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?

Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Violynne (profile), Apr 1st, 2014 @ 8:25am

    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.

     

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    •  
      identicon
      Joe, Apr 1st, 2014 @ 1:47pm

      Re:

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

      Nice attitude there! Are you an NSA agent?

       

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

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    Ninja (profile), Apr 1st, 2014 @ 8:31am

    Easter eggs are usually linked to good stuff. You know, Easter, chocolate, fun colorful things. I think we should use a brand new term for such bad twists hidden into legislation. I propose "Mike Roger's Cans of Turd" (tm).

     

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    identicon
    Anonymous Coward, Apr 1st, 2014 @ 9:14am

    Typical Political BS

    Claim to be solving a problem while knowingly making it worse.

    The American people buy it every time too.

     

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

    •  
      identicon
      Anonymous Anonymous Coward, Apr 1st, 2014 @ 9:32am

      Re: Typical Political BS

      "The American people buy it every time too."

      The American Congress buy it very time. We, the people, cannot afford a congresscritter.

       

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

      •  
        identicon
        David, Apr 1st, 2014 @ 10:12am

        Re: Re: Typical Political BS

        No, the entertainment-military complex buys congress every time. Congress does not buy stuff. They line their pockets with lobbyist money in return for lining the industry pockets with taxpayers' money. Their pockets are one-way.

         

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

        •  
          identicon
          Anonymous Coward, Apr 1st, 2014 @ 10:35am

          Re: Re: Re: Typical Political BS

          Well, you are both essentially correct, mine(OP) and his are more of a metaphor while yours is more literal.

           

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  •  
    identicon
    Anonymous Coward, Apr 1st, 2014 @ 9:18am

    We're not buying it

    And to think Mr Rogers is contemplating a 2016 presidential bid

     

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    •  
      identicon
      Anonymous Anonymous Coward, Apr 1st, 2014 @ 9:27am

      Re: We're not buying it

      He can run, but he cannot hide.

       

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

      •  
        identicon
        Anonymous Coward, Apr 1st, 2014 @ 10:41am

        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!

         

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

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    Eric Goebelbecker (profile), Apr 1st, 2014 @ 9:23am

    Unsurprising

    It's almost like he wants to leave some breadcrumbs behind for his inevitable consulting gig after he leaves office.

     

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

  •  
    identicon
    Just Another Anonymous Troll, Apr 1st, 2014 @ 9:34am

    Specific identifier: sentient life-form. Now they can spy on everyone and their mom and it's all 100% legal.

     

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    identicon
    Anonymous Coward, Apr 1st, 2014 @ 9:49am

    He even misrepresents his own legislation!

     

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    identicon
    Anonymous Coward, Apr 1st, 2014 @ 10:06am

    This is legislation from the same asshole who tried to get CISPA passed how many times now?

    Nothing he has his name on should be allowed to be voted on without someone going though everything with a fine toothed comb.

     

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

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    FarSide (profile), Apr 1st, 2014 @ 10:20am

    Did anyone really expect anything different from the NSA's two biggest defenders in the House?


    No. I don't think anyone with half a brain ever thought that.

    In fact, I would expect anyone with a third of a brain to outright reject any legislation with those names on it that has anything to do with this issue.

    If they are for it, be against it

     

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

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    identicon
    Anonymous Coward, Apr 1st, 2014 @ 10:54am

    Given the names on the proposed bill this is no surprise. If they are for it, it's a turd in a bag. Set it on fire and be done with it before it gets out of that bag.

    If they are for it, then the default is to be against it.

     

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

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    identicon
    Anonymous Coward, Apr 1st, 2014 @ 11:11am

    I am shocked, shocked, to find gambling going on here!

     

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    identicon
    vastrightwing, Apr 1st, 2014 @ 11:56am

    Makes the old mob seem rather nice

    When I continue to read these stories, I can't help but feel nostalgic for the old days of the so called Mob. In retrospect, they seem so much easier to deal with and much more accommodating than the bureaucrats we have now. They wanted to steal less of our money too. Can we go back in time?

     

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      identicon
      Just Another Anonymous Troll, Apr 1st, 2014 @ 12:08pm

      Re: Makes the old mob seem rather nice

      There's something wrong with our government if people prefer the mob to it...

       

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

  •  
    identicon
    Anonymous Coward, Apr 1st, 2014 @ 12:36pm

    'Dangerous Loopholes That Will Expand Surveillance'

    of course there will be. they will be used and they were included intentionally. he is still the same guy who wants to carry on spying on everyone. i wonder what would be found out if the spying were to be done on him?? worth a thought or even a try??

     

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