- I will attempt to break down Section 309 of House Resolution 4681 (Intelligence Authorization Act for Fiscal Year 2015) in as simple and concise a way as possible. As a caveat to the reader, I am not a lawyer or constitutional scholar. I the only legal training I have is the ability to read documents critically and reference precedents where necessarily. To view the most recent version of the bill, which includes the Senate amendment, go here: https://www.congress.gov/bill/113th-congress/house-bill/4681/all-actions and click on the "Text" tab. The version should default to 12/09/14. The devil's in the details, so with that in mind, let's begin.
- H.R. 4681 § 309 begins with subsection (a) which defines some terms. "Covered communications" in (a)(1) simply refers to non-public (private) electronic communications and digital data associated with them collected through wiretapping, backdoors in e-mail clients, and other forms of electronic surveillance. Think about e-mails to your family or coworkers, IMs, text messages, Skype or other VoIP conversations, etc. I do not know for sure if forum or imageboard posts would be covered under this provision, but I assume that they are because such posts are non-public in that the user is either anonymous or identified by a pseudonym that does not correspond to their real name. "Head of an element of the intelligence community" in (a)(2) is a fancy way of referring to the leaders of intelligence agencies. This would apply to the Director of the CIA, the Director of the FBI, the director of the NSA, their deputy and assistant directors, and other leaders of agencies that I have omitted. "Head of department" means much the same thing. "United States person" in (a)(3) carries the same connotation as it does in § 309 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801). To pull the definition from that law (which corresponds to Title 50 (War and National Defense) of the United States Code, § 1801:
- " 'United States person' means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section."
- src: http://www.law.cornell.edu/uscode/text/50/1801
- In short, if you are a U.S. citizen or a permanent resident, this means you.
- In (b)(1) a window of two years is given from the passage of the bill (when President Obama signs it, not when the House or Senate passes it) for the heads of the intelligence agencies to adopt the procedures set out in this law. What that means is that the intelligence community may not completely realign itself to conform with these stipulations until two years from the point when Obama signs the law, if he does. In (b)(2) it is further stated that the Director of National Intelligence (the primary advisor to the National Security Council (NSC) and the president, but it is not a cabinet level position; the current DNI is Lt. Gen. James Clapper (Ret.)) must assist in the development of these guidelines and that the Attorney General must approve them prior to issuance.
- Paragraph (3) is where the most interesting details are found. Subparagraph (A) concerns application. It states that these guidelines apply to intelligence collection NOT authorized by a court order or warrant. Reference to "orders...issued by a court established under...the Foreign Intelligence Surveillance Act of 1978 refers to the FISA courts that oversee, grant, and deny requests for foreign surveillance made by U.S. government agencies.
- Subparagraph (B) sets a clearly-defined limit of five years on collected electronic communications; however, this ceiling is not set in stone and can be circumvented. Clauses (i) through (vii) detail these various exceptions to the rule.
- Clause (i) makes an exception if "the communication has been affirmatively determined, in whole or in part, to constitute foreign intelligence or counterintelligence or is necessary to understand or assess foreign intelligence or counterintelligence." If the message collected from you is "vital" to an investigation of a suspected foreign intelligence agent, it is exempt from the five-year storage limit, regardless of whether or not the entire communication contains pertinent information. So if your nerdy ass stays up all night playing DOTA 2 and you send a threatening Steam message to some Russian pub who later turns out to be an undercover FSB agent, well, your message will be sitting in NSA servers at Fort Meade for a long time.
- Clause (ii) is pretty self-explanatory: "the communication is reasonably believed to constitute evidence of a crime and is retained by a law enforcement agency."
- Clause (iii), in my opinion, is ripe for exploitation and could easily net lots of false positives. It reads "the communication is enciphered or reasonably believed to have a secret meaning." Now I don't know about what you think, but this could, read broadly, subject millions to of people who use encryption and cryptography technology to unreasonable search and seizure of their messages. This could be used to unfairly target security-conscious individuals, further stigmatize the relatively small portion of internet users who do make use of PGP public and private keys, DNSCrypt, and hard drive encryption, and undermine privacy in general.
- Clause (iv) is another flagrant subversion of an individual's right to privacy. It reads "all parties to the communication are reasonably believed to be non-United States persons." So if you happen to be a foreigner in the United States talking to someone from home, you can kiss your privacy rights goodbye if the NSA decides your information is worth collecting, no matter how dubious its value may be.
- Clause (v) refers to intelligence collected in order to avert terrorist attacks, if "retention is necessary to protect against an imminent threat to human life, in which case both the nature of the threat and the information to be retained shall be reported to the congressional intelligence committees not later than 30 days after the date such retention is extended under this clause." It requires the Congressional intelligence committees to be informed within one month of the extension. Given the promptness and candor with which the CIA reported the number of inmates in Guantanamo Bay and the types of interrogation being performed, I am sure nothing will go wrong and due diligence will be followed. No really, I'm sure of it guys. Just trust me.
- Clause (vi) allows information to be maintained if "retention is necessary for technical assurance or compliance purposes, including a court order or discovery obligation, in which case access to information retained for technical assurance or compliance purposes shall be reported to the congressional intelligence committees on an annual basis." So if the data is relevant to a criminal case, it will be kept past the five year mark. Seems like standard operating procedure to me.
- Clause (vii) allows for retention to be approved by a "head of an element of the intelligence community responsible for such retention." So if the FBI needs the goods, they get the goods. However, it must report to Congress why retention is necessary to protect national security, for how long the data is needed, and what measures are being taken to protect "the privacy interests of United States persons or persons located inside the United States." Again, I am sure honesty will prevail. No one would lie in front of Congress while under oath, right?
- This is a dangerous bill. It is filled with broad, overarching provisions and threats to civil liberties and privacy. It is so rife with exceptions and corollaries that any measly "protections" or reforms of the handing of private communications are essentially rendered powerless. Representative Amash is right to oppose this bill and you are right to be frightened of it. I am not sure the implications of this bill are fully realized by the people who voted for it and those who ignore its potential to become law. You know what to do from here. Educate yourself and educate others, don't rely on one source of information, cut through the bullshit and think for yourself, and most importantly, don't be silent.
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