It took Amy Davidson of the New Yorker until 1:40 p.m. Monday to finally surface in what is vaguely the establishment press the point I have been looking to echo for weeks — the point I keep making in various meetings, the point I keep raising in background discussions.
What seemed absent from most coverage of the debate over Patriot Act extensions, USA Freedom Act revisions and the future of the National Security Agency’s bulk phone metadata collection program — even as Senate Majority Leader Mitch McConnell, R-Ky., went to the mat, pre- and post-Memorial Day break, for a straight renewal of Patriot’s Section 215 authority — is that, just week’s prior, the United States Court of Appeals for the Second Circuit unanimously ruled said Section 215 did not provide the legal justification for the wholesale data trawl. In the words of the ruling (PDF), Section 215 “cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program.”
Though this administration and the last, and their respective intelligence heads, had used the Patriot Act as the grounds for a seemingly unbroken string of 90-day warrants, granted by the secret Foreign Intelligence Surveillance Court (or FISC, or FISA Court), and could continue to do so even under a lapsed Section 215 by invoking grandfather provisions, the Obama White House has sworn not to do so, and has, by all appearances, gone past the 90-day limit of the last order.
And now, Ms. Davidson:
The [House version of the] Freedom Act could have passed more than a week ago, leaving no gap in the NSA’s capabilities, if McConnell had not pushed, instead, for what he insisted on calling a “clean” renewal of Section 215. (Two other provisions had June 1 sunsets, too, but they are rarely used.) McConnell did so utterly unchastened by a Second Circuit Court of Appeals ruling last month, which said that the law did not actually allow the NSA to do the things that the agency did in its name. Section 215 says that the NSA can, after going to the Foreign Intelligence Surveillance Act court, compel the production of “tangible things” that are “relevant” to an “authorized investigation.” As the Second Circuit found, the NSA treated the entire universe of American phone records as one tangible thing, broadened relevance to the point of meaninglessness, and ignored the limitations that the law placed on what counted as a specific investigation, to the point that “the government effectively argues that there is only one enormous ‘anti-terrorism’ investigation, and that any records that might ever be of use in developing any aspect of that investigation are relevant to the overall counterterrorism effort.” In other words, the NSA, despite having enormous legitimate powers, was breaking the law. McConnell seemed outraged that anyone should suggest that it stop.
By most accounts, we are now witnessing the result of a ham-fisted miscalculation by the usually sure-handed vote counter McConnell — the Senate is now in clock-watching mode as it waits for cloture to “ripen” and votes on the House version of the USA Freedom Act to take place Tuesday or Wednesday. McConnell’s refusal to embrace debate before the break, so it is told, and the semi-steadfast stand by Rand (Paul, that is, the other R-Ky., and presidential hopeful), have doomed the NSA’s bulk data program as we know it.
But in reality, as the nation mostly pays no mind to the debate, what those who are still watching are watching is not so much the reining in of bulk data collection as it is the saving of it.
The USA Freedom Act might not allow the NSA to waste its expansive and expensive server space on your telephone metadata, but by the actual authority of the law, it very much permits the federal government to look at all that information.
Though there is still tangible legislation to pass and a conference to hammer out the differences between House and Senate versions, what will likely result will have the government paying private telecom companies to warehouse the metadata, with the NSA or FBI or whathaveyou turning to FISC for a warrant to look at it. But now, thanks to the new law, the telcos will have immunity for challenges to vacuuming up your data, the warrants will allow for “second hop” connections to expand their reach, and other kinds of metadata (like that from internet usage) will continue to be at the quasi-legal fingertips of the intelligence community.
And if you want to believe that, at least under the Freedom Act, there is a court to stand between the government and the abuse of its spying authority, just remember, that would be the same FISA court that consistently and repeatedly, for the better part of the last 13 and a half years, gave the A-OK to behavior a U.S. Appeals Court ruled was clearly and completely illegal.
When the 2nd Circuit decided in May against the federal government and its use of Section 215 as the justification for bulk data collection, the judges made a point of noting they were ruling specifically against the use of language in the Patriot Act as the legal cover for the NSA’s broad but particular behavior:
We do so comfortably in the full understanding that if Congress chooses to authorize such a far-reaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously.
By Wednesday, the Senate may not have exhausted every opportunity, but they will have exhausted enough of them. And, if the coverage is any indication, members of Congress were somewhat less than unambiguous, at least in their public pronouncements. But the choice will still have been made.
Section 215 may finally be gone, but thanks to the Freedom Act, the ability of the government to examine vast amounts of personal data, and do so under the color and the cover of authority, lives on.