Feinstein Releases Fake NSA Reform Bill, Actually Tries To Legalize Illegal NSA Bulk Data Collection

from the don't-buy-the-lies dept

Despite Dianne Feinstein's supposed "conversion" earlier this week about the NSA being out of control with its spying, and the associated performance of NSA folks claiming that they were screwed, it's quickly become apparent that this was all pure theater to make people think that real reform might be coming. Feinstein claimed she was shocked about this and called for a full investigation... and yet, just two days later, she held a markup of her planned "reform" bill for the collection of intelligence by the NSA (and held the markup in secret -- because nothing says "let's increase transparency of the NSA" like keeping the debates and votes secret). That bill was moved out of committee today by a vote of 11 to 4, leading Feinstein to release the bill with a bunch of misleading claptrap designed to make people think it's real reform. It even confused some folks who know this stuff into thinking, after a quick first pass, that it "banned" the bulk data collection. And you might think that's the case because her description says:
  • Prohibits the collection of bulk communication records under Section 215 of the USA PATRIOT Act except under specific procedures and restrictions set forth in the bill;
  • Establishes criminal penalties of up to 10 years in prison for intentional unauthorized access to data acquired under the Foreign Intelligence Surveillance Act (FISA) by the United States;
  • Prohibits the bulk collection of the content of communications under Section 215 of the USA PATRIOT Act;
Reading that, you might think it actually banned the bulk data collection that's been reported on, but it does not. That "except under specific procedures and restrictions set forth in the bill" just takes the highly questionable reasoning of the FISA Court in approving the bulk data collection and makes that the "exception." In other words, it does exactly the opposite of what Feinstein claims. Rather than banning bulk data collection, it legalizes it. That third point on the "content" is just a red herring -- the same red herring that Feinstein and others have been waving about wildly for months, pretending people are upset about the collection of actual recordings, rather than the collection of metadata. She's wrong. People are upset about the collection of metadata, which this legalizes.

Even more ridiculous, the focus (both in the marketing and the bill itself) on collection of content "under Section 215" is another red herring, since it appears that much of that collection actually happens under other programs anyway. So this doesn't change a damn thing.

Other supposed "changes" in the bill -- including limiting who can perform queries on the data, how many "hops" they can analyze and how long they can retain the data, all match with current practice and don't change a thing. Even though James Clapper and Keith Alexander more or less seemed to concede at yesterday's House hearing that they'd be okay with cutting back on the data retention from five to three years, this bill keeps it at five. There are a few other minor changes, but this bill is almost entirely as expected, simply codifying the status quo, even though Feinstein has insisted that it was legal all along. The one minor "concession" which many had expected -- having a third party at the FISA Court who could fight for civil liberties -- is watered down. Rather than an actual adversarial setup, with this person representing civil liberties, it's set up as an appointed "amicus cureia" or "friend of the court," where they basically just advise the court on the issue.

This bill is a farce, and made even more farcical by the misleading way in which Feinstein has presented it, pretending it bans bulk data collection when it actually legalizes it.

Filed Under: bulk data collection, dianne feinstein, fisa, fisa court, fisa improvements act, fisc, lies, nsa, nsa surveillance, section 215

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  1. identicon
    Anonymous Coward, 31 Oct 2013 @ 1:52pm


    It seems so much like a theater between Feinstein and the NSA. If it is, we will see NSA starting to shoot at the bill and calling it terrible. Feinstein will use that fake outrage to sell the bill as a far more moderate "compromise" than "the other extremely dangerous bills" getting thrown around and hope that the rest of the congress fall for it.

    In reality the bill seems to be exactly what Mike claims here: A further extention of NSAs powers under a guise of strenghtening overview and weakening the most problematic parts of NSAs authorisation. In reality the law has become so complex that nobody understands it. How it is used is only for NSA to know and it is getting retold through several pieces of "command" before it reach a politicians ear. By that time, everyone relies on the papers from the immediate level below and with the caution on not being too specific towards FISA, it doesn't take much of a leap to assume the same covers every aspect of the information chain. The greatest problems are the bad politicians in the committees and their lacking ability or willingness to strenghten communication through other channels and their acceptance of the extreme complexity obscurring reality!

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