The (Likely) New Status Quo

 

shutterstock_90596905As you’ve probably heard, three provisions of the USA Patriot Act expired over the weekend, including the controversial bulk-collection of telephone metadata that the courts found wanting last month. In its place, Congress seems likely to pass some version of the USA Freedom Act,* which — among other things — stops the NSA from collecting bulk data but requires telephone carriers to store it on their behalf. In today’s The Wall Street Journal, the editors bring up some legitimate objections to the new legislation, concluding as follows:

So per­haps Sen­ate pas­sage of the House bill is the only re­al­is­tic path to pre­vent even greater harm to U.S. secu­rity. But please spare us the civil-lib­er­tar­ian triumphal­ism. The real story this week is that Con­gress is harm­ing and maybe end­ing an im­por­tant de­fense against ter­ror­ism, while pretend­ing not to.

Triumphalism is neither healthy nor laudatory and the new legislation is hardly beyond reproach, either from a philosophical or a practical perspective. The new process adds layers that will make accountability more difficult when failures occur, and seems to present a logistical nightmare from a data-management perspective. It is at least conceivable that important intelligence might slip through under the new system that would previously have been detected.

On the other hand, IS and al-Qaeda have little reason to do whatever the jihadist equivalent is of popping open a bottle of champagne. As I understand it, our intelligence services have essentially no legal restrictions on their ability to mine foreign sources of data — meta or otherwise — and bulk collection is only a small section of what they do. Moreover, active investigations are grandfathered in, and these programs appear to have played a relatively minor role in disrupting plots post 9/11.

What we’re seeing here is a slight rebalancing of Americans’ conflicting desires for security and liberty. As such, it’s most likely less harmful than its critics maintain — and is less of a victory for privacy than its proponents would have you believe —but it’s likely closer to what Americans desire.  The wisdom, foolishness, or innocuousness of our decision will only be borne out in time, but it will be on our shoulders, as well it should be.

* I herby propose an amendment to the US Constitution to the effect that co-sponsoring legislation with such transparently self-congratulatory, who-could-be-against-that titles be classified as a form of treason.

Published in Foreign Policy, General
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  1. user_554634 Moderator
    user_554634
    @MikeRapkoch

    Tom:

    We should get a Kickstarter campaign underway to pass the proposed amendment.

    • #1
  2. user_653084 Inactive
    user_653084
    @SalvatorePadula

    I actually oppose any title which goes beyond stating the subject matter.

    • #2
  3. user_653084 Inactive
    user_653084
    @SalvatorePadula

    I have a hard time understanding why the replacement of section 215 of the Patriot Act with the USA Freedom Act is seen as some sort of a victory for individual privacy and liberty. Yes, there’s some value in the symbolism of the switch, but the differences between the two laws are much more cosmetic than substantive.

    • #3
  4. Ryan M Member
    Ryan M
    @RyanM

    I will take that amendment.

    Now, I may be interpreting this wrong, but it almost seemed as if you said “government stops spying, but mandates that phone companies do it for them.”  Not that they aren’t, already.  And I don’t mean to sound like a conspiracy theorist, but it almost seems like the government could simply pay Google some contract money and get all the information they’ve ever wanted to know about virtually everyone.

    • #4
  5. Ricochet Member
    Ricochet
    @

    http://therightscoop.com/mark-levin-why-are-we-trashing-rand-paul-for-raising-honest-questions-the-federal-government/

    What he said.

    Mark is a very strong advocate for national security. He’s no libertarian. But he sees through the Republican phonies like Lindsay Graham and the WSJ neo-cons.

    Good post.

    • #5
  6. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Tom Meyer, Ed.: What we’re seeing here is a slight rebalancing of Americans’ conflicting desires for security and liberty. As such, it’s most likely less harmful than its critics maintain — and is less of a victory for privacy than its proponents would have you believe —but it’s likely closer to what Americans desire.

    Incremental, like most good reforms.

    • #6
  7. user_331141 Inactive
    user_331141
    @JamieLockett

    Salvatore Padula:I have a hard time understanding why the replacement of section 215 of the Patriot Act with the USA Freedom Act is seen as some sort of a victory for individual privacy and liberty. Yes, there’s some value in the symbolism of the switch, but the differences between the two laws are much more cosmetic than substantive.

    This is especially true given the fact that data passing through third parties servers is considered “public” and thus not subject to 4th amendment protections. (Or so my attorney wife explains it to me)

    • #7
  8. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Salvatore Padula:I have a hard time understanding why the replacement of section 215 of the Patriot Act with the USA Freedom Act is seen as some sort of a victory for individual privacy and liberty. Yes, there’s some value in the symbolism of the switch, but the differences between the two laws are much more cosmetic than substantive.

    I think it’s a little more than that; specifically, that we’ll have more to rely on than the NSA’s good word that they’re only looking at the database when allowed.

    Ryan M:Now, I may be interpreting this wrong, but it almost seemed as if you said “government stops spying, but mandates that phone companies do it for them.”

    I certainly didn’t mean that; as I understand it, the phone companies will be required to store their metadata (for so many years) in a format easily accessed by the NSA and collated with other companies’.

    Again, I’m actually somewhat skeptical that this is particularly workable as-envisioned as a bulk data program designed to catch and stop terrorists, but I also don’t think that’s a terribly effective way to go about catching and stopping terrorists.

    • #8
  9. Pilli Inactive
    Pilli
    @Pilli

    So, I have a pig.  I can keep it in my pigpen or I can force my neighbor to keep it in his pigpen.  It’s still my pig.

    • #9
  10. Fricosis Guy Listener
    Fricosis Guy
    @FricosisGuy

    I’m not sure that proponents of a straight 215 extension understand that all sides don’t believe the government when it comes to homeland security. Why would they? This is the government with an IRS that went after political enemies of the current administration and a TSA that failed 95 percent of intrusion tests.

    The presumption is that they’ll eventually misuse this metadata.

    • #10
  11. Ricochet Inactive
    Ricochet
    @RobertMcReynolds

    The entire premise to this piece is wrong on so many levels.  For starters Section 215 worked BECAUSE tele-comm companies store the metadata of their customers already.  The companies own the metadata because they own the infrastructure that allows these services to work.  What was being debated was whether or not the federal government could apply a general warrant in perpetuity to have access to the information as opposed to issue specific warrants every time they wanted the metadata of a suspected number linked to terrorist activity.  This IS what the federal government should be doing, not blanket coverage of all Americans simply because they own a cell-phone.

    Just six months ago I worked in an office that dealt with this type of thing and it is really easy to get specific numbers if the federal government is really interested in finding out why American numbers are connected with intelligence targets overseas–terror related or not.  They do not need this program to conduct counterterrorism operations.  The proponents of this program are really stepping close to that line of outright lying to the American people in the way they frame their arguments.

    • #11
  12. Tuck Inactive
    Tuck
    @Tuck

    Tom Meyer, Ed.: As you’ve probably heard, three provisions of the USA Patriot Act expired over the weekend, including the controversial bulk-collection of telephone metadata that the courts found wanting last month

    The problem is, again, that the telephone metadata program was not authorized by the Patriot Act.

    It was not authorized by any law.

    “The merits of bulk collection of telephony metadata entered the debate much later. In 2013, the first Snowden disclosures revealed that the Foreign Intelligence Surveillance Court (FISC) had secretly approved collection of bulk telephony metadata. As we learned, the FISC had used one section of the Patriot Act, Section 215, as the legal justification for that secret decision. But as the Second Circuit recognized just last month, that interpretation was based on a serious misreading of the Patriot Act language.”

    The degree of mendacity coming out of the so-called “national security conservatives” on this topic is breathtaking.

    Alleged conservatives who claim to be upset by court-invented “law” like Roe v. Wade are perfectly happy to take their winnings when the court invents in their favor.  They’re no more principled on this then the Left Progressives.

    • #12
  13. Klaatu Inactive
    Klaatu
    @Klaatu

    They do not need this program to conduct counterterrorism operations. The proponents of this program are really stepping close to that line of outright lying to the American people in the way they frame their arguments.

    The Directors of the NSA, Central Intelligence, and National Intelligence (actual intelligence professionals) disagree with you.

    • #13
  14. Klaatu Inactive
    Klaatu
    @Klaatu

    The problem is, again, that the telephone metadata program was not authorized by the Patriot Act.

    So said a couple of unelected lawyers in robes.

    • #14
  15. Ricochet Inactive
    Ricochet
    @RobertMcReynolds

    Klaatu:They do not need this program to conduct counterterrorism operations.The proponents of this program are really stepping close to that line of outright lying to the American people in the way they frame their arguments.

    The Directors of the NSA, Central Intelligence, and National Intelligence (actual intelligence professionals) disagree with you.

    Yes, and they would be the ones “outright lying to the American people.”

    • #15
  16. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Klaatu:The problem is, again, that the telephone metadata program was not authorized by the Patriot Act.

    So said a couple of unelected lawyers in robes.

    Well, yes; that’s who judges are and what they’re supposed to do.

    Now, obviously, just because a court rules on something doesn’t automatically make their decision inviolable; if it did, then there’d be no reason to object to Dredd Scott, Roe, or Casey. But the point of having a judiciary is to adjudicate disputes like this and to do so with some distance from democracy.

    • #16
  17. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Klaatu:They do not need this program to conduct counterterrorism operations.

    The Directors of the NSA, Central Intelligence, and National Intelligence (actual intelligence professionals) disagree with you.

    But that really isn’t surprising, is it? Given their responsibilities, our intelligence agencies would be negligent if they weren’t trying to push the boundaries of what’s acceptable for them to do in the name of national security.

    This isn’t a perfect analogy, but fire marshals are somewhat infamous for making recommendations that are sound from a safety perspective, but either unaffordable or otherwise impracticable. Sure, they’d reduce the risk of fire, but they’d ruin the school, or office, or whatever.

    That doesn’t mean the marshall’s advise is bad or should be ignored: indeed, you might be legally liable if you ignore it. But that doesn’t mean his recommendations should be determinative: they’re — understandably, perhaps rightfully — myopic because of the narrow responsibilities and goals of his profession.

    • #17
  18. Ricochet Member
    Ricochet
    @

    Klaatu:They do not need this program to conduct counterterrorism operations.The proponents of this program are really stepping close to that line of outright lying to the American people in the way they frame their arguments.

    The Directors of the NSA, Central Intelligence, and National Intelligence (actual intelligence professionals) disagree with you.

    That’s right Klaatu, listen to your overlords.

    Question: Do you actually believe in Democracy, checks and balances, oversight and transparency? You know, like, the Constitution? It’s okay, you don’t have to. I will actually think better of you if you just come out and say it.

    • #18
  19. Tuck Inactive
    Tuck
    @Tuck

    Tom Meyer, Ed.:

    …But that doesn’t mean his recommendations should be determinative: they’re – understandably, perhaps rightfully – myopic because of the narrow responsibilities and goals of his profession.

    And should be judged by effectiveness, among other things.

    Just remember, the official analysis of the NSA’s metadata phone collection project found it to be less effective than even the TSA’s efforts.

    EXCLUSIVE: Undercover DHS Tests Find Security Failures at US Airports

    The NSA seems to be part of the “security theatre”.

    • #19
  20. Klaatu Inactive
    Klaatu
    @Klaatu

    Yes, and they would be the ones “outright lying to the American people.”

    Except you are not in a position to whether they are lying or not. Your accusation is completely unsubstantiated.

    • #20
  21. Klaatu Inactive
    Klaatu
    @Klaatu

    Now, obviously, just because a court rules on something doesn’t automatically make their decision inviolable…

    Exactly! The opinion of a couple of 2d circuit court judges is just that, an opinion. There were any number of other federal judges who opined otherwise.

    • #21
  22. Klaatu Inactive
    Klaatu
    @Klaatu

    But that really isn’t surprising, is it? Given their responsibilities, our intelligence agencies would be negligent if they weren’t trying to push the boundaries of what’s acceptable for them to do in the name of national security.

    Robert was making an assessment on the value of the program from an intelligence perspective. He was not balancing that against other factors.

    • #22
  23. Tom Meyer Contributor
    Tom Meyer
    @tommeyer

    Klaatu:Now, obviously, just because a court rules on something doesn’t automatically make their decision inviolable…

    Exactly!The opinion of a couple of 2d circuit court judges is just that, an opinion.There were any number of other federal judges who opined otherwise.

    Okay, so we’re agreed.

    Would you say that Smith v. Maryland is also nothing more than the musings of “unelected lawyers in robes”?

    • #23
  24. Ricochet Member
    Ricochet
    @

    Klaatu:Now, obviously, just because a court rules on something doesn’t automatically make their decision inviolable…

    Exactly!The opinion of a couple of 2d circuit court judges is just that, an opinion.There were any number of other federal judges who opined otherwise.

    Klaatu, I now believe, must mean Master of the Out-of-Context Quote. No need to have a discussion, just cherry-pick whatever you agree or disagree with and pretend you have a point! How magical!

    • #24
  25. Klaatu Inactive
    Klaatu
    @Klaatu

    Question: Do you actually believe in Democracy, checks and balances, oversight and transparency? You know, like, the Constitution? It’s okay, you don’t have to. I will actually think better of you if you just come out and say it.

    No, I’m a (small r) republican. I am not a fan of democracy. The Constitution set up a republic not a democracy.

    • #25
  26. Klaatu Inactive
    Klaatu
    @Klaatu

    Would you say that Smith v. Maryland is also nothing more than the musings of “unelected lawyers in robes”?

    Of course.

    • #26
  27. Ricochet Member
    Ricochet
    @

    Klaatu:Question: Do you actually believe in Democracy, checks and balances, oversight and transparency? You know, like, the Constitution? It’s okay, you don’t have to. I will actually think better of you if you just come out and say it.

    No, I’m a (small r) republican.I am not a fan of democracy.The Constitution set up a republic not a democracy.

    Nitpicking. You believe in the Constitution as referenced above, so then why no regard for checks and balances in your comments? I.E. The intelligence folks are professionals and know what we need to do to keep us safe.

    • #27
  28. Klaatu Inactive
    Klaatu
    @Klaatu

    Nitpicking. You believe in the Constitution as referenced above, so then why no regard for checks and balances in your comments? I.E. The intelligence folks are professionals and know what we need to do to keep us safe.

    Hardly a nitpick, especially in the opinion of the me who wrote the Constitution.

    What in my statement suggests a lack of belief in the Constituion? Do you disagree that the professionals charged with maintaining our national security are in better position to understand what is required to do so than Robert?

    • #28
  29. Ricochet Member
    Ricochet
    @

    Klaatu:Nitpicking. You believe in the Constitution as referenced above, so then why no regard for checks and balances in your comments? I.E. The intelligence folks are professionals and know what we need to do to keep us safe.

    Hardly a nitpick, especially in the opinion of the me who wrote the Constitution.

    What in my statement suggests a lack of belief in the Constituion?Do you disagree that the professionals charged with maintaining our national security are in better position to understand what is required to do so than Robert?

    Nitpicking because we live in a Democratic Republic commonly referred to as a Democracy. This is not some scholarly forum where we must use footnotes and citations. You know that I know it’s also a Republic because of other conversations we have had.

    It wasn’t the crux of my comment either, was it? It was about the Constitution and checks and balances, which you conveniently ignored. So trying to call me out on that minor point was nitpicking plain and simple.

    Then you ask me an irrelevant question, as though that’s the subject.  The issue keeemosabe, is whether we are allowed to question and have oversight through our Democratically elected representatives, of what exactly they are doing and whether these things fall within the bounds of the Bill of Rights. You seem to be claiming, by your comments, that we don’t.

    • #29
  30. Klaatu Inactive
    Klaatu
    @Klaatu

    The issue keeemosabe, is whether we are allowed to question and have oversight through our Democratically elected representatives, of what exactly they are doing and whether these things fall within the bounds of the Bill of Rights. You seem to be claiming, by your comments, that we don’t.

    Is there a reason you feel the need to make excuses for your mistakes and misstatement?

    Nothing in my comment remotely suggests that.

    • #30
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