India shows the way

http://www.washingtonpost.com/blogs/the-switch/wp/2014/05/22/nsa-reform-bill-passes-house-despite-loss-of-support-from-privacy-advocates/


The House passed a bill Thursday aimed at reforming the National 
Security Agency's bulk collection of phone records, a policy that came 
to light due to documents leaked by former NSA contractor Edward Snowden.
The bill, known as the USA Freedom Act, would shift responsibility 
for retaining telephonic metadata from the government to telephone 
companies. Providers like AT&T and Verizon would be required to 
maintain the records and let the NSA search them in terrorism 
investigations when the agency obtains a judicial order or in certain 
emergency situations. The bill passed on an 303 to 121 vote.
But privacy advocates, technology companies and lawmakers warned that the version of the bill passed by the House was watered down to the 
point where they could no longer support it.
"This is not the bill that was reported out of the judiciary bill 
unanimously," said Rep. Zoe Lofgren (D-Calif.), a member of the House 
Judiciary Committee who was a co-sponsor of the initial version of the 
bill. "The result is a bill that will actually not end bulk collection, 
regrettably."
Lofgren said she was particularly concerned about the bill's 
definition of "selector terms," which are the terms that would be used 
by the NSA to define the scope of their data request to the phone 
companies.
The initial version of the bill 
included a more narrow definition, but some privacy advocates fear the 
definition in the Freedom Act passed Thursday could be used to collect 
broad swaths of information. 
"If we leave any ambiguity at all, we have learned that the 
intelligence community will drive a truck through that ambiguity," she 
said. Others, including Rep. Mike Honda (D-Calif.) and Rep. Rush Holt 
(D-N.J.) also expressed their concern with the legislation. Holt 
specifically attacked the bill for using a "weak and inferior standard 
that does not meet probable cause" as the benchmark for judicial orders 
to search phone records.
On Wednesday, the White House endorsed the bill. "The bill ensures 
our intelligence and law enforcement professionals have the authorities 
they need to protect the Nation, while further ensuring that 
individuals’ privacy is appropriately protected when these authorities 
are employed," an official statement of policy read. "Among other 
provisions, the bill prohibits bulk collection through the use of 
Section 215, FISA pen registers, and National Security Letters."
Rep. Jim Sensenbrenner (R-Wis.) was the primary sponsor of the bill 
and the author of the Patriot Act, legislation passed shortly after the 
Sept. 11, 2001, terrorist attacks. Section 215 of the Patriot Act was 
used as the legal basis of the NSA's phone records collection program. 
In a floor speech before the vote, Sensenbrenner said that the 
government misapplied that earlier legislation through a feat of "legal 
gymnastics."
"I don't blame people for losing trust in their government because the government betrayed their trust," he said.
Sensenbrenner urged his fellow members to support the bill, although 
he said wished the version of the bill voted on Thursday "did more."
"Don't let the perfect become the enemy of the good," he said.
Others were more enthusiastic in their support. "This is a carefully 
crafted, bipartisan bill," Judiciary Committee Chair Bob Goodlatte 
(R-Va.) said, adding that the bill "once again proves that American 
liberty and security are not mutually exclusive."
Rep. John Conyers (D-Mich.), the 
ranking Democrat on the House Judiciary Committee, tried to assuage 
concerns about the selector term, calling them "largely theoretical."
"We stand poised to end domestic bulk collection across the board," Conyers said while endorsing the bill before the vote. While Conyers 
admitted that the bill was "imperfect" he called it "a significant 
improvement over the status quo."
But in a blog post, Kevin Bankston the policy director at the New America Foundation's Open Technology Institute identified a number of areas where he says the 
bill had been weakened, including limiting transparency reporting 
provisions for tech companies affected by government data requests and 
the selector term issue decried by Lofgren.
In a statement to The Washington Post after the bill's passage, Bankston said it was "still better than the Intelligence committee's 
competing bill, or no bill at all," but that privacy advocates would 
have to work hard in the Senate to reverse the changes that weakened the bill.
Julian Sanchez, a scholar at the Cato Institute working on these 
issues, says a lot will turn on how the secret Foreign Intelligence 
Surveillance Court interprets phrases like “specific selection term.”
"Unfortunately nobody has much expectation that anything better is 
coming to the floor anytime soon—and even the New Coke version of this 
bill is better than nothing, and certainly better than the House 
Intelligence bill."
Correction: An earlier version 
of this story stated that the USA Freedom Act requires telephone 
companies to maintain phone records for 18 months. The legislation does 
not contain such a requirement. 

In India, as we know, recording metadata as well as some kinds of communications is the job of the telecom companies already, built right into their licenses. No fear of any law to prevent it, as the combination of the two IT Acts, the telegraph and the telecommunications, spanning 125 years of colonial thinking on command and control are quite effective on stripping us of most of the rights we might have thought a given. The media's reportage on this complex issue has not helped, although there has been some blowback from the social media itself, but that is deliberately considered 'unofficial' by all, including the media, which naturally fears it, and would rather stop it if it can't control and profit from it. 

However, the call for a privacy law may not be as straightforward as it seems. All over the world, and as the above example shows, that includes the USA, the natural trend is to weaken such laws and ensure that government has the actual power over citizens, not quite the definition of democracy spelled out by Abraham Lincoln. Since we don't have one yet, the departments of various ministries (DoPT, in its 4th attempt to date, for instance) are working overtime (I don't mean that anyone actually works after hours, they hardly work during hours either) to draft out a law that will be acceptable to the State. In keeping with its provisions, the draft of the Privacy Law has not been made public, since acceptability to the people it affects is hardly a priority, although copies can be found now and then here and there. It definitely looks more professional now, from the first attempt, which involved physical cut and paste (involving paper and glue) from
 earlier documents. 


Vickram
http://communicall.wordpress.com
http://vvcrishna.wordpress.com

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