Wednesday, April 2, 2014

Beware the surveillance reform Trojan horse: what’s not in the new NSA laws?

This week was undoubtedly a turning point in the NSA debate. Edward Snowden said it himself on Monday, as some of the NSA’s most ardent defenders, including the House Intelligence Committee and the White House, suddenly released similar proposals endorsing the end of the NSA’s bulk collection of phone records as we know it.

Stopping the government from holding onto of all Americans’ phone metadata would undoubtedly be a good thing for American privacy, but if you read between the legislative lines, the government might not be curtailing mass surveillance so much as permanently entrenching it in American law.

Rep Justin Amash, one of the NSA’s leading critics in the House, said of the Intelligence Committee bill: “It doesn’t end bulk collection but actually puts more Americans in danger of having their constitutionally protected rights violated.” While the Obama plan is undoubtedly more promising, with court requests and much more, Jameel Jaffer of the American Civil Liberties Union has several important questions about the proposal that need to be answered before anyone will really be able to judge. And the Cato Institute’s Julian Sanchez detailed why neither of these proposals are as good as the USA Freedom Act, which may now be getting boxed out.

To be sure, neither of the two new proposals would actually “end mass surveillance”, as this National Journal headline proclaimed, or even “end bulk collection” entirely, as most of the other reports suggest. Even the authors know it: the title of the House Intelligence bill was the “End Bulk Collection Act” for just one day before it was changed, perhaps because, as Techdirt’s Mike Masnick wrote, “[Rep Mike] Rogers and his staff realized that … was so bogus that they couldn’t go forward.”

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? And then there’s this clause, pointed out by the eagle-eyed Marcy Wheeler, which seems to try to head off court challenges to the bill once it’s passed into law.

At least the White House proposal insists on “a new kind of court order” before every search, but the administration has already started slipping into dangerous territory. According to the first report in the New York Times on Monday, the NSA would only be allowed to search phone records under the Obama proposal if the agency could prove a reasonable suspicion to terrorism. By the end of the week, the White House’s “fact sheet” said the NSA would be able to search “within two hops” of phone records – that’s potentially tens of thousands of people – based on a phrase that should send chills down the spine of every journalist who has ever had a source the government may not like: “national security concerns”. Why do they even need the extraordinary “two-hops” power at all again?

And what about all the reforms left out of both proposals? Like preventing “backdoor” warrantless searches on Americans. Like stopping the NSA from undermining common encryption used by everyone. Like leaving bulk collection for the rest of the world’s citizens untouched. As Foreign Policy’s Shane Harris wrote, the NSA may get more out of this bill than Snowden himself.

Full article: http://www.theguardi … -not-in-new-nsa-laws

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