Mike Rogers' Plan To 'Stop' Bulk Collection Of Phone Records Riddled With Dangerous Loopholes That Will Expand Surveillance

from the but-of-course dept

Now that people have had a chance to go through the proposal by Reps. Mike Rogers and Dutch Ruppersberger to “stop” the bulk phone record collection under Section 215 of the Patriot Act, they’re finding more and more things to be concerned about. We had noted some potential easter eggs in there for law enforcement, but the deeper people look, the worse it gets. Trevor Timm notes that the bill is really a trojan horse to expand surveillance capabilities, while pretending to end them.

Curiously, a large majority of the House bill focuses on new ways for the government to collect data from “electronic communications service providers” – also known as the internet companies. Why is a bill that’s supposedly about ending bulk collection of phone-call data focused on more collection of data from internet companies?

From there, we turn to Julian Sanchez, who has given one of the most thorough explanations of what’s actually in the bill, noting that it fails to really end the bulk collection of phone records while also potentially massively expanding other surveillance capabilities.

First, the HPSCI bill’s seemingly broad prohibition on bulk collection turns out to be riddled with ambiguities and potential loopholes. The fuzzy definition of “specific identifiers” leaves the door open to collection that’s extremely broad even if not completely indiscriminate. Because the provision dealing with “call detail records” applies only to &sect:215 and the provision dealing with “electronic communications records” excludes telephony records, the law does not bar the bulk collection of telephony records under FISA provisions other than §215. The prohibition on non-specific acquisition of other communications “records” probably does not preclude bulk collection under the FISA pen register provision that was previously used for the NSA Internet metadata dragnet. And, of course, none of these prohibitions apply to National Security Letters. If the government wanted to keep collecting metadata in bulk, it would have plenty of ways to do so within the parameters of this statute given a modicum of creative lawyering—at least if the FISC were to continue being as accommodating as it has been in the past.

Second, something like the novel authority created here may well be necessary to enable fast and flexible acquisition of targeted records without dragnet collection. However, once we get down to details—and even leaving aside the question of ex-post versus ex-ante judicial approval—this authority is in some respects broader than either the current §215 telephony program, the president’s proposal, or the pre-Snowden understanding of the FISA business records authority. Critically, it eliminates the required link to a predicated investigation—which, in the case of U.S. persons, must be for counterterror or counterespionage purposes.

In other words, this appears to be a superficial attempt to end bulk collection “under this program,” while at the same time knocking down a bunch of barriers to much broader bulk collection under other authorities, with less oversight and fewer ways to push back against abuse. Did anyone really expect anything different from the NSA’s two biggest defenders in the House?

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Comments on “Mike Rogers' Plan To 'Stop' Bulk Collection Of Phone Records Riddled With Dangerous Loopholes That Will Expand Surveillance”

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22 Comments
Violynne (profile) says:

I’m still shocked people believe this new “law” (should it become one) will actually stop the NSA from collecting bulk data.

I don’t think they’re going to casually throw away a $3 billion building anytime soon.

Just get used to the government and Corporate America spying on everything you do.

They’ve been doing it for years.

Anonymous Coward says:

Re: Re: We're not buying it

Why should he hide? He has legions of stupid sheeple to vote for him if he runs?

Every election, no matter who wins… there will sheeple on the left and sheeple on the right following the idiot ramblings of a radio or talk show host that says… “Better this guy than the other, don’t you dare vote for the guy you actually believe in because the idiot with the party vote won’t make it if you stand with your own conscience.”

We have been doing this since forever and are getting nowhere and the definition of insanity is to keep doing the same thing you have always been doing while expecting different results!

Sometimes the only way you can teach the assholes on your side that you are sick of it, is to make sure they lose!

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