Good News! Dianne Feinstein Is Here To Reform The Section 215 Program By Making Everything Worse!

As Section 215 dies a rather noisy death (OR DOES IT? An emergency session convenes on May 31st, a day normally filled with the quiet emptiness of the extended Memorial Day holiday.), the defenders of the mostly-useless surveillance program are out in force, hoping to keep this part of the Patriot Act from expiring.

Mitch McConnell's hope for a no-questions-asked reauthorization is as dead as Section 215 (in its original form) appears to be. The USA Freedom Act stumbled in the Senate, falling three votes shy of being brought to the floor. Now, everyone seems to have a "fix" they'd like to offer. Unfortunately, some of those offering fixes aren't really interested in cutting back the metadata program.

Like Dianne Feinstein, for instance. About the only thing she's found contemptible about our nation's intelligence agencies is the CIA's proclivity for torturing detainees. And the longer she defends the NSA's intrusive programs, the more it gives off the impression that her main problem with the CIA's torture program is that it was ineffective.

She's offering her own "surveillance reform" bill in the wake of much legislative blood shedding, and much like her last "reform" offering, it does nothing of the sort.

[F]einstein’s bill, first reported by the Empty Wheel blog, rolls back a number of key provisions in the USA Freedom Act…

Rather than restrict the NSA (and the FBI, which benefits from the collection and issues the requests to the FISA Court in its name) to seeking metadata from service providers on a case-by-case basis, her bill introduces data retention requirements that amount to little more than simply relocating the metadata storage.

Feinstein’s current proposed bill – presented as an update to the original Foreign Intelligence Surveillance Act (Fisa) of 1978 – proposes an end to NSA bulk collection but contains various mandates for how phone companies would be required to store the data, something privacy advocates argue amounts to a re-creation of the NSA database in private hands.

Also missing are USA Freedom's stipulations aimed at greater transparency and oversight. Not only that, but her bill seems crafted to deter the next Edward Snowden from embarrassing the intelligence community's wholesale subversion of the Fourth Amendment.

Dianne Feinstein is the latest member of Congress to offer a non-compromise compromise to replace the compromise USA F-ReDux, this time with a bill that would:

• Impose a 2-year data mandate in some cases (which would affect Apple and Verizon most immediately)
• Extend the current dragnet order — which is already 89 days old — for an entire year
• Retain Richard Burr’s Section 215-specific Espionage Act imposing 10 year penalties on anyone who tells us what the intelligence community is really doing with the call records program
• Retain Richard Burr’s counter-productive amicus provision

Here's more detail on what Burr's "additions" actually mean, from Marcy Wheeler.

It appears to flip the amicus provision on its head, such that if Verizon or Apple challenged retention or any other part of the program, the FISC could provide a lawyer for the tech companies and tell that lawyer to fight for retention. And in the piece de la resistance, the bill creates its very own Espionage Act imposing 10 year prison terms for anyone who reveals precisely what’s happening in this expanded querying function at providers.

It is, in short, the forced-deputization of the nation’s communications providers to conduct EO 12333 spying on Americans within America.

These are the sort of "fixes" we can expect from staunch defenders of the NSA. They look like reforms, but they are surrounded by language that expands surveillance reach and government power. Tossing this bill down in the middle of legislative war over a program criticized heavily as both intrusive and useless is nothing more than Feinstein hoping to leverage the weight of the NSA's supposed oversight to push a few legislators off the "undecided" fence and towards ensuring the uninterrupted harvesting of "tangible things."

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