NSA Oversight Bill Introduced By Sen. Leahy May Severely Damage The Ability To Challenge National Security Letters

from the moving-forward-and-backward,-but-ultimately-staying-in-the-same-place dept

The NSA argues that it has plenty of oversight, an argument no one's buying. Because much of the "oversight" is takes the form of secret courts enforcing secret interpretations of existing laws, it's hard to accept the NSA's claims at face value. Sen. Patrick Leahy, someone with a rather spotty record on privacy, is aiming to add more oversight with a new bill. While this would be a good idea, it's undercut by the damage it does to those seeking to challenge the government's overreach.

Legislation introduced last month by Patrick Leahy, chairman of the Senate Judiciary committee, alters the ground rules that currently permit U.S. companies to object to a secretive intelligence-gathering technique, called a national security letter, used by the federal government to obtain both individual and bulk customer records.

Part of Leahy's proposal prevents companies from directly challenging the legality of NSL requests in their local courts, meaning they need to rely on the Justice Department to initiate litigation in a jurisdiction of its own choosing -- a dramatic change that raises the cost of a legal challenge and reduces the odds of it succeeding.
Allowing the Justice Department to venue shop is a bad idea, as is relying on the department to initiate challenges to national security letters. This shifts the power back to the government, which would be given the leeway to decide where, when and if it wants to allow an NSL challenge to proceed.
Under the legislation, "the provider has to go to the government to object -- and then the government picks the court in the jurisdiction most favorable to them," said a representative of a U.S. company that's concerned about the negative impact of Leahy's bill if it becomes law. "It's astonishing that anyone would propose to remove the right of a provider to challenge directly, in their home district, an NSL that they view as unlawful."
The bill (FISA Accountability and Privacy Protection Act) isn't all bad. It does offer a few nudges in the direction of privacy and accountability, like accelerated sunset dates on data requests and increased public availability of surveillance stats.

Leahy's bill also provides for speedier challenges of NSL gag orders, but that doesn't mean much when the challenges are funneled into a Justice Department bottleneck that feeds into a selection of compliant courts. On the plus side, this bill can still be fixed, and rather easily, according to Alex Abdo of the ACLU's National Security Project.
I can see how it might allow the government to forum shop by simply conducting its national security investigations in a favorable district. I doubt that was the intent of it, but I agree that there at least two easy fixes: eliminating the second jurisdictional hook or making clear that recipients can themselves initiate the review.
Putting the right to challenge the government in the government's hands is seldom beneficial to those raising the challenges. Whether this language will be altered remains to be seen. Leahy co-sponsored a bill aimed at killing the secret law that enables the NSA's surveillance efforts, but also has a few privacy-related legislation skeletons in his closet, including CALEA, the Protect-IP Act and "significant portions" of the PATRIOT Act. This track record doesn't exactly bode well for companies and citizens challenging the government.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Jul 10th, 2013 @ 12:44pm

    Has Senator Leahy lost his mind? That's like passing a law preventing someone from defending themselves at trial. Hate to say it but we're going to find our country embroiled in a new civil war because the way things are going in Washington, the United States Constitution is under attack.

    Looks like our country is about to go to hell in a handbasket and it's going to happen under President Obama's watch. lols

     

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  2.  
    identicon
    Anonymous Coward, Jul 10th, 2013 @ 12:50pm

    Oh look!

     

    reply to this | link to this | view in thread ]

  3.  
    identicon
    Anonymous Coward, Jul 10th, 2013 @ 12:59pm

    The FISA Accountability and Privacy Protection Act.

    The FAPP Act.

    Funny interns, or clueless Senators?

     

    reply to this | link to this | view in thread ]

  4.  
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    Anonymous Coward, Jul 10th, 2013 @ 12:59pm

    Re:

    There will be no civil war. There will be high fructose corn syrup and "Here Comes Honey Boo Boo."

     

    reply to this | link to this | view in thread ]

  5.  
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    Anonymous Coward, Jul 10th, 2013 @ 1:01pm

    Co-sponsor list looks promising

    Co-sponsors include Wyden, Udall and Lee. They should be able to get this fixed.

     

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  6.  
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    out_of_the_blue, Jul 10th, 2013 @ 1:01pm

    99% of the battle lost when National Security Letters exist.

    Why worry about this tweaking? It's just further routinizing of corrupt gov't practice. Even complaining about it is staying inside the box.

    "Putting the right to challenge the government in the government's hands is seldom beneficial to those raising the challenges." -- SELDOM? No, it's NEVER! You evidently COMPLETELY misunderstand the nature of gov't, still believe that it's even capable of doing good. But gov't is always a monster, and the only way that ever works to control its inherent evil is to direct its force against other inherent evils, mainly The Rich.

     

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  7.  
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    Anonymous Coward, Jul 10th, 2013 @ 1:11pm

    Well on the bright side if I ever get stranded and get amnesia the NSA could remind me who I am.
    Though if they told me they'd have to kill me for national security reasons of course.

     

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  8.  
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    Uriel-238 (profile), Jul 10th, 2013 @ 1:24pm

    Is it me? Or...

    Is National Security simply a buzzword by which we create an alternative justice system that bypasses human rights?

    Do we somewhere have a set of standards as to what sort of circumstances constitute a matter of national security in contrast to one that isn't?

    Someone, please direct me to this standard.

     

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  9.  
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    John Fenderson (profile), Jul 10th, 2013 @ 1:26pm

    Re:

    To repurpose the old jokoe from National Lamppon's Deteriorata: "Know yourself. If you need help, call the NSA."

     

    reply to this | link to this | view in thread ]

  10.  
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    Gwiz (profile), Jul 10th, 2013 @ 1:30pm

    Re: 99% of the battle lost when National Security Letters exist.

    But gov't is always a monster, and the only way that ever works to control its inherent evil is to direct its force against other inherent evils, mainly The Rich.


    So your solution is to tax the crap out of the rich and give the government MORE money and power? How exactly does that reduce the government's "inherent evil" in any way?

    Seems to me that it would only shift some power from individuals to the bureaucracy. I'm not sure that would be any better in the long run.

     

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  11.  
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    Anonymous Coward, Jul 10th, 2013 @ 1:31pm

    Re:

    Perhaps this is intentional.

    /tinfoilhat

     

    reply to this | link to this | view in thread ]

  12.  
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    Uriel-238 (profile), Jul 10th, 2013 @ 1:33pm

    What's that metal thing the uruks are dragging to the wall?

     

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  13.  
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    Rekrul, Jul 10th, 2013 @ 2:58pm

    I thought NSLs had been ruled illegal and the government barred from using them...

     

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  14.  
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    Anonymous Coward, Jul 10th, 2013 @ 3:07pm

    I hope this passes!

     

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  15.  
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    That One Guy (profile), Jul 10th, 2013 @ 3:18pm

    Re:

    You forget, rulings like that only matter if the government agency affected feels like following it, because if they ignore it, all it means is another ruling they can just ignore, and so on.

     

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  16.  
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    Loki, Jul 10th, 2013 @ 3:43pm

    Re:

    Apparently "fix" is among the growing list of words the federal government has different definitions for.

    I'd like to see their dictionary, but that is probably a "State Secret" too.

     

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  17.  
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    AC, Jul 10th, 2013 @ 5:00pm

    Re: Has Senator Leahy lost his mind?

    That's next. It's called the Fairness At Trial Act. It makes trials secret, the juries are comprised of three people appointed by the prosecutor, you don't get a lawyer, and you can't offer a defense, or address the court during your trial.


    It was translated from the 1932 German text.

     

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  18. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Jul 10th, 2013 @ 6:59pm

    stop running away, mike!

     

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  19.  
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    btrussell (profile), Jul 11th, 2013 @ 2:17am

    Re:

    Just a bunch of jerk-offs.

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Pragmatic, Jul 11th, 2013 @ 6:09am

    Re: Re: 99% of the battle lost when National Security Letters exist.

    Besides, "the Rich" own the govt. so how is that even going to work? Taxing the crap out of them isn't the answer.

    Taking their power away by reinstating the Constitution is.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Jul 12th, 2013 @ 7:28pm

    Re: Re: Has Senator Leahy lost his mind?

    Why did you pick 1932?

     

    reply to this | link to this | view in thread ]


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