US domestic surveillance powers in limbo after Patriot Act provision expires

(By Deutsche Welle) What happens now that the US government’s key domestic surveillance program has expired? Privacy advocates and surveillance hawks worry about the consequences, but for different reasons. Spencer Kimball reports.

Section 215 of the Patriot Act has expired.

For the first time since the 2001 terrorist attacks in New York and Washington, the American government faces major limitations on its ability to sweep up and sift through the call records of all US residents in search of potential terror plots.

The US Senate held an emergency session on Sunday in a last-ditch attempt to break a week of political gridlock. There were three options on the table: Pass reforms under the USA Freedom Act, extend the Patriot Act unchanged or let Section 215 expire altogether.

Under the pressure of a midnight deadline, 77 senators supported moving the USA Freedom Act to a final vote. Some genuinely wanted to end the government’s bulk collection program. Others thought voting for the bill’s limitations would be better than letting Section 215 expire altogether.

But for one senator, the reforms didn’t go far enough. Rand Paul, the Republican libertarian presidential candidate from Kentucky, issued an objection. The procedural move delayed a final vote beyond Section 215’s expiration date.

“While the sunset of Section 215 definitely demonstrates the strength of and the desire for strong privacy reform, the fact is that this isn’t the only section of the Patriot Act that the government could use, and in fact has used, for bulk collection,” Jake Laperruque, with the Center for Democracy & Technology, told DW.

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Hey Patriot, what about Freedom? A brief history of US post-9/11 surveillance

(By Deutsche Welle) America responded to 9/11 by expanding surveillance through the Patriot Act. Since Edward Snowden’s revelations, the nation has largely recanted. The debate is now about a Freedom Act. Spencer Kimball reports.

Only one senator voted against the Patriot Act in the frantic weeks following the devastating terrorist attacks on New York and Washington DC.

“This is an enormous expansion of authority, under a law that provides only minimal judicial supervision,” Russ Feingold declared during his speech on the floor of Senate.

At the time, first responders were still retrieving more than 2,000 corpses from the rubble of the World Trade Center, which had been renamed “Ground Zero.” A network of Islamist radicals led by Osama bin Laden had launched the worst attack on American soil since the Japanese bombed Pearl Harbor.

Feingold, a Democrat from Wisconsin, was voted out of office in 2010. But in the fourteenth year post 9/11, the tide has turned in America.

Even the Patriot Act’s father now opposes the most controversial provision of the law. Representative Jim Sensenbrenner, a Republican from Wisconsin, claims he never intended for the now infamous Section 215 to permit the bulk collection of Americans’ call records.

“This program is illegal and based on a blatant misinterpretation of the law,” Sensenbrenner said after a federal appeals court had ruled against the program in early May.

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Pressure builds to crack down on NSA spying

(By Deutsche Welle) Not only is Obama’s advisory panel putting pressure on the president, but Congress is also considering two bills aimed at the NSA’s spying programs. Will they provide additional protections for non-US citizens?

Republican Representative Jim Sensenbrenner has introduced the USA Freedom Act, which would tighten restrictions on NSA metadata collection. The bill represents a major political reversal for the Wisconsin conservative. After the 9/11 attacks, Sensenbrenner played a key role in the passage of the PATRIOT Act, the law that served as the genesis of expanded counterterrorism powers for law enforcement and intelligence agencies.

“…Somewhere along the way, the balance between security and privacy was lost,” Sensenbrenner said in a recent press release. “It’s now time for the judiciary committees to again come together in a bipartisan fashion to ensure the law is properly interpreted, past abuses are not repeated and American liberties are protected.”

Meanwhile, the FISA Improvements Act has cleared the Senate Intelligence Committee in a 11-4 vote. According to one of the bill’s main sponsors, Senator Dianne Feinstein, the legislation would increase transparency and accountability but keep bulk metadata collection largely in place.

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DEA secretly uses NSA to prosecute crime

(By Deutsche Welle) Recent national security leaks have focused on NSA mass surveillance aimed at stopping acts of terrorism. But law enforcement may be secretly using information from intelligence agencies to prosecute organized crime.

A special unit of the Drug Enforcement Agency (DEA) has allegedly gleaned information from National Security Agency (NSA) surveillance programs to prosecute drug traffickers and organized crime, in a possible demonstration of growing cooperation between normal law enforcement and the US national security establishment.

According to reporting by the Reuters news agency, the DEA’s Special Operations Division (SOD) sanitizes classified information for use by prosecutors in the US judicial system. But investigators are told to cover up the SOD’s footprint on cases through a technique called “parallel reconstruction.” The technique fakes the origins of sensitive information, giving the impression that SOD tips come from a different source.

The practice has raised concern that defendants are being denied basic constitutional rights to review the evidence against them. Some civil libertarians are also worried that SOD activities demonstrate an expansion of the national security and intelligence agencies’ involvement in the normal criminal justice system.

According to William C. Banks, law enforcement agencies such as the DEA are allowed to use evidence obtained through the NSA’s PRISM surveillance program, so long as certain conditions are met. The practice is based on a lax interpretation of the US constitution’s fourth amendment, which normally protects against unreasonable search and seizure.

“The lower courts and the special FISA court have held that so long as the purpose of the surveillance is to collect foreign intelligence, then the protections of the fourth amendment are relaxed, because the intelligence collection itself does not anticipate the kind of criminal prosecution that would trigger more rigorous fourth amendment scrutiny,” Banks, director of the Institute for National Security and Counterterrorism at Syracuse University, told DW.

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Secret US court’s actions mired in controversy

(By Deutsche Welle) In the US, a special court decides in secret on government requests to monitor alleged terrorists. But some lawyers are concerned that post-9/11 reforms have undermined the judges’ ability to keep state power in check.

Although the Foreign Intelligence Surveillance Court was originally designed to buttress US citizens’ constitutional rights, the secret judicial body has repeatedly sanctioned a broad expansion of domestic snooping by the federal government in the past five years.

Traditionally, the court ruled on government applications that targeted specific individuals suspected of being foreign agents. But last month, former National Security Agency (NSA) contractor Edward Snowden revealed that domestic spying by the intelligence community has become increasingly indiscriminate.

Snowden leaked to the Guardian newspaper a secret court order, which had forced the telecom giant Verizon to open the phone records of its customers to the NSA. He later revealed the PRISM surveillance program, which collects and stores Internet communications in NSA databases in the hunt for terrorism suspects.

“The FISA court today spends a lot of time signing off on these general government surveillance programs, and for better or worse they’re not in a position to look at individual cases to decide whether there is individualized suspicion,” Stephen I. Vladeck, an expert on national security law with American University in Washington D.C., told DW.

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