What Fresh Hell Is This?

June 13, 2013

And For All This, We Thank The Patriot Act

Let's start here:
Two United States senators on Wednesday accused the Justice Department of making misleading statements about the legal justification of secret domestic surveillance activities that the government is apparently carrying out under the Patriot Act.

The lawmakers — Ron Wyden of Oregon and Mark Udall of Colorado, both of whom are Democrats on the Senate Intelligence Committee — sent a letter to Attorney General Eric H. Holder Jr. calling for him to “correct the public record” and to ensure that future department statements about the authority the government believes is conveyed by the surveillance law would not be misleading.
And:
The Justice Department denied being misleading about the Patriot Act, saying it has acknowledged that a secret, sensitive intelligence program is based on the law and that its statements about the matter have been accurate.

Mr. Wyden and Mr. Udall have for months been raising concerns that the government has secretly interpreted a part of the Patriot Act in a way that they portray as twisted, allowing the Federal Bureau of Investigation to conduct some kind of unspecified domestic surveillance that they say does not dovetail with a plain reading of the statute.

The dispute has focused on Section 215 of the Patriot Act. It allows a secret national security court to issue an order allowing the F.B.I. to obtain “any tangible things” in connection with a national security investigation. It is sometimes referred to as the “business records” section because public discussion around it has centered on using it to obtain customer information like hotel or credit card records.
By the way, this is from 2011.

So what's this Section 215?  For this we turn to slate.com.  They start with Section 103(a) of the Foreign Intelligence Surveillance Act of 1978:
The Chief Justice of the United States shall publicly designate seven district court judges from seven of the United States judicial circuits who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this Act, except that no judge designated under this subsection shall hear the same application for electronic surveillance under this Act which has been denied previously by another judge designated under this subsection. [Emphasis from Slate.]
And then they point out that the Patriot Act:
Section 215 modifies the rules on records searches. Post-Patriot Act, third-party holders of your financial, library, travel, video rental, phone, medical, church, synagogue, and mosque records can be searched without your knowledge or consent, providing the government says it's trying to protect against terrorism.
And:
As Section 215 stands today—in the reauthorized version of the Patriot Act passed in 2005—"tangible things" (aka user data) sought in a FISA order "must be 'relevant' to an authorized preliminary or full investigation to obtain foreign intelligence information not concerning a U.S. person or to protect against international terrorism or clandestine intelligence activities."
It's about those "tangible things" and how they can get got.  Here's the relevant passage from the Patriot Act:
The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.
Where am I going with all this?

First here, to this DemocracyNow! interview where Amy Goodman is interviewing William Binney on NSA Surveillance:
Well, after some of the laws they passed, like the PATRIOT Act and their secret interpretation of Section 215, which is—my view, of course, is same as Tom Drake’s, is that that gives them license to take all the commercially held data about us, which is exceedingly dangerous, because if you take that and put it into forms of graphing, which is building relationships or social networks for everybody, and then you watch it over time, you can build up knowledge about everyone in the country.
And then finally here where Binney gives up more info:
I began by asking Binney if Business Insider’s speculation was correct. Specifically, I asked Binney if the government’s secret interpretation of Section 215 of the Patriot Act was that a foreign company – like Narus, for example – could vacuum up information on Americans, and then the NSA would obtain that data under the excuse of spying on foreign entities … i.e. an Israeli company.

Binney replied no … it was broader than that. [Emphasis in original.]
And then finally:
I followed up to make sure I understood what Binney was saying, asking whether the government’s secret interpretation of Section 215 of the Patriot Act was that the government could use any information as long as it came from a private company … foreign or domestic. In other words, the government is using the antiquated, bogus legal argument that it was not using its governmental powers (called “acting under color of law” by judges), but that it was private companies just doing their thing (which the government happened to order all of the private companies to collect and fork over).

Binney confirmed that this was correct. This is what the phone company spying program and the Prism program – the government spying on big Internet companies – is based upon. Since all digital communications go through private company networks, websites or other systems, the government just demands that all of the companies turn them over.
Ain't the Patriot Act grand?  Ain't government secrecy grand?  It's allowing all this to happen!

Gotta go, there's a knock on my

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