It is the season of gifting and boy-oh-buddy did Congress ever give the NSA a free pass for the gift of spying! Government snoops already have the Patriot Act, FISA and Executive Order 12333, but any electronic surveillance under those that might legally be argued as unconstitutional is now legal, thanks to Intelligence Authorization Act for 2015 (H.R. 4681).
Last Wednesday, while mainstream media was primarily focused on the newly released CIA torture report (pdf), in what has been dubbed a “sneak attack” with no debate, Congress “rushed” the Intelligence Authorization Act for FY 2015 to the floor for a voice vote. After looking over the bill for “unusual language,” Rep. Justin Amash found “one of the most egregious sections of law I've encountered during my time as a representative: It grants the executive branch virtually unlimited access to the communications of every American.”
Amash tried to rally other representatives to vote no, alerting them to “a troubling new provision that for the first time statutorily authorizes spying on U.S. citizens without legal process.” The bill included a new Section 309 that “authorizes ‘the acquisition, retention, and dissemination’ of nonpublic communications, including those to and from U.S. persons.”
According to Rep. Justin Amash:
To be clear, Sec. 309 provides the first statutory authority for the acquisition, retention, and dissemination of U.S. persons’ private communications obtained without legal process such as a court order or a subpoena. The administration currently may conduct such surveillance under a claim of executive authority, such as E.O. 12333. However, Congress never has approved of using executive authority in that way to capture and use Americans’ private telephone records, electronic communications, or cloud data.
Amash called for a recorded roll call vote, but the Intelligence Authorization passed 325-100.
In a statement issued yesterday, the EFF said:
Congress showed that it is willing to tackle the mass spying conducted under EO 12333 by inserting Section 309 into the bill. It’s one of the first times Congress has publicly stood up to spying covered by the Executive Order. It's a good sign, but it doesn’t go nearly far enough. The bill must usher in more vigilant—and public—Congressional oversight of EO 12333 and other NSA spying activities.
Unfortunately, the procedures in Section 309 reflect the current status quo: the over-collection, over-retention, and over-sharing of innocent users' communications. The procedures in Section 309 try to protect the communications of non-targets, but include massive loopholes. These loopholes do not grant any new authority, but they do allow the President to continue the egregious retention and sharing of innocent users' communication, which is a practice that must be stopped.
“Specifics of the intelligence authorization are limited because much of it is classified,” The Hill pointed out. “It authorizes activities and funding for the CIA, National Security Agency (NSA) and Director of National Intelligence (DNI).”
Although the bill says the feds can’t hold onto “incidentally acquired communications” for more than five years, there are numerous provisions for extending the data storage period. And don’t be fooled by the wording of “incidentally acquired communications” because that basically covers any communication that has been logged. It’s not called “incidental” in the definition because it really applies to a mind-blowing amount of terabytes, more likely petabytes. According to the bill, “The term covered communication means any nonpublic telephone or electronic communication acquired without the consent of a person who is a party to the communication, including communications in electronic storage.”
The bill that basically makes illegal spying legal is headed for President Obama’s desk. There is a petition asking him to veto the “horrific encroachment on the privacy of the American people. It authorizes the executive branch to acquire and retain communication information on a whim and without any due process…Don't let our fear of terrorism rot away the constitution.”
The petition currently has 8,222 signatures, but still needs 91,778 signatures for a total of 100,000 by January 10, 2015. Unless you are cool with the executive branch having “virtually unlimited access to the communications of every American,” then please do sign the petition on We The People asking for a veto. If it’s not vetoed, and the EFF, ACLU or anyone else tries a legal fight over unconstitutional surveillance, the spying will be considered legal; the U.S. "home of the free" will truly be the Surveillance Society.