It just wasn’t a very good week for phones or for freedom.
Last week’s obscene joke of a bill coughed up by a Congress [1] wheezing with immobilizing congestion morphed an already compromised law about data collection into a green light to spy on everyone.
The bill passed the House last Thursday and is now heading to the Senate where the chances of getting a better bill are pretty slim. The President has endorsed this House bill; after all, it endorses his policies.
Sponsored by Wisconsin Republican Jim Sensenbrenner (the author of the Patriot Act), the ironically named USA Freedom Act’s most salient feature is that, contrary to the bluffery about how it’s going to rein in the government on phone surveillance, it has now made massive phone data capture legal and public. The NSA and related agencies under this supposed “reform” bill would gain full authority to collect all information from phone companies and, what’s more, the bill mandates that the companies hold on to that information (apparently permanently).
The House obviously caved. Not that the first edition of this bill was very good to start with. The government obviously is not going to limit its own power. But the bill as passed by the House is much weaker and, in a “blink if you don’t believe it” moment, many Democratic Congressional leaders are actually congratulating themselves. Even John Conyers (D-Mich.), Detroit’s traditionally progressive Democrat, supported this bill: “We stand poised to end domestic bulk collection across the board,” he said not making clear where he was standing or when domestic bulk collection was going to end. It certainly didn’t end with this bill.
On the other hand, a few Congresspeople did express concern, including Sensenbrenner himself, who called the new law “an abuse” of the Patriot Act. One is left wondering what the Wisconsin lawmaker expected from the draconian nightmare he authored.
Ooopsss! Should Sensenbrenner Rethink His Patriot Act?
While that little humorless comedy was playing out, we got another glimpse of how phone surveillance is being used. Wikileaks revealed that the NSA has been collecting phone data on virtually all phones in Afghanistan. This comes on the heels of revelations a few days earlier about such mass phone call collection in the Bahamas, Mexico, Kenya and the Philippines. The punch-line to this gross violation of people’s rights is that the bill passed last week doesn’t even mention international phone call capture — that’s still left completely unregulated.
There’s a lot wrong with the bill passed through the House [2] and that’s obvious from the scenario of “permitted activity” that the bill is based on. Essentially, phone companies have to hold records for an unspecified period of time. The government can’t collect them indiscriminately as it had previously done. But that “reform” is meaningless because government agencies can acquire data from any phone company by using either a specific court order through the Foreign Intelligence Surveillance Act (FISA) court (the NSA’s rubber stamp in robes) based on “selectors,” or on the basis of an emergency situation defined according to NSA criteria.
The problem lies in the definition of “selectors” — the filters used to determine whether or not specific information is captured or requested. Previously, the NSA would capture the phone data and then run it through its “selectors” to determine what gets pulled or retained. Now, they can either ask the telephone company to run the selectors or go in and run it themselves. Before doing that, the spy agency must present the selection set to the FISA court. Since the court is going to approve anything NSA requests (it has rejected less than one percent of all requests up to now), the definition of the selectors is important because they are the only element of restraint in the entire collection process.
The bill requires that a selector be “a discrete term, such as a term specifically identifying a person, entity, account, address, or device”. How much is included under that umbrella? It’s probably better to ask what isn’t included. With that list, under this law, the NSA is allowed to access the records of almost all Americans.
But we still won’t know how many records have been accessed because this version strikes provisions in the original draft that would have forced phone companies to tell us how many records they’ve had to release to the NSA. Under the just-passed version of the bill, if the company wants to tell us, it can’t until six months after it has received a request. If it’s a start-up, it can’t do a report for two years.
In short, the law puts an automatic gag order on phone companies in this country.
In the guise of protecting our privacy or limiting surveillance power, the bill also continues to allow “about searches” in which an international conversation is scanned for names of people who then become targets of investigation. That particularly nasty practice makes any provisions protecting Americans useless. If a person in another country mentions your name, you are a legitimate target. In the original bill, any “reverse targeting” of this type was outlawed, but that protective provision has been eliminated from the version the House just passed.
This type of “foreign connection” is looming more important with recent revelations about international phone capture. This week, several publications released the information [3] about the complete capture of phone data in several countries but refused to name one of them (for national security reasons). Wikileaks, in response to that weak-kneed journalism, then named it: Afghanistan. (Even Glenn Greenwald, who broke the international capture story based upon some of NSA whistleblower Edward Snowden’s documents, honored a government request not to name Afghanistan.)
While fans of spy-craft will defend this practice of massive spying on international phones, under the curious but oft-repeated theory that our rights only pertain to people in this country, this sweeping capture program goes way beyond any traditional spying. In fact, phone data capture bears no resemblance to espionage or traditional spying (which is selective in its targeting) and is much closer to the activities of a police state. When done to another country, it’s a lot like trying to police the other country: a virtual act of virtual war.
It’s grotesque to consider that, after over 12 years of war waged on Afghanistan, our government is now waging a war of information capture against its people. But that revelation is proof of what many have been saying about this country’s intentions in that beleaguered and battered nation: we have absolutely no intention of pulling out of Afghanistan, no matter what President Obama says.
In fact, the phone data captured targets not only Afghans but phone calls from U.S. diplomatic and military personnel. In short, the NSA is spying on the military and the diplomatic core, including even the CIA. This is truly the stuff of a police state.
The entire phone capture controversy underscores another important political fact: the cell phone is now the most popular access to the Internet among people in developing countries and among young people and people of color in this country. These are also the people who are going to provide the sharpest and most aggressive challenges to the world’s governments in the coming years of deepening crisis. If our government wants to control anybody, it’s these people. The USA Freedom Act demonstrates one way they are planning to do that.