Back in my activist days, an insightful colleague once pointed out that: “The most dangerous moment of any movement for justice is when you seem to be succeeding.” His point was this: When your adversary is more powerful than you are, they are in a position to define what “success” means — and will probably do so at your cost.
For example, we were trying to get African and Asian city authorities to grant land titles to households living in “slums,” so they could invest in their homes without fear of eviction. Often, opportunistic politicians would announce a minor policy tweak with great fanfare, as if they had “granted” our wishes. Meanwhile, nothing really changed.
I found myself thinking of that last week during the hoopla surrounding the passing of the USA Freedom Act, which is supposed to have ended the bulk collection of our private telephone call data by the government’s spy agencies.
Plus Ça Change…
Your privacy is no safer from government abuse today than it was last week, before Congress passed the USA Freedom Act. As one civil liberties lawyer told me: “No one should mistake this bill for comprehensive reform. The bill leaves many of the government’s most intrusive surveillance powers untouched.”
You can’t let your guard down now, I’m afraid.
Under the National Security Agency’s “bulk metadata” program, which the USA Freedom Act has modified, the NSA collected information on all Americans’ calls — including phone numbers called as well as dates, times and duration — without a warrant. The NSA argued that the data was “relevant” to a national security investigation under Section 215 of the USA Patriot Act because terrorists sometimes used telephones. Because the NSA didn’t know which calls were from terrorists, all phone calls were considered “relevant.”
The USA Freedom Act requires government to obtain a warrant before accessing call data in the hands of private companies. Custody of the metadata itself will transition from the NSA to the phone companies. The government will still be able to access it via specific queries of “a person, entity, account, address or device.” Most records will be stored for fewer than 18 months, not five years or more.
But section 215 of the Patriot Act was only one of a number of overlapping surveillance authorities. The USA Freedom Act will leave the government with a range of powerful surveillance tools. These include:
- Section 702 of the Foreign Intelligence Surveillance Act Amendments Act (FISA): Unlike the NSA’s metadata surveillance program, collection under FISA’s Section 702 captures the content of communications. This could include emails, instant messages, Facebook messages, Web browsing history and more. Section 702 has been used by the NSA to justify mass collection of data directly from the physical infrastructure of communications providers.
- Executive Order 12333: Issued by President Reagan in 1981, it allows the executive branch to spy on foreigners with no regulation by Congress. Millions of innocent foreigners’ communications are collected, including any containing Americans’ communications.
- Pen Registers: These allow the government to collect “dialing, routing, addressing or signaling information,” including telephone numbers dialed and Internet metadata, such as IP addresses and email headers.
- FISA’s Business Records Provision: This allows the government to obtain business records from transportation carriers and storage facilities. The government routinely considers private communications to be “business records.”
- An ECPA “D Order”: Under Section 2703(d) of the Electronic Communications Privacy Act (ECPA), the government can get a court order for information from communications providers about their customers, including the sorts of metadata the government gets with Section 215. The government must provide “specific and articulable facts showing that there are reasonable grounds to believe that … the records or other information sought, are relevant and material to an ongoing criminal investigation.”
- National Security Letters (NSLs): Similar to subpoenas, NSLs allow intelligence agencies to collect records from telecommunications providers, financial institutions, credit reporting bureaus, travel agencies and other entities. Nearly all NSLs include gag orders, which prevent the target from telling anyone they have been served with an NSL. The government can use NSLs to collect much the same information as Section 215. NSLs have been routinely misused.
- Administrative Subpoenas: Many federal agencies have the authority to issue subpoenas for customer records in their normal course of business. These authorities are extremely widespread, comprising 335 different statutes by one count.
All of these authorities continue to exist as before. Perhaps worst of all, however, an Obama administration official confirmed last Wednesday that the government would ask the secretive Foreign Intelligence Surveillance Court to certify that the NSA’s Section 215 bulk records collection was part of an “ongoing” investigation, and could therefore continue indefinitely … until the “investigation” into terrorism is someday over.
The Law Isn’t on Your Side
Besides almost certainly being unconstitutional, the government’s abuse of these surveillance powers since 2001 is both illegal and useless. A federal appeals court ruled the NSA’s bulk metadata program illegal last month, saying most members of Congress never intended for the Patriot Act to be interpreted that way. Moreover, a presidential panel concluded that the information gleaned from the NSA’s spying on Americans “was not essential to preventing [terrorist] attacks and could readily have been obtained in a timely manner using conventional [court] orders.”
The law wasn’t on your side under the Patriot Act, and it isn’t on your side now. You need to continue to take steps to secure your own privacy and sovereignty from these outrages … and I will continue to help you to do so.
Offshore and Asset Protection Editor