Tag Archives: Section 702

Section 702 Renewal Could Have Huge Negative Impact on Business

As I said in an earlier post, after 9-11 Congress passed some major new surveillance laws.  The idea was to increase surveillance in a move to try and find more terrorists.  Congress also wasn’t completely sold on the idea, so the law sunsets every few years and Congress has to renew it.  This is one of those renewal years.

But there is a wrinkle.  Congress is still not sold on the idea.  The law was set to expire at the end of December and rather than allowing it to lapse while they were on vacation, Congress renewed the law prior to leaving town.  Renewed that is, for four weeks.  The law is set to expire, again, next week.

There are several bills in various stages of approval that range from a permanent renewal with no restrictions to a limited renewal with restrictions.

Apparently one of the sticking points is something called “About” collection.  This was abandoned last year, but some of the bills in Congress now reincarnate it.  About collection, some say, is a back door to allow the FBI via the NSA to collect information ABOUT Americans without a warrant, using some slight of hand saying the information was collected incidental to someone or some thing they were interested ABOUT.

Congress has 9 days to either figure it out or kick the can down the road.  Again.

But here is the negative business impact.

For U.S. companies that do business in Europe, many of them, especially smaller ones, need to be able to bring that data back to the United States.  Due to Europe’s much stricter privacy laws, they can’t do this unless the agree to offer E.U. citizens the same protections that they would get in Europe.  Enter Privacy Shield, son of Safe Harbor.  Privacy shield is an agreement between the U.S. government and the E.U. government regarding what we will and will not do with respect to protecting E.U. citizen’s privacy.  About 2.400 U.S. companies currently follow the Privacy Shield agreement and more are in process.

But the E.U. lawmakers are not very fond of Section 702.  In fact, they have said so publicly.  In fact, they have threatened to go to E.U. court to have Privacy Shield declared null and void.

And that is exactly what will likely happen (and did happen to Safe Harbor) if the U.S. extends Section 702 as is.

I am not clear that some U.S. Senators and Congresspeople understand that;  they would much rather deal in crisis.

So here is one possible outcome.  Congress renews Section 702 with no reforms, the E.U. goes to court and gets Privacy Shield declared unconstitutional and American businesses get to scramble to figure out how to continue to do business in Europe.  This is worth billions to U.S. businesses.

It probably won’t be that bad.  The court will probably give the U.S. 6-12 months to figure out a solution.  Then bureaucrats in the U.S. and E.U. will need to try and figure out how to deal with it and Congress may have to amend Section 702.

Alternatively, Congress could be proactive.  Not. Counting. On, That.

If you sell into Europe, you might want to contact your Congress-critters.

Otherwise, get some popcorn and watch the fun.

Information for this post came from The Hill.

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Congress Votes to Kick The Can Down The Road on Spying

Section 702 of the Foreign Intelligence Surveillance Act allows the intelligence community to collect intelligence on non-Americans outside the United States without a warrant.  As the intelligence community hoovers up huge quantities of data (they just built a new facility in Utah so that they could bring enough storage online to hold all the data), it is inevitable that they will collect information on Americans, absent a warrant, absent probable cause.  They say there are controls in place to protect Americans, but those controls do not, some say, match the requirements of the Fourth Amendment to the U.S. Constitution.

The Congress, in 2008, had the wisdom to require that Section 702 be renewed every few years.  The result of that is to force a debate and make Congress-critters go on record voting for or against whatever the revised 702 requires.  The last vote to renew Section 702 was in 2012 and it is set to expire on December 31, 2017, about 7 days from now.

In Congress there are several different factions right now:

  • One group wants to renew Section 702 as is and make it permanent.
  • Another group wants to require the FBI to get a court order before viewing information on Americans – information that they hope to use in criminal cases.
  • Others want the FBI to go to the Foreign Intelligence Surveillance Court to weigh in on the legality of query on Americans, pretty much a rubber stamp approval.
  • Finally others want to scrap it entirely.

So Congress does what it does best and renewed Section 702 for another 28 days and went on vacation.

Congress, is on vacation until January 8th and with absolutely no agreement on what to do and only 10 days between when Congress returns and the expiration, do not be surprised if Congress kicks the can down the road again and extends it another 30 days.

Unlike some bills in Congress, this is not an Elephants vs. Donkeys issue;  this is a privacy rights vs. national security issue.

The House Freedom Caucus Chairman told the media that no long term extension would get through Congress at this time.

Republican Sen. Rand Paul and Democratic Sen. Ron Wyden want to bring the fight to the floor.

My personal opinion is that Congress is unlikely to let Section 702 expire.  I just don’t think that is going to happen.  But what form of restrictions are going to be put in place – that is a much harder question to answer.

 

Information for this post came from the Washington Post.

 

 

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FISA Court Affirms FBI Does NOT Need A Warrant To Read Your EMail

The Foreign Intelligence Surveillance Court or FISA Court has affirmed that the Feds do not need a warrant to search your email.  Of course, if that email is encrypted – not like GMail, but with real encryption – then while they may have the FISA court’s permission to look at it, they will have to figure out how do decrypt it first.

FISA Court Judge Thomas Hogan, in an opinion from last November that was recently declassified, said that Section 702 of the Patriot Act, including as amended by the FISA Amendments Act allows the government to keep any emails from American citizens that they hoover up as part of their mass data collection if that email is evidence of a crime.  Evidence of a crime is a pretty low bar.  After all, a lot of evidence would never convince a jury of anything.

This confirms a couple of things.

First, you should not say incriminating things in email.  To me, this falls into the “DUH!” category.

And second, Section 702 of the FISA Amendments Act allows the government to hoover up a lot of email and keep it and share it if they think it could be evidence of a crime.

The implication of this is that if you expect your email to be private, that would require extraordinary steps on your part to make sure that it is.

In that same opinion, the criticized the NSA for not destroying old surveillance data in spite of rules that require them to do that.

“Perhaps”, Judge Hogan wrote, ” more disappointing that the NSA’s failure to purge this information for more than four years, was the Government’s failure to convey to the Court, explicitly during that time that the NSA was continuing to retain this information,”.

Let me translate that to English.

Ye Olde Judge is pissed that the NSA lied to him when they certified that they were complying with the rules for Section 702,  when in fact, they were not compliant.  I am gathering that the judge is saying that this was not an oopsie.

The NSA replied to the ruling by issuing a statement from ODNI Director James Clapper that said “prior representations could have been clearer”. – i.e., we lied and got caught at it.  My bad.  Sorry.

And some people are wondering why some citizens don’t trust the government.  Seems pretty clear why some people don’t trust the government.

Information for this post came from SC Magazine.

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