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Warning! Spies Support Spy Reform

As the Trojan priest Laocoön warned when the Greeks showed up with a lovely wooden horse, “Beware of Greeks bearing gifts.”

Imagine if the CEO of Walmart called a press conference and announced he was in full support of a proposed regulation that was meant to apply directly to his business.

It would make you more than a bit suspicious, wouldn’t it?

After all, the Walmart CEO concerns himself primarily with furthering Walmart’s interests. So, it logically follows that either the proposed regulation won’t really have any impact on his business, or he thinks some benefits will accrue to Walmart that outweigh the impact of the regulation. The likelihood he would publicly support a regulation simply because he cares about the good of society falls somewhere between zero and nil.

With that in mind, the fact that NSA spy-chief James Clapper and Attorney General Eric Holder suddenly support the Senate version of the USA Freedom Act should raise massive red banners over Washington D.C.

Clapper and Holder sent a jointly signed letter to Senate Judiciary Committee Chairman Patrick Leahy earlier this week.

“The intelligence community believes that your bill preserves essential intelligence-community capabilities; and the Department of Justice and the Office of the Director of National Intelligence support your bill and believe that it is a reasonable compromise that enhances privacy and civil liberties and increases transparency,” the two officials wrote. “Overall, the bill’s significant reforms should provide the public greater confidence in our programs and the checks and balances in the system.”

Let’s be honest: if Clapper says this bill is good, that means it’s good for the spies.

I interpret this letter in one of two ways.  Either Clapper knows the bill won’t actually do anything to limit the NSA, or he knows that he can circumvent any limitations through other means.

Or perhaps some combination of those two position.

Evidence exists for both.

Even supporters of the USA Freedom Act admit that its provisions only address a small sliver of NSA activity. The legislation only deals with bulk of telephone data. Even under the best version of the proposed bill, Internet data and email collection would continue unhindered.

The bill would not end backdoor searches under section 702. It would only require the NSA and CIA to record and report the number of such searches to Congress, and it exempts the FBI from the reporting requirement completely. This becomes significant in light of a Privacy and Civil Liberties Oversight Board report on section 702.

[W]henever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment. With some frequency, FBI personnel will also query this data, including Section 702– acquired information, in the course of criminal investigations and assessments that are unrelated to national security efforts. {page 59, emphasis added}

Additionally, the USA Freedom Act does nothing to address bulk collection under the authority of Executive Order 12333.

Civil libertarians have also raised concerns about terms used in Leahy’s bill that could create loopholes. While cautiously supportive of the proposed legislation, EFF points this out.

The legislation may not completely end suspicionless surveillance. With respect to call detail records, it allows the NSA to get a second set of records (a second “hop”) with an undefined “direct connection” to the first specific selection term.  Because the “direct connection” standard is vague, the government may seek to construe that phrase to mean less than reasonable suspicion.

You can find two excellent discussions on terms in the bill HERE and HERE. And Marcie Wheeler argues that the very wording of the Clapper/Holder letter indicates the spymasters might be playing word-games.

But let’s put that aside and assume that the USA Freedom Act does exactly what Clapper claims, and actually “enhances privacy and civil liberties and increases transparency.”

Why in the world would the spy-chief publicly support such a thing?

Because he knows it will have no real impact on his operation.

In fact, it appears the CISA bill pending in Congress could actually open new doors for unwarranted and illegal spying.

Think about it: if Clapper and Holder know they will still be able to continue with business as usual, even with the passage of the USA Freedom Act, it makes perfect sense that they would come out and support it, even if it creates some small barriers to their  operation. The passage of a reform bill that doesn’t really do anything would represent a propaganda coup.

Clapper and his minions could proudly claim to support privacy, civil liberties and meaningful reform even as they continue violating your rights. It would placate the public and even some civil libertarians, lulling them into a false sense of security. And it would dent, or perhaps even end, further efforts to force substantial changes to the spy-state.

Some cheer this as great progress in the battle for privacy. I would hold the applause.

And while you’re at it, smash the wooden horse.

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