On June 1, less than 45 days from now, a number of sections of the Patriot Act expire. The administration and a large section of our national security apparatus, including the Pentagon, Homeland Security, etc. are strongly pushing for extended renewal of these sections without modification.
While this may on the surface seem like something we should do (we need all the security we can get in these times of terrorism, Chinese/North Korean/WhoKnows hacks, etc. – right?) – the reality is significantly different. Many of the Sections of the Patriot Act (including ones that are already in force and do not expire for many years to come) are insidious, give almost unlimited and unprecedented surveillance powers to our government (and by the way any private contractors who the government hires to help them with this task), and are mostly without functional oversight or accountability.
Details of the particular sections up for renewal may be found in this article, and for a humorous and allegorical take on Section 215 (the so-called “Library Records” provision) I highly recommend this John Oliver video. While the full “Patriot Act” is huge, and covers an exhaustingly broad scope of activities that allow the government (meaning its various security agencies, including but not limited to: CIA, FBI, NSA, Joint Military Intelligence Services, etc. etc.) the sections that are of particular interest in terms of digital security pertaining to communications are the following:
- Section 201, 202 – Ability to intercept communications (phone, e-mail, internet, etc.)
- Section 206 – roving wiretap (ability to wiretap all locations that a person may have visited or communicated from for up to a year).
- Section 215 – the so-called “Library Records” provision, basically allowing the government (NSA) to bulk collect communications from virtually everyone and store them for later ‘research’ to see if any terrorist or other activity deemed to be in violation of National Security interests.
- Section 216 – pen register / trap and trace (the ability to collect metadata and/or actual telephone conversations – metadata does not require a specific warrant, recording content of conversations does).
- Section 217 – computer communications interception (ability to monitor a user’s web activity, communications, etc.)
- Section 225 – Immunity from prosecution for compliance with wiretaps or other surveillance activity (essentially protects police departments, private contractors, or anyone else that the government instructs/hires to assist them in surveillance).
- Section 702 – Surveillance of ‘foreigners’ located abroad (in principle this should restrict surveillance to foreign nationals outside of US at the time of such action, but there is much gray area concerning exactly who is a ‘foreigner’ etc. [for instance, is a foreign born wife of a US citizen a “foreigner” – and if so, are communications between the wife and the husband allowed??]
Why is this Act so problematic?
As with many things in life, the “law of unintended consequences” can often overshadow the original problem. In this case, the original rationale of wanting to get all the info possible about persons or groups that may be planning terrorist activities against the USA was potentially noble, but the unprecedented powers and lack of accountability provided for by the Patriot Act has the potential (and in fact has already been proven) to scuttle many individual freedoms that form the basis for our society.
Without regard to the methods or justification for his actions, the revelations provided by Ed Snowden’s leaks of the current and past practices of the NSA are highly informative. This issue is now public, and cannot be ‘un-known’. What is clearly documented is that the NSA (and other entities as has since come to light) have extended surveillance on millions of US citizens living within the domestic US to a far greater extent than even the original authors of the Patriot Act envisioned. [This revealed in multiple tv interviews recently].
The next major issue is that of ‘data creep’ – that such data, once collected, almost always gets replicated into other databases, etc. and never really goes away. In theory, to take one of the Sections (702), data retention even for ‘actionable surveillance of foreign nationals’ is limited to one year, and inadvertent collection of surveillance data on US nationals, or even a foreign national that has travelled within the borders of the USA is supposed to be deleted immediately. But absolutely no instruction or methodology is given on how to do this, nor are any controls put in place to ensure compliance, nor are any audit powers given to any other governmental agency.
As we have seen in past discussions regarding data retention and deletion with the big social media firms (Facebook, Google, Twitter, etc.) it’s very difficult to actually delete data permanently. Firstly, in spite of what appears to be an easy step, actually deleting your data from Facebook is incredibly hard to do (what appears to be easy is just the inactivation of your account, permanently deleting data is a whole different exercise). On top of that, all these firms (and the NSA is no different) make backups of all their server data for protection and business continuity. One would have to search and compare every past backup to ensure your data was also deleted from those.
And even the backups have backups… it’s considered an IT ‘best practice’ to back up critical information across different geographical locations in case of disaster. You can see the scope of this problem… and once you understand that the NSA for example will under certain circumstances make chunks of data available to other law enforcement agencies, how does one then ensure compliance across all these agencies that data deletion occurs properly? (Simple answer: it’s realistically impossible).
So What Do We Do About This?
The good news is that most of these issues are not terribly difficult to fix… but the hard part will be changing the mindset of many in our government who feel that they should have the power to do anything they want in total secrecy with no accountability. The “fix” is to basically limit the scope and power of the data collection, provide far greater transparency about both the methods and actual type of data being collected, and have powerful audit and compliance methods in place that have teeth.
The entire process needs to be stood on its end – with the goal being to minimize surveillance to the greatest extent possible, and to retain as little data as possible, with very restrictive rules about retention, sharing, etc. For instance, if data is shared with another agency, it should ‘self-expire’ (there are technical ways to do this) after a certain amount of time, unless it has been determined that this data is now admissible evidence in a criminal trial – in which case the expiry can be revoked by a court order.
The irony is that even the NSA has admitted that there is no way they can possibly search through all the data they have collected already – in terms of a general search-terms action. They could of course look for a particular person-name or place-name, but if this is all they needed they could have originally only collected surveillance data for those parameters instead of the bulk of American citizens living in the USA…
While they won’t give details, reasonable assumptions can be drawn from public filings and statements, as well as purchase information from storage vendors… and the NSA alone can be assumed to have many hundreds of exabytes of data stored. Given that 1 exabyte = 1,024 Petabytes (which in turn = 1,024 terabytes) this is an incredible amount of data. To put another way, it’s hundreds of trillions of gigabytes… and remember that your ‘fattest’ iPhone holds 128GB.
It’s a mindset of ‘scoop up all the data we can, while we can, just in case someday we might want to do something with it…’ This is why, if we care about our individual freedom of expression and liberty at all, we must protest against the blind renewal of these deeply flawed laws and regulations such as the Patriot Act.
This discussion is entering the public domain more and more – it’s making the news but it takes action not just talk. Make a noise. Write to your congressional representatives. Let them know this is an urgent issue and that they will be held accountable at election time for their position on this renewal. If the renewal is not granted, then – and typically only then – will the players be forced to sit down and have the honest discussion that should have happened years ago.