An important EFF article.
https://www.eff.org/deeplinks/2015/05/oversight-report-fbis-use-patriot-act-highlights-need-intelligence-reform-crucialThe Justice Department’s Office of the Inspector General (OIG) yesterday released another report on the Federal Bureau of Investigation’s use of Section 215 of the Patriot Act between 2007 and 2009. The report was long delayed due to declassification and redaction issues, but the timing is appropriate considering that the Senate is spending the waning hours of its legislative session considering the impending expiration of Section 215.
That’s because the OIG report heightens the case for meaningful reform of the intelligence community by undermining many of the flimsy defenses offered by defenders of the status quo. Above all, the report demonstrates that secrecy and lack of oversight in the administration of surveillance laws is perhaps as significant as outright misuse.
Section 215 is most famously the authority that the National Security Agency claims allows it to conduct mass collection of Americans’ telephone records. A federal appeals court recently ruled that this interpretation was “unprecedented and unwarranted” and that the NSA’s program was illegal. However, the FBI is actually the agency that administers the law, presenting applications for the collection of information to the secretive Foreign Intelligence Surveillance Court (FISC) on behalf of NSA, as well as the FBI itself.
When the Patriot Act was reauthorized in 2005, Congress sought to address some concerns about Section 215 by mandating review by the OIG. The new report is the third to discuss the FBI’s use of Section 215, and it revisits some of the problems uncovered by the previous reports. Most egregiously, the FBI took seven years to obey a law intended to protect Americans’ privacy. The 2005 reauthorization required the FBI to adopt particularized “minimization procedures” to limit the amount of private information retained and disseminated by the FBI under Section 215 by no later than March 2006. But the FBI didn’t do so until March 2013. During that time, of course, the FBI was continually assisting the NSA by filing applications for ongoing mass collection of telephone records, using an illegal interpretation of Section 215.
But the new report also shows that government’s unauthorized interpretation of the “relevance” provision in Section 215 wasn’t the only strained statutory reading of the law. During its seven years of foot-dragging over Section 215 minimization procedures, the FBI instead used a set of “Interim Procedures” that incorporated existing FBI National Security Investigations (NSI) Guidelines and “construed” them to meet the new requirements of the 2005 reauthorization. But “FBI agents were already required to comply with the NSI Guidelines in their entirety,” so “the Interim Procedures did not add any new requirements.” In other words, the FBI unilaterally decided it could meet a new duty imposed by Congress by declaring its preexisting duty was enough.
One has to ask just what sort of justice system relies on secret interpretations that turn out to be both wrong and illegal and why no one is sent to prison for what amounts to a conspiracy to bypass both the authority of govt and the constitution, treason is still a good term for such activities.
