Revising the Patriot Act

In Washington, the defense hawks who have staunchly defended government spying are reeling as an alliance of liberal Democrats and Tea Party Republicans, supported by the White House, is set to force major changes in the Patriot Act:

On Thursday, a bill that would overhaul the Patriot Act and curtail the so-called metadata surveillance exposed by Edward J. Snowden was overwhelmingly passed by the House Judiciary Committee and was heading to almost certain passage in that chamber this month.

An identical bill in the Senate — introduced with the support of five Republicans — is gaining support over the objection of Senator Mitch McConnell, Republican of Kentucky, who is facing the prospect of his first policy defeat since ascending this year to majority leader.

The push for reform is the strongest demonstration yet of a decade-long shift from a singular focus on national security at the expense of civil liberties to a new balance in the post-Snowden era.

Under the bipartisan bills in the House and Senate, the Patriot Act would be changed to prohibit bulk collection, and sweeps that had operated under the guise of so-called National Security Letters issued by the F.B.I. would end. The data would instead be stored by the phone companies themselves, and could be accessed by intelligence agencies only after approval of the secret Foreign Intelligence Surveillance Act court.

Love the way the Times refers to this as the "post-Snowden era." I hope Obama pardons him as one of the last acts of his term.

It is also interesting to think about Obama's role in this. His people are supporting these revisions, and have signaled he would sign the House bill. But he doesn't need a law; this is an area in which he absolutely could proceed by executive order if he wanted to. The NSA works for him, and as their boss he could just order them to stop collecting this information. (The Patriot Act says the government can do these things, it doesn't say we have to.) After all, he ordered the CIA to stop waterboarding people without waiting for Congress. So why hasn't he? Some possibilities: maybe he prefers to act through Congress and has only resorted to executive actions when Congressional action seems impossible; since revisions to the Patriot Act clearly are possible, he waits. Or maybe he really doesn't care much about this issue and has just gone with the political flow. Or maybe there is an underlying problem, that the President has much less control over the secret parts of the government that we would like to imagine, and it is actually quite difficult for him to get the CIA and the NSA to follow his orders, so he thinks he needs the support of Congress to really get the NSA to mend its ways.

Republicans Block NSA Reform

Consider this a warning to the libertarian-minded that the new Republican congress will lean toward authority as Republicans usually do:

Senate Republicans on Tuesday blocked a sweeping overhaul of the once-secret National Security Agency program that collects records of Americans’ phone calls in bulk.

Democrats and a handful of Republicans who supported the measure failed to secure the 60 votes they needed to take up the legislation. The vote was 58 to 42 for consideration.

Senator Patrick J. Leahy, the Vermont Democrat who drafted the bill, blamed what he said was fear-mongering by the bill’s opponents for its defeat. “Fomenting fear stifles serious debate and constructive solutions,” he said. “This nation deserves more than that.”

Since this bill was supported by Obama,  it can hardly have been very radical. But for most Republicans fear of terrorism still trumps our rights:

“This is the worst possible time to be tying our hands behind our backs,” Senator McConnell said before the vote, expressing the concerns of those who argued that the program was a vital tool in the fight against terrorism.

Republicans have had a lot of success trading on dislike of Obama and fears about the state of the country, but they are still the party of W and Romney and have nothing new to offer.

Fake Cell Phone Towers?

According to this article in Popular Science, America is full of fake cell phone towers that are actually spying or hacking devices. Who would have built them, and why? Apparently not the NSA, which can hack your phone through the regular network and doesn't need its own towers. But at least some are run by other branches of the government, possibly military security.

If this is true, how bizarre.

One in Nine is a Target

The Washington Post's review of sample data supplied by Edward Snowden shows that the NSA collects data on nine regular citizens for every "target" they try to focus on, which they estimate means 900,000 people. And once the NSA collects that data, they keep it forever, even if they know that it was collected "inadvertantly."

Police Need a Warrant to Search your Cell Phone

Great news from the Supreme Court:

In a major statement on privacy rights in the digital age, the Supreme Court on Wednesday unanimously ruled that the police need warrants to search the cellphones of people they arrest.

I consider this more fallout from the Snowden revelations and the general unease in the country over the vulnerability of our digital lives to snooping.

Moves Against Surveillance in the House of Representatives

Wired:

In a late night session, the House of Representatives voted 293 to 123 to pass an amendment to a Department of Defense appropriations bill that would cut off all funds for two of the agency’s most embattled activities: First, using the 702 provision of the Foreign Intelligence Surveillance Act to perform searches of collected surveillance data that target Americans, and second, asking hardware markers and software developers to build backdoors into their tools designed to give the agency access to users’ communications. On that second count, the amendment specifically forbids funding for any agency attempt “to mandate or request that a person redesign its product or service to facilitate…electronic surveillance.”

This is what I hoped would happen after Snowden's revelations and the growing unease among Americans over the government's surveillance capabilities. I never thought there would be a huge uproar and a radical move to curtail surveillance in one big bill. But Congress considers the details of surveillance policy on a regular basis, viz., every time they vote on a budget for the NSA or the Defense Department, and I hope that they will continue to whittle away at domestic spying. These days it is the populists of left and right who are energized about this issue, and the security alarmists who are in weary retreat.

House Votes for Modest Limits on NSA Surveillance

Great news from Washington:

The House on Thursday voted overwhelmingly to rein in the National Security Agency’s sweeping collection of telephone records, approving scaled-back legislation that sharply divided the technology sector and civil libertarians but united the White House, conservative Republicans and liberal Democrats. The 303-to-121 vote sent an unambiguous signal that both parties are no longer comfortable with giving the N.S.A. unfettered power to collect bulk surveillance data.

Personally I think these limits are not nearly enough -- they were watered down at the last minute after White House lobbying, which led the Internet companies to turn against them -- but at least they're something. If we keep pushing, we may get real limits eventually. As a bonus, this is an issue on which Tea Partiers and liberals can work together.

The Magistrates' Revolt

Fascinating article in the Post about a movement to protect civil liberties by federal magistrates:

Judges at the lowest levels of the federal judiciary are balking at sweeping requests by law enforcement officials for cellphone and other sensitive personal data, declaring the demands overly broad and at odds with basic constitutional rights.

This rising assertiveness by magistrate judges — the worker bees of the federal court system — has produced rulings that elate civil libertarians and frustrate investigators, forcing them to meet or challenge tighter rules for collecting electronic evidence.

Among the most aggressive opinions have come from D.C. Magistrate Judge John M. Facciola, a bow-tied court veteran who in recent months has blocked wide-ranging access to the Facebook page of Navy Yard shooter Aaron Alexis and the iPhone of the Georgetown University student accused of making ricin in his dorm room. In another case, he deemed a law enforcement request for the entire contents of an e-mail account “repugnant” to the U.S. Constitution.

For these and other cases, Facciola has demanded more focused searches and insisted that authorities delete collected data that prove unrelated to a current investigation rather than keep them on file for unspecified future use. He also has taken the unusual step, for a magistrate judge, of issuing a series of formal, written opinions that detail his concerns, even about previously secret government investigations.

“For the sixth time,” Facciola wrote testily, using italics in a ruling this month, “this Court must be clear: if the government seizes data it knows is outside the scope of the warrant, it must either destroy the data or return it. It cannot simply keep it.”

The Justice Department is appealing these rulings and some have been overturned, but I can't help but thinking that this movement is an important sign for the future. More and more people, from Tea Party activists to Federal judges, are becoming nervous about government spying and demanding limits. If we keep up the pressure, eventually the arc will bend back toward freedom.

Words of Wisdom about Spying

What we’re saying is just because we can doesn’t mean we should.

--Richard Clarke, one of the authors of a new report on the practices of the NSA that recommends that we stop the mass storing of phone logs and other data