Section 309 of HR 4681 (a.k.a. the “Obama Gets to Keep His Toys” section of the Intelligence Authorization Act of 2015)

Last week Congress passed HR 4681, the Intelligence Authorization Act of 2105

I’ve pasted the complete text of section 309, which is the section Justin Amash was concerned enough about to require a roll call vote be taken. (Only 59 representatives voted against it. Click here to see what your representative did.)

The section permits acquisition, retention and dissemination of “covered communications” subject to certain “limitations.” The limitations are weak, and seem to apply only to retention. Also, while the default retention period is five years, that can be extended for a variety of vaguely worded reasons (including that the communication is merely encrypted), and accountability is only to legislative intelligence committees. Moreover, these weak limitations don’t even have to go into effect for two more years. That means Obama gets to retain all his toys–unfettered access to our private communications–for the remainder of his term in office. How convenient.

Remember, it’s the third-party doctrine that has put protection of all these communications at the mercy of legislation (if not simply the “pen and phone” of our Chief Executive). The only way to fix this mess is to eliminate the third-party doctrine. Read how here.

SEC. 309. PROCEDURES FOR THE RETENTION OF INCIDENTALLY ACQUIRED
COMMUNICATIONS.
(a) Definitions.–In this section:
(1) Covered communication.–The term “covered communication”
means any nonpublic telephone or electronic communication acquired
without the consent of a person who is a party to the
communication, including communications in electronic storage.
(2) Head of an element of the intelligence community.–The term
“head of an element of the intelligence community” means, as
appropriate–
(A) the head of an element of the intelligence community;
or
(B) the head of the department or agency containing such
element.
(3) United states person.–The term “United States person”
has the meaning given that term in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
(b) Procedures for Covered Communications.–
(1) Requirement to adopt.–Not later than 2 years after the
date of the enactment of this Act each head of an element of the
intelligence community shall adopt procedures approved by the
Attorney General for such element that ensure compliance with the
requirements of paragraph (3).
(2) Coordination and approval.–The procedures required by
paragraph (1) shall be–
(A) prepared in coordination with the Director of National
Intelligence; and
(B) approved by the Attorney General prior to issuance.
(3) Procedures.–
(A) Application.–The procedures required by paragraph (1)
shall apply to any intelligence collection activity not
otherwise authorized by court order (including an order or
certification issued by a court established under subsection
(a) or (b) of section 103 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803)), subpoena, or
similar legal process that is reasonably anticipated to result
in the acquisition of a covered communication to or from a
United States person and shall permit the acquisition,
retention, and dissemination of covered communications subject
to the limitation in subparagraph (B).
(B) Limitation on retention.–A covered communication shall
not be retained in excess of 5 years, unless–
(i) the communication has been affirmatively
determined, in whole or in part, to constitute foreign
intelligence or counterintelligence or is necessary to
understand or assess foreign intelligence or
counterintelligence;
(ii) the communication is reasonably believed to
constitute evidence of a crime and is retained by a law
enforcement agency;
(iii) the communication is enciphered or reasonably
believed to have a secret meaning;
(iv) all parties to the communication are reasonably
believed to be non-United States persons;
(v) retention is necessary to protect against an
imminent threat to human life, in which case both the
nature of the threat and the information to be retained
shall be reported to the congressional intelligence
committees not later than 30 days after the date such
retention is extended under this clause;
(vi) retention is necessary for technical assurance or
compliance purposes, including a court order or discovery
obligation, in which case access to information retained
for technical assurance or compliance purposes shall be
reported to the congressional intelligence committees on an
annual basis; or
(vii) retention for a period in excess of 5 years is
approved by the head of the element of the intelligence
community responsible for such retention, based on a
determination that retention is necessary to protect the
national security of the United States, in which case the
head of such element shall provide to the congressional
intelligence committees a written certification
describing–

(I) the reasons extended retention is necessary to
protect the national security of the United States;
(II) the duration for which the head of the element
is authorizing retention;
(III) the particular information to be retained;
and
(IV) the measures the element of the intelligence
community is taking to protect the privacy interests of
United States persons or persons located inside the
United States.

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6 Comments

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6 responses to “Section 309 of HR 4681 (a.k.a. the “Obama Gets to Keep His Toys” section of the Intelligence Authorization Act of 2015)

    • Thanks so much for this, Craig! I’m more than halfway through, but need to comment on a few thoughts to make sure I don’t lose them. The most important point I gleaned from this so far is that our government is actually working to make our computers and servers less secure, so that they can have access to our communications, with the result that they are leaving us vulnerable, a la poor Sony. Government may be the cause of the damage to Sony and other companies being hacked. Government is supposed to protect us, and yet it’s acting to leave us more vulnerable. That’s damning. (On the other hand, I like that Snowden does not seem to be anti-government, and particularly not anti-U.S. government.)

      What I did not like: his singling out the fact that we share “raw signals information” with Israel, and complaining about torture of Jihadists. No, I don’t thing we should be giving raw signals data to anyone, but I would be careful about singling out Israel.

      Oh, I liked that he singled out Apple as the leader in offering us encrypted communications solutions.

      Off to watch the rest…

      • One more thing I liked: Snowden distinguished between bulk data collection (ineffective, immoral), and government’s use of secret agents (effective and, presumably in his mind, moral). As you probably know, my solution to the third-party doctrine problem preserves government’s ability to use secret agents, which I agree is valid. Thanks again, Craig, for sharing this link here.

      • Craig

        You may think that the purpose of the Federal Government ought to be “to protect us.” But I contend that that is a fundamentally anti-American neocon idea. Such terms would never would have been used by Americans just a few decades ago. They imply that the government should preemptively act to prevent anything bad from happening to any American. And, sadly, that is what most Americans now want rather than to be left free. This is in contradiction to merely punishing crime, adjudicating disputes and defending from invasion. It necessarily means monitoring everyone’s activity, regulating and assessing everything that might happen, exercising ultimate control over all outcomes (lest they might be bad) and doing this on a worldwide basis to prevent foreigners from ever doing anything bad to any Americans. Even if this could be done (it can’t) it would not be desirable because it is incompatible with a free society.

        • Craig

          The only legitimate purpose a government could have to to keep us free not to protect us. If you are free you cannot be safe. Any attempt (even if it could be an honest one) to protect you will prevent you from being free. It is a Marxist sophism to claim that if you are not completely safe you are not “really” free. The Marxists/neocons have completely perverted thought and language on this topic.

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