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Common Cents


Ralph Murphy

(5/2015) The USA Patriot Act signed by President George W. Bush in 2001,is due to expire on June 1st. This will also curtail the effective use of the Intelligence Reform and Prevention Act of 2004 that was designed to counter terrorism in the United States. Anticipation of the possible rejection by Congress of the post - 9/11 bill led to last year's attempt to redesign and package it as the USA Freedom Act has met stiff resistance and attempts to revise. The Freedom Act would legally authorize private phone companies such as AT&T and Verizon to record and disseminate private calls with a provision that they provide that data to the government - more specifically to the National Security Agency (NSA).

The current dilemma reveals the close working relationship the private sector has with the government and its apparent ability to circumvent highly contentious restrictions as applied to the Federal sector. Phone companies routinely hold information for up to 18 months and the government wants access to it. In contention at present is NSA's "bulk collection" of metadata which records who calls whom, but not the recorded conversations. The mega data is about as contentious as a phone billing statement and doesn't address the practice of unregulated recordings and arbitrary dissemination of phone calls now performed by the private companies.

NSA has been drawn into the international press and legal debate for its ability to conduct wiretaps and access private data in the defense of national security. Other agencies, to include the Federal Bureau of Investigation (FBI), are also involved, but NSA has gotten most of the negative press following public disclosures by former contractor Edward Snowden who allegedly downloaded reams of classified data to buttress his claims. He also is reported to have extra legally provided this information to foreign powers. Snowden is Russia-based, but appears able to travel having recently surfaced in Canada and is dealing with US authorities for a return to America.

There is current bi partisan consensus in Washington on the need for a coherent national security policy, but as the 1 June Patriot Act expiration deadline approaches- one is not available. There is also admittedly no backup Plan B. Senator Dianne Feinstein commented that the "security of the nation is at stake". Republicans agree but don't want a "blanket restructuring" of the intelligence community.

The Patriot Act was introduced by Representative Jim Sensenbrenner following the 9/11 terrorist events in New York and Washington, DC. It was offered as Article 3162 in October of 2001. Only 66 Congressmen opposed the measure that was sent to the Senate and was confirmed by a 98 to 1 vote. President Bush signed the measure into law in October 2001.

The act "expanded access of (government agencies) to business, library and office financial records. The actís opponents noted that the measure provided no time constraint on retention of detained illegal immigrants, and was too broad in law enforcement powers. Such powers as the use of national security "letters" permitting phone taps, email and financial records access without a court order. This authority was granted to a variety of federal agencies, but NSA gained the greatest notoriety in its actual application.

The measure was evaluated and slightly restructured in 2005 with "Sunset provisions" lapsing and not significantly altering the law. There was a degree of concern the bill allowed the Executive Branch too much power that had led to a 2004 measure entitled the Intelligence Reform and Terrorism Prevention Act. With it, Congress had sought to control the intelligence role- especially domestic, while allowing it "to reform the intelligence commitments and related activities of the legislature as well as (unspecified) other purposes." It amended the National Security Act of 1947 that also played into the Patriot Act, and created a Civil Liberties Protection Officer who would report on the agencies activities to open sources public as well as government liaison.

The existing technology of mass computer surveillance capability implies to the interested observer a capacity to perform the task of recording and monitoring. NSA's actions were actually broached well before Snowden with one open source claiming the agency had the capacity to collect enough information every day to fill the Library of Congress. The Legislature appears to have been left out of the information process despite the oversight committees. Even Congressman Sensenbrenner who introduced the original Patriot Act in 2001, thought it needed a radical review. That was implemented, and in October 2013 was offered as the USA Freedom Act.

In the bill, companies such as AT&T and Verizon would have to "submit to the general public the scope of government requests for consumer data". If it's not approved they can theoretically use it themselves! Surprisingly, the bill passed the House on May 22, 2014 by a vote of 301-121. Democratic Senator Patrick Leahy criticized the House bill and was joined by Senator Ron Wyden who was concerned that "mass surveillance" would continue. The populist attacks on NSA appeared "fair game", but no one was willing to directly question the phone companies ability to go far further and largely unregulated in its actions.

The Freedom Act was shelved by the Democrat-controlled Senate last November after falling two votes shy of a 60 vote acceptance into law. It is still being debated as the Patriot Act component is set to expire on June 1st. Senate leaders seek an extension to December 2017 to allow the matter to be further sorted out. While they will probably get the delay- NSA's bulk, data collection of phone calls sourcing and receipt is really "tame" without a recorded text feature. Phone companies should be allowed to provide that, but not allowed to keep or maintain personal records. Information regarding terrorist threats being monitored under court order, could be withheld from the government by the phone companies- further threatening and undermining national security. Be careful with your electronic devices, as it's possible someone is eavesdropping no matter what the law.

Ralph Murphy is a former member of the CIA Headquarters Staff in Langley, VA.

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