The Snowden Blindfold Act Congress Moves to Weaken Antiterror Surveillance While France Expands It.
http://www.wsj.com/articles/the-snowden-blindfold-act-1430953633
At least one of the gunmen who shot up a Texas free speech event on Sunday was known to the FBI as a potentially violent radical and was convicted in 2011 on a terror-related charge. The Islamic State claimed credit for this domestic attack, albeit an unproven connection. So it is strange that Congress is moving to weaken U.S. surveillance defenses against the likes of shooters Elton Simpson and Nadir Soofi.
Two years after the leaks from Edward Snowden’s stolen dossier, a liberal-conservative coalition is close to passing a bill that would curtail the programs the National Security Agency has employed in some form for two decades. Adding to this political strangeness, France of all places is on the verge of modernizing and expanding its own surveillance capabilities for the era of burner cell phones, encrypted emails and mass online jihadist propaganda.
The Patriot Act expires at the end of the month, and a fragile House-negotiated compromise on reauthorization would end NSA sweeps of telephone metadata—the date, time stamps and duration of calls. The content of those calls isn’t collected without a separate warrant. The measure also includes mostly cosmetic nuisance changes such as a panel of outside amicus lawyers to advise the secret Foreign Intelligence Surveillance Court (FISC) that supervises and approves NSA activities.
But the metadata eulogies are premature before what ought to be a sturdy debate in the Senate. Majority Leader Mitch McConnell introduced a “clean” extension of current law as a base bill that the chamber will open to amendments later this month. The Senate narrowly defeated a bill similar to the House measure last year, and we hope it does so again.
Senators should think carefully about the value of metadata collection, and not only because the technical details of the House bill are still being parsed by security experts. In January 2014, President Obama tried to suppress the Snowden wildfire by pronouncing the end of “bulk metadata program as it currently exists,” via executive order. Civil libertarians rejoiced. Yet NSA transparency disclosures show the FISC court approved 170 search applications of the database in the same calendar year.
Presumably the NSA continued to analyze metadata—despite pro forma White House opposition—because these details provide intelligence that is useful for uncovering plots, preventing attacks and otherwise safeguarding the country. The NSA must demonstrate to FISC judges a “reasonable, articulable suspicion” to gain approval for each “selector,” or search query.
In other words, there is little invasion of privacy because the searches are narrow. The NSA isn’t even using automated algorithms to reveal suspicious patterns the way that credit card companies and retailers mine consumer data every day. The NSA’s 170 metadata searches involved merely 160 foreign targets and 227 known or presumed U.S. citizens.
There is still no evidence that the data have been abused. The Supreme Court has held since Smith v. Maryland in 1979 that the Constitution provides no guarantee of metadata privacy. Domestic police and prosecutors in routine criminal investigations enjoy more warrantless access to metadata well beyond even the NSA status quo.
The House bill pretends not to undermine intelligence collection by requiring telecom and tech companies to retain metadata business records. The NSA could then request these documents with FISC consent or unilaterally in an emergency. But assembling this information retroactively may be too slow in a true crisis—in return for little or no added privacy protection. After the hacking breaches at Sony, Target and a string of health insurers, Americans may reasonably wonder if their data are safer fragmented across many private third-party repositories.
The Members of Congress who know the most about intelligence know all this, but they say that ending metadata collection is the price of blocking a political stampede that might also kill more important provisions such as Section 702 that authorizes foreign-to-foreign wiretaps. That might have been true immediately after the Snowden heist, but it may not be true after the attacks on Charlie Hebdo and in Texas by Islamic State-inspired jihadists.
Those shootings show that surveillance is more crucial than ever to prevent mass murder on U.S. soil by homegrown or foreign radicals. The French understand this, which is why they are widening their intelligence reach. No prevention can ever be perfect. But the House measure is a deliberate effort to know less and blind U.S. spooks to potentially relevant information. This self-imposed fog may be politically satisfying now, but deadly if there is another attack.
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