Government only pretends to rein in NSA surveillance in the Rogers/Ruppersberger bill
The age-old social contract between people and governments has become corrupted. It should be that the people pay governments to protect them. But governments have decided that the best way to protect themselves is to control the people. And that is their driving motivation.
Occasionally the people fight back; and if they fight hard enough they seem to have a few victories — the first crypto wars, SOPA, ACTA, the Communications Data Bill and others. But the people never win and cannot win. Governments cannot be beaten — they can be changed, but it is always like-for-like. Compare the current UK Tory government with the previous Blair/Brown Labour government: there is no difference.
When the people seem to win a victory against government control, all that happens is that government feigns defeat and operates a tactical withdrawal. But it does not forgive and it does not forget. Later, it returns with a left hook, an uppercut or a simple sucker punch. It alters its arguments, it changes its dress, but it does not change its intent.
The first crypto wars were never won; government simply usurped the entire internet instead. ACTA was not abandoned, it was simply compartmentalised into the TPP and TTIP (both negotiated in more secrecy than ACTA) to make it easier to swallow in smaller bites. And the Data Communications Bill will simply return as the Data Communications Bill as soon as Cameron (or the next prime minister) can rid himself of or neutralize Nick Clegg.
So what of US moves to reign in NSA surveillance? History tells us not to expect it. And, indeed, both the EFF and the Cato Institute tell us not to believe it.
The first bill to actually hit the table is that proposed by the House Permanent Select Committee on Intelligence (HPSCI) — and the first warning comes from the EFF: “The bill only needs 17 lines to stop the calling records program, but it weighs in at more than 40 pages. Why?”
Because, says the EFF, “the ‘reform’ bill tries to create an entirely new government ‘authority’ to collect other electronic data.”
Julian Sanchez, writing in the Cato Institute, explains the new authority:
In order to preserve the capabilities of the current NSA telephony program, the HPSCI bill created a new and distinct authority, §503, that authorizes rapid collection of both telephony and electronic communications metadata under a process superficially somewhat similar to §702 of the FISA Amendments Act.
Under the Hood of the House Intel Committee’s NSA Reform Bill
To sum up, says Sanchez, the HPSCI bill’s seemingly broad prohibition on bulk collection turns out to be riddled with ambiguities and potential loopholes. Seems like the NSA puts backdoors into more than just cryptography.
While this would at least presumably put an end to the current dragnet collection of telephony metadata, it is not at all clear how seriously it would constrain the government’s bulk collection of records on the whole. In some respects, there is at least a colorable argument that the new authority could expand the scope of government collection in some respects. Given the government’s track record on this front, it is probably not excessively paranoid to suspect that any such loopholes and ambiguities are likely to be exploited.
Under the bill, the government might try to argue that the order can collect any type of record created as the result of any “electronic communication” as long as the communication is of an agent of a foreign power or someone in contact with the agent or foreign power. This is an incredibly broad standard.
An NSA “Reform Bill” of the Intelligence Community, Written by the Intelligence Community, and for the Intelligence Community
In short, government is doing precisely what history tells us it would. It is pretending to bow to the will of the people while actually increasing and enshrining in statute new and more extensive control capabilities.