Did Letting Section 215 Expire Completely Change USA Freedom Without Anyone Noticing?

from the what-did-we-do-now? dept

It's become bizarrely trendy among some (especially on Reddit) to flat out hate on the USA Freedom Act, ignoring that it has some very useful reforms in it. It's absolutely true that they are small reforms that don't go far enough and don't touch on many other, more worrisome, programs, but there was plenty of useful stuff in there as well, in taking a first small step towards reform. However, in the comments to our post last Sunday about the three surveillance provisions briefly sunsetting until USA Freedom passed a few days later, someone asked if the USA Freedom Act still worked the same even after Section 215 expiring, since it modified Section 215. I really had no idea.

Over at Just Security, they're now discussing that issue, pointing out that things might be a bit messier than everyone expected. That's because, yes, USA Freedom modifies the text of existing law, but the existing law changed at midnight Sunday night, and the "changed" text might no longer make any sense:

Practically speaking, things aren’t so simple. For example, the US Code section that up until Monday morning had contained the business records provision was 50 USC § 1861. As of 12:00am on June 1, however, any parts of the US Code that had expired reverted back to how they read on October 25, 2001, per the terms of the 2005 and subsequent reauthorizations. But rather than containing the business records provision, the old version of Section 1861 contained definitions for terms (and Section 1862 was the FISA business records provision). This raises the second question of how the US Code will read now that the unaltered version of the USA Freedom Act is law.

The answer here is much less clear and is where the US Code is about to get a little weird. Section 601(b) of the USA Freedom Act, for example, amends Section 502(c) of FISA. But Congress' instructions for modifying that part of the US Code creates a number of blank spots in the text and several nonsequiturs. For example, Section 601(b) says that the word "and" should be struck in subparagraph (A), to insert a semicolon in subparagraph (B), and to add subparagraphs (C) through (E), but neither (A) nor (B) existed in the pre-Patriot Act text. As a result, here’s how it now reads:

1862. Access to certain business records for foreign intelligence and international terrorism investigations

(c) Ex parte judicial order of approval

(1) Upon application made pursuant to this section, the judge shall enter an ex parte order as requested, or as modified, approving the release of records if the judge finds that the application satisfies the requirements of this section.

(A)
(B) ;
(C) the total number of applications made for orders approving requests for the production of tangible things under section 501 in which the specific selection term does not specifically identify an individual, account, or personal device;
(D) the total number of orders described in subparagraph (C) either granted, modified, or denied; and
(E) with respect to orders described in subparagraph (D) that have been granted or modified, whether the court established under section 103 has directed additional, particularized minimization procedures beyond those adopted pursuant to section 501(g).

(2) An order under this subsection shall not disclose that it is issued for purposes of an investigation described in subsection (a) of this section.

Section 1862(c)(1)(A) and (B) are blank because they didn’t exist in the pre-Patriot Act version of the law. USA Freedom simply willed them into existence by calling for edits to them and by creating subparagraphs (C) through (E), which had to be preceded by something. And the rest of Section 1862(c)(1)? The FISA provision that explains the requirements for a court order after a successful application by the government to collect a company’s business records is now nonsensically melded with reporting requirements.
And that's not all. As the writeup by Megan Graham notes, this is true of many other sections as well. Basically, USA Freedom was designed to work relative to parts of existing law, but that existing law changed, and now everything's broken and the law, in places, makes no sense at all.

As Graham notes, most people are probably assuming that we can now pretend that USA Freedom is meant to amend not the law as it stood on Tuesday when USA Freedom passed, but the law as it stood two days earlier. And that's a reasonable assumption. But it may not be legally binding. And, thus, there's a half-decent chance that someone could actually challenge the law based on how it actually is supposed to be, rather than letting everyone get away with pretending that, before making the USA Freedom Act law, we first put the three surveillance provisions back in place.
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: confusion, expiration, patriot act, sunset, surveillance, usa freedom act


Reader Comments

Subscribe: RSS

View by: Thread


  • identicon
    Anonymous Coward, 5 Jun 2015 @ 10:53am

    Secret Courts will Solve this

    A Secret Court will rule the law now says whatever the NSA wants it to say and that no one has standing to challenge the ruling. The NSA will refer to those sections whenever they need to justify something, but it will always be redacted in all court filings and public documents. All judges will be referred to the secret rulings which they will not be allowed to review.

    The only way any of this will ever make a difference is if the Supremes get pissed enough to grab a big stick an unilaterally strike down the Secret Courts and all their rulings. Then we will have a constitutional crisis, and the only hope of a free society is if the military or someone similar decides to step in and back the Supremes.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Jun 2015 @ 11:00am

      Re: Secret Courts will Solve this

      As soon as I posted the above, Techdirt went down for a few moments. Seems like it might be the start of a good spy movie.

      Anyway, it occurred to me that the NSA doesn't need to involve the Secret Courts. All they have to do is claim they did and since everything is so secret, who could say otherwise? They would probably get away with it for a long, long time.

      reply to this | link to this | view in chronology ]

      • icon
        ltlw0lf (profile), 5 Jun 2015 @ 11:19am

        Re: Re: Secret Courts will Solve this

        As soon as I posted the above, Techdirt went down for a few moments. Seems like it might be the start of a good spy movie.

        Did you see the same cat, or another cat that looked the same? This is important, because they may have changed something in the matrix.

        Hehe, I suspect it was just the normal website backup script.

        reply to this | link to this | view in chronology ]

    • icon
      The Infamous Joe (profile), 5 Jun 2015 @ 11:02am

      Re: Secret Courts will Solve this

      The only way any of this will ever make a difference is if the Supremes get pissed enough to grab a big stick an unilaterally strike down the Secret Courts and all their rulings.

      They'd probably say "Stop! In the name of love!"

      reply to this | link to this | view in chronology ]

  • icon
    SteveMB (profile), 5 Jun 2015 @ 11:01am

    There's currently a Supreme Court case (King v. Burwell) that hinges on precisely the issue of whether a technical flaw in the legal language invalidates what the legislature clearly intended to pass. It's a lose-lose for the right wing (either their last-ditch Hail Mary to get rid of Obamacare fails, or the Patriot Act sunset provisions really did expire without being replaced with the "USA Freedom" versions).

    reply to this | link to this | view in chronology ]

  • icon
    MondoGordo (profile), 5 Jun 2015 @ 11:03am

    Classic!

    To quote Sir Walter Scott

    "Oh what a tangled web we weave, when first we practice to deceive."

    reply to this | link to this | view in chronology ]

  • identicon
    Beware the colon, 5 Jun 2015 @ 11:15am

    A colon all by itself preceded by an empty clause. Now that is good writing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2015 @ 11:20am

    Remember: ed-style diffs are evil

    Always use unified diffs. The problem with ed-style diffs is that they are easy to apply when the context is completely wrong. The proper solution is for Congress to specify in the modifying language the base upon which the modification is to be made, and to automatically abort a bill which either lacks the necessary context or for which the context is bogus.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2015 @ 11:25am

    It's become bizarrely trendy among some (especially on Reddit) to flat out hate on the USA Freedom Act, ignoring that it has some very useful reforms in it.

    Not a Reddit fan, but I do lurk from time to time. They are no more or less bigoted there than they people they rail against.

    Anyways... It does not matter what reforms are done, maybe you have not noticed the difficulty involved with a citizen ,whom has been screwed by Law Enforcement doing what-ever-the-fuck-they-want, getting actual redress from their rights being violated. For every article you read where someone did win, there are at least 10 others where they failed or the citizens was drowned out in the crowd.

    This administration has made it clear, they will just do exactly whatever the fuck they want regardless of the law, and you will find that neither left or right gives two motherfucking shits about it. The only thing the so called "Freedom Act" is further codify that their fucked version of law is perfectly fine!

    reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 5 Jun 2015 @ 9:22pm

      Re:

      Anyways... It does not matter what reforms are done, maybe you have not noticed the difficulty involved with a citizen ,whom has been screwed by Law Enforcement doing what-ever-the-fuck-they-want, getting actual redress from their rights being violated. For every article you read where someone did win, there are at least 10 others where they failed or the citizens was drowned out in the crowd.

      You realize we *write* those articles all the time. And I still say USA Freedom was a win.

      This administration has made it clear, they will just do exactly whatever the fuck they want regardless of the law, and you will find that neither left or right gives two motherfucking shits about it. The only thing the so called "Freedom Act" is further codify that their fucked version of law is perfectly fine!

      No offense, but that's bullshit. The administration has not "done exactly whatever the fuck they want regardless of the law..." They HAVE absolutely *twisted* the law as much as they possibly can, but they always have at least a very, very stretched interpretation for how they're within the law.

      The USA Freedom Act, for the most part, was written *with that in mind* and to *limit* the ability of the intelligence community to secretly reinterpret it.

      reply to this | link to this | view in chronology ]

  • icon
    SirWired (profile), 5 Jun 2015 @ 11:30am

    Did the expiration result in a reversion?

    Unless the latest revisions/extensions to the Patriot Act explicitly stated that the expiration would result in a reversion to the pre-Patriot USC (vs. the expired provisions just being no longer effective), I don't think any court is going to read the law like that, especially since congressional intent in this case could not be any more clear.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2015 @ 11:41am

    Wait, you're saying there's sections of our surveillance laws that aren't a complete mess?

    reply to this | link to this | view in chronology ]

  • icon
    Nastybutler77 (profile), 5 Jun 2015 @ 11:56am

    Won't this get fixed in Conference Committee?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2015 @ 12:03pm

    As a reform bill, USA Freedom was good. But by the time it was approved, the laws had expired and it was no longer a reform bill, but a new law. The kinds of things it authorizes would never be a good idea without proper debate, which it didn't get. (All the grandstanding by Rand Paul, Ron Wyden, etc was done in an otherwise empty room)

    When put in another light, we made the same mistakes as the initial passing of the Patriot Act. Broad reaching executive power granted hurriedly without proper debate.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 5 Jun 2015 @ 2:23pm

      Re:

      "As a reform bill, USA Freedom was good."

      I think that's far too generous. As a reform bill, USA Freedom is arguably better than nothing. But it's a long way from "good".

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 5 Jun 2015 @ 5:19pm

        Re: Re:

        I'll second that... Given it discounts the bulk surveillance of the known telephone meta data in that it must now be held by the telephone companies, what other reforms are really there on programs that we know or don't know about? Hell, even Senator Wyden says he doesn't know what the anagrams do in the background and has to play 20 questions. When oversight isn't allowed to oversee, we obviously have a condition of military dictatorship. And that still doesn't address other powers now known like NSL letters and the like which could as easily retrieve private information without a warrant.

        reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 8 Jun 2015 @ 10:44am

          Re: Re: Re:

          "Given it discounts the bulk surveillance of the known telephone meta data in that it must now be held by the telephone companies"

          Which, in my opinion, is actively worse than the status quo.

          reply to this | link to this | view in chronology ]

          • icon
            nasch (profile), 8 Jun 2015 @ 10:54am

            Re: Re: Re: Re:

            Which, in my opinion, is actively worse than the status quo.

            The phone companies are holding this information anyway, how can this make it worse?

            reply to this | link to this | view in chronology ]

  • icon
    Derek Kerton (profile), 5 Jun 2015 @ 12:12pm

    Hmmm. How Will The Intelligence Community Interpret the Ambiguity?

    Hmmm. I wonder if the Intelligence agencies will try to find a way to use the confusion to interpret a justification to INCREASE the surveillance.

    Nah. Never happen. They couldn't be that cynical, right?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2015 @ 12:23pm

    It's bizzarely trendy how you keep calling this reform- with no explaination as to how it does anything which amounts to meaningful reform.

    reply to this | link to this | view in chronology ]

  • icon
    GMacGuffin (profile), 5 Jun 2015 @ 12:43pm

    I can only think of the poor congressional staffer not long out of law school but quickly jading who tried to point this out to his/her boss and was brutally rebuffed for *over-thinking it*

    reply to this | link to this | view in chronology ]

  • icon
    MarcAnthony (profile), 5 Jun 2015 @ 1:36pm

    Pragmatism vs. optimism

    I think it’s bizarre to not hate on USA FREEDOM, but I guess some people are silver lining types and others aren’t. I haven't found much of substance in the changes, which further entrench bad practices and allow for six more months of total, illegal seizure, for "transition." Congress, having committed to a course of action, probably considers itself done with surveillance issues for a while, possibly until 2019. The sloppy writings of the legislature are less concerning than are secret courts with their ongoing mockery of representation. The appointment of advocates—made from within the star chamber—only apply to "novel" or "significant" changes, whatever that may be and whomever controls those definitions.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Jun 2015 @ 8:34pm

    Here I cite

    According to 50 USC § 1861(c)(1)(B) ";". So there!

    reply to this | link to this | view in chronology ]

  • icon
    M. Alan Thomas II (profile), 8 Jun 2015 @ 11:43pm

    If it comes before a court, the canons of statutory interpretation are quite clear on avoiding absurd results. While we might argue that they don't always observe this canon—although the documentarian in me would argue that a fish is a document when considered as evidence*—there's no real alternative here. We all know what they meant and there's no real alternative.

    *This was an actual case. The usual library school reading about what constitutes a document uses the example of a different animal and, among other situations, a zoo.

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 9 Jun 2015 @ 7:18am

      Re:

      We all know what they meant and there's no real alternative.

      I'm not an expert, but it seems extremely problematic that a bill can implicitly extend an otherwise expired law, which I think is what you're saying.

      reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat

Warning: include(/home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_promo_discord_chat.inc): failed to open stream: No such file or directory in /home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_module_promo.inc on line 8

Warning: include(): Failed opening '/home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_promo_discord_chat.inc' for inclusion (include_path='.:/usr/share/pear:/home/beta6/deploy/itasca_20201215-3691-c395:/home/beta6/deploy/itasca_20201215-3691-c395/..') in /home/beta6/deploy/itasca_20201215-3691-c395/includes/right_column/rc_module_promo.inc on line 8
Recent Stories
.

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.