ANALYSIS:
US Passes new Surveillance Law
In a mix of presidential politics, national security debate, and arguments from both sides of the political spectrum on the right to privacy, the US Congress finally passed a bill to continue the collection of phone metadata on American and international communications. However, the bill that passed was seen as too weak by many, including Senate Majority leader Senator McConnell and former presidential candidate Senator McCain. On the other end, one presidential candidate Rand Paul saw the legislation as an unconstitutional threat to personal privacy.
The USA Freedom Act extends three expiring surveillance provisions of the 9/11 inspired Patriot Act. It also overhauls the most controversial provision, which had been interpreted to allow bulk collection of U.S. phone records by the National Security Agency.
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What the New Law Does and Doesn’t do
The USA Freedom Act is the biggest curb on the government’s data collection since the 1970s. But the limits are marginal compared to the National Security Agency’s vast digital spying operations.
Despite those who wanted to renew the authority for the NSA, it proved to be a counterterrorism program that has proven so useless in terms of stopping terrorist threats that some NSA officials wanted to end it anyway.
Independent reviews of the program found that it wasn’t a critical tool. In fact, one problem was that it gave the government so much raw data that the NSA couldn’t process. The only reason the NSA didn’t propose keeping the records with the phone companies years ago, former Director Keith Alexander has said, is that no one wanted to seek legislation from Congress while the program remained a secret.
With the new legislation, there will be a six-month transition before the NSA’s bulk collection of Americans’ phone records must end (private communications companies, however, will still keep the data). At that time, there will be a system of case-by-case searches of records held by phone companies.
Phone data collection will resume for six months, provided that the Foreign Intelligence Surveillance Court orders phone companies to turn over the records and that no court stops it under various pending lawsuits. During that period, the NSA will work with communication companies to come up with a way to quickly query their records against known terrorist phone numbers, pursuant to a court order. It will be able to collect data for all the numbers in contact with the suspect number, and all the numbers in contact with those numbers. That means the NSA will still be tracking Americans’ phone records, but it won’t be collecting all of them
The program, which started shortly after 9/11, was revealed by former NSA contractor Edward Snowden. Most of the Snowden disclosures merely shed light on the NSA’s legal mission of gathering foreign “signals intelligence.” However, the way the agency collects foreign intelligence in the internet age also means the NSA “inadvertently” collected a lot of American communications. However, none of those programs are affected by the law Obama signed Tuesday night.
“It’s being talked about like it’s the Declaration of Independence or something,” said Robert Deitz, a former NSA lawyer. “These adjustments are marginal.”
“No one should mistake this bill for comprehensive reform,” said Jameel Jaffer, legal director of the American Civil Liberties Union. “The bill leaves many of the government’s most intrusive and overbroad surveillance powers untouched, and it makes only very modest adjustments to disclosure and transparency requirements.”
The Electronic Frontier Foundation was also skeptical about the reforms. “In the wake of the damning evidence of surveillance abuses disclosed by Edward Snowden, Congress had an opportunity to champion comprehensive surveillance reform and undertake a thorough investigation, like it did with the Church Committee. Congress could have tried to completely end mass surveillance and taken numerous other steps to rein in the NSA and FBI. This bill was the result of compromise…”
Nor does this legislation stop other agencies from collecting domestic data. In January, the Drug Enforcement Administration formally acknowledged that it maintained a sweeping database of phone calls made from the U.S. to foreign countries, a program it discontinued in 2013. It is unclear exactly how the information collected in those efforts has been used.
It was also revealed this week that the FBI is actively collecting communications intelligence on Americans with a fleet of aircraft registered in the names of shell companies. Journalists discovered that the FBI had used covert surveillance planes in at least 30 US cities, covering 11 states, during a recent 30-day period. These aircraft appeared to carry high-quality video equipment for filming activity on the ground and cellphone tracking equipment.
Whether law enforcement can obtain cellphone location data without a warrant is an issue that’s going to end up in the Supreme Court, according to the American Civil Liberties Union.
Some members of Congress have expressed fierce opposition to the way the government collects private data on Americans, especially the private information collected from U.S. technology companies under the PRISM program.
“Under current law, the government can search the database on a fishing expedition and get those communications created under this program, including searching information about a U.S. citizen,” Rep. Ted Poe, a Texas Republican and former judge, said during a House Judiciary Committee hearing in April. “This can be done without a warrant. That seems to violate the Fourth Amendment of the Constitution to me.”
However, this concern wasn’t addressed by the USA Freedom Act because there was too much political opposition. Unlike the phone records program, the PRISM collection has proven instrumental in foiling terrorist plots, and lawmakers are loath to abandon it. The Obama administration earlier this year tightened some rules on how data on Americans is handled, but rejected more rigorous procedures recommended by a presidential task force on surveillance.
Searches of phone company records under the USA Freedom Act may not work as swiftly as the current system, but the NSA will also gain access to mobile phone records it doesn’t now collect under the program.
“The damage that’s been done to our intelligence capabilities is modest,” said Stewart Baker, a former NSA general counsel.
Indeed, he and other analysts said, other fallout from the Snowden leaks has played a stronger role in hemming in the NSA than anything Congress has done. The Obama administration curbed some foreign surveillance; foreign governments and technology companies are less eager to cooperate, and Apple and Google have begun encrypting mobile data, making it more difficult for governments to eavesdrop.
There are also other unanswered questions. Will the phone data already collected by the NSA, but declared illegal by the court be retained? Will the NSA make other reforms based on the revelations made by Snowden?
The Politics of Domestic Surveillance
The fact that the USA Freedom Act became law instead of the expected renewal of the Patriot Act was due to two facts – a court ruling that phone data collection was unconstitutional and Senate Majority McConnell’s desire to renew the Patriot Act despite opposition from a majority of congressmen.
The politics of renewing the Patriot Act was irreversibly changed when the administration was unsuccessful in defending its interpretation of Section 215 of the Patriot Act in the U.S. Court of Appeals for the 2nd Circuit.
Judge Gerard Lynch, an Obama appointee, opposed the administrations interpretation. He wrote, “The records demanded are not those of suspects under investigation, or of people or businesses that have contact with such subjects, or of people or businesses that have contact with others who are in contact with the subjects — they extend to every record that exists, and indeed to records that do not yet exist, as they impose a continuing obligation on the recipient of the subpoena to provide such records on an ongoing basis as they are created.”
“The government can point to no grand jury subpoena that is remotely comparable to the real time data collection undertaken under this program…If the government is correct, it could use (Section) 215 to collect and store in bulk any other existing metadata available anywhere in the private sector, including metadata associated with financial records, medical records, and electronic communications (including email and social media information) relating to all Americans,” said the judge.
“Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans,” he said.
This ruling hurt the Patriot Act in two ways. First, it reiterated what many Republicans and Democrats said; that this was an unconstitutional invasion of American’s privacy. Second, it meant that merely renewing the act was not a viable option as Congress needed to address the court’s concerns in any legislation.
This court ruling gave the House passed USA Freedom Act more momentum, especially since it was passed by an overwhelming bipartisan majority in the US House.
The second blow to the Patriot Act came when Senate Majority leader Senator McConnell tried to rush the bill through in the last hours before the Senate’s Memorial Day recess. When it was clear that a majority of senators preferred the House passed USA Freedom Act, McConnell tried to pass temporary extensions of the current legislation. That also failed.
In the end, McConnell was faced with a hard choice. Either he could let the controversial parts of the Patriot Act die, or he could compromise and accept the House version. In the end, McConnell was forced to accept the House version, which was passed and sent to the White House for Obama’s signature.
The fact is that McConnell was a bigger loser in this legislative battle than the NSA.
Presidential Politics
The battle over domestic surveillance also had a strong current of presidential politics in it. The champion of not renewing the Patriot Act or passing the USA Freedom Act was Senator Rand Paul, a Republican candidate for president. And, while most of the other Republican candidates for president supported renewal of the Patriot Act, Paul allied himself with Democratic senators to block the legislation long enough that the controversial parts of the act expired on June 1.
While most Republican presidential candidates are trying to stake out positions that appeal to traditional, older Republican voters, Paul has pushed a libertarian, small government platform that has appealed to younger voters, who tend to vote for Democrats. This has attracted many Republicans who see a need to expand their voter base like Reagan did in 1980.
Although considered a bit more moderate than his father, former congressman and Republican presidential candidate Ron Paul, Rand Paul has a strong libertarian streak that sets himself apart from the rest of the Republican presidential crowd.
Admittedly, Paul is not the only Republican critic of government bulk data collection. Rep. Jim Sensenbrenner, (R-Wis.), author of the original Patriot Act, believed that the government was overreaching on surveillance, and as a result, authored the USA Freedom Act.
However, a recent CNN poll shows that 73 percent of Republicans support government collection of bulk telephone records. While many take that to mean that Paul is fighting a losing war, it also means that 27% of Republicans support his stand on domestic surveillance. In addition, a majority of Republican voters do favor modifications to the law.
The demographic break down shows Paul is following a good strategy for the upcoming GOP primaries. A new poll by Morning Consult shows younger voters and self-described Tea Party supporters, two constituencies upon whom Paul has relied for support, were more likely to favor allowing the provisions to expire. One-third of those between the ages of 18-29 said they favor an end to the programs, while just 8 percent wanted them to continue unaltered; 31 percent of Tea Party backers favored expiration, versus just 13 percent who backed continuity.
And, although the polls show considerable volatility in the Republican nomination race, Paul regularly shows up at the top. In an ABC/Washington Post poll taken at the end of May, Paul tied with Wisconsin Governor Scott Walker for the top place – nudging out Bush, Rubio, and Cruz. Paul also runs within the margin of error in general election polling against Hillary Clinton, despite the fact that Clinton has higher name recognition.
Other candidates had differing opinions, but tended to side with more surveillance. Walker supported renewal of the Patriot Act. Cruz supported the Freedom Act, while Rubio joined Paul to vote against it. However, Rubio voted against it because it he thought it weakened national security. Bush also supported the Patriot Act. That leaves Paul as the only candidate supporting an issue that resonates with 27% of Republicans, while the rest of the field, which is nearing two dozen, must fight over the remaining 73% of Republican voters.
The result is an intriguing campaign strategy for Paul – push privacy issues that attract young Democratic demographics and also focus on small government issues that appeal to older Republicans. At the same time, play up his disagreements with fellow senators, who have a very low approval rating with all voters.
Although the road to the White House is long for a Rand Paul candidacy, this strategy offers some strength and sets himself apart from the crowd.
PUBLICATIONS
The Symbolic Sunset & What’s Next for the USA Freedom Act
By Julian Sanchez
Cato Institute
June 1, 2015
Because the gods of traffic metrics are stern taskmasters, you’ll likely read a lot of headlines today about “the expiration of the Patriot Act,” possibly paired with the implication that Rand Paul has singlehandedly dealt the National Security Agency some sort of crippling defeat. The reality is still exciting news for civil libertarians, but would yield the rather more prosaic headline: “Major surveillance reform moves forward by huge Senate majority; USA Freedom Act to pass this week after brief and largely irrelevant lapse of about 3% of the Patriot Act.” The only real question is whether Mitch McConnell will be able to peel off enough hawkish Democrats to weaken the reform further first—but happily his prospects seem doubtful. From an operational and policy perspective, the sunset really doesn’t matter. The bulk telephony metadata program will end, but they started winding that down a week ago, and will also have to end it under the USA Freedom Act. For all other purposes, grandfather clauses will allow the government to keep using the expired authorities for all their existing investigations, and even without that, as I observed at Vice‘s Motherboard last week, they’ve got plenty of overlapping authorities that would allow them to obtain most of the same information.
Electronic Surveillance After Section 215 of the USA Patriot Act
By Denise E. Zheng
Center for Strategic and International Studies
June 1, 2016
Last night, Section 215 of the USA Patriot Act, the law authorizing the U.S. government to collect a broad variety of business records for national security investigations expired after Congress failed to pass the USA Freedom Act, a straight reauthorization of the provision, or any alternative bill that would have extended the authority. Section 215 conferred subpoena-like authority to the Foreign Intelligence Surveillance Court (FISC) to order companies, organizations, and other third party entities to turn over records and other tangible things to federal investigators. It served as the basis for the National Security Agency’s (NSA) controversial bulk telephone metadata collection program disclosed to the public by Edward Snowden, although the legality of the program is contested. Current and former intelligence community officials and FBI Director James Comey have said that Section 215 provides an essential tool and losing the authority will “severely” impact terrorism investigations, but the truth is that the government can most likely access the same information through other surveillance statutes that did not expire.
Is Unemployment to Blame for Radicalization?
By Michele Dunne
Carnegie Endowment
May 22, 2015
World Economic Forum
“There is no space for young people, who are under lots of pressure,” an Egyptian journalist told me, adding that “ISIS is playing in the back of everyone’s mind,” a rather shocking comment coming as it did from an avowedly secular, educated young man from an affluent background. Anecdotal accounts of why young people from Egypt, Tunisia and other countries in the Middle East and North Africa (MENA) region join or at least support jihadi movements often mention a sense of grave injustice related to personal or political grievances, paired with profound alienation from their own societies. According to Imen Triki, a lawyer who has represented many jihadis returning to Tunisia, “In Syria, they are told they’ll get houses, they’ll get wives. These people are so alienated from our society that some choose this option in a heartbeat.” A sense of purpose also seems to be an important motivator; “I would prefer to die a martyr in Syria than drinking beer here in Tunis,” said one young man from a poor district of the city.
Read more
No Substitute For Seriousness In Iraq
By Ilan Berman
American Foreign Policy Council
May 28, 2015
A recent weekend brought two very different dispatches from the front lines of the global war on terror. The first was a tale of tactical success; the second a narrative of strategic failure. On May 16, a detachment of U.S. special operators carried out a daring nighttime raid against Islamic State militants in eastern Syria. In the process, they killed Abu Sayyaf, a high-level official responsible for overseeing much of the group’s oil revenues in Syria. But this good news was counterbalanced by a decidedly less favorable development, and on a much larger scale. Just a day after the Syrian raid, the Islamic State scored a major battlefield victory when it successfully seized control of Ramadi, the capital of Iraq’s western Anbar province. It did so despite significant opposition from Iraq’s military, and in spite of nearly 200 airstrikes carried out there by the United States in preceding days.
From the Transformation of Turkey’s Political Fault Lines to the Construction of a New Political Center
By Galip Dalay
German Marshall Fund
June 2, 2015
During the republican period, Turkey’s two most enduring fault lines have been about ethnic — Kurdishness versus Turkishness — and religious — Islamism versus official laicisim — identities. These two identity clashes were the major sources of tension in the political sphere. Yet the ruling Justice and Development Party (AKParty), whose founding cadres come from a political Islamic background, have now, uninterrupted, ruled the country since 2002. During this time, the state has gradually ceased encroaching on the rights and liberties of the Islamic sections of society, which has in return lessened their grievances vis-à-vis the state. Likewise, Turkey has travelled a long way in recognition of the cultural and political rights of the Kurds during the same time period. The state has gradually shifted the Kurdish issue to being more of a political than a security concern. The Kurdish Movement has increasingly become a key player on Turkey’s political scene, the process of which has taken some pressure off these groups.
The Crisis of the Assad Regime
By Jeffrey White
Washington Institute
May 28, 2015
PolicyWatch 2429
Last week, the Bashar al-Assad regime suffered two significant defeats at the hands of two different armed opposition forces: the first to the Islamic State of Iraq and al-Sham (ISIS) at Palmyra in eastern Homs province, and the second to Jaish al-Fatah forces, to which it lost its last major foothold in Idlib province. While these defeats do not signal the regime’s imminent demise, they do indicate that the war is running against it and that a long recession has likely begun, leading to the state’s collapse or contraction. The regime and its allies will fight back and will likely have some successes on some fronts of the war, but after more than four years of fighting basic factors in the conflict are tilting against the regime and the regime’s capacity to redress the balance. It would require major changes in the situation for this to be stopped or reversed, including: a shift to a strategy of consolidation, a significant increase in commitment of forces by the regime’s allies, reversing the upward trend in rebel capabilities, or outside diplomatic intervention to freeze or resolve the conflict.
The Islamic State’s Saudi Chess Match
By Aaron Y. Zelin
Washington Institute
June 2, 2015
PolicyWatch 2432
Over the past two weeks, the so-called “Islamic State” (IS) has claimed two attacks on Shiite mosques in Saudi Arabia’s Shiite-majority Eastern Province, one in Dammam and the other in Qatif. While the incidents might not have an immediate impact on the kingdom’s overall security, they are relevant to long-term IS strategy of weakening the Saudi government by exposing its alleged hypocrisy. They also illustrate how IS has choreographed its actions in phases for its Arabian Peninsula theater. For example, when IS leader Abu Bakr al-Baghdadi announced new wilayat (provinces) for the so-called caliphate in Saudi Arabia and Yemen last November, he told supporters that Shiites should be targeted first. And in remarks made last month, he zeroed in on the Saudi state and what he described as its failed Yemen war. The latest attacks are therefore harbingers of a wider IS threat to Saudi Islamic legitimacy.
