is fixated on Section 215 because politicians view it as an “easy win” that both panders to voters and winks at spies. Flanked by a blitz of press coverage lawmakers can brag to voters about fighting Big Brother without really altering the surveillance apparatus itself.
Keep in mind that approximately 90% of the Internet’s traffic passes through networks in the United States. If the collection of phone records in bulk is outlawed domestically it’s conceivable that spies will simply divert network traffic outside the United States and then move their access points just outside the border. In this domain EO 12333 opens the floodgates and spies can pretty much do as they wish. Or, American spies may simply opt to have their brethren in the GCHQ bulk collect America phone records and arrange to swap data.
The Government Surrenders Authority
Is it all pointless? There are those who assert that governments will never yield control. For example in late 2014 Glenn Greenwald of the Intercept stated:
“The last place one should look to impose limits on the powers of the U.S. government is . . . the U.S. government. Governments don’t walk around trying to figure out how to limit their own power, and that’s particularly true of empires.”
But governments cede authority all the time. Don’t they? The catch is who benefits. Cui bono? The financial deregulation of the Clinton era is a case in point. Not only did bankers repeal Glass-Steagall (i.e. the Gramm–Leach–Bliley Act of 1999) but they also passed the Commodity Futures Modernization Act of 2000 to undermine any vestige of government control in the over-the-counter derivatives market. Is it any surprise that Wall Street loves Hillary?
Though politicians will busy themselves with cosmetic reform it’s mostly noise for rubes. Nothing short of a political uprising will force politicians to dismantle the panopticon. It’s an incredible tool for their constituents. And I’m not talking about voters. I’m referring to the billionaire donors of the American Deep State.
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.