Jan
30
Don’t feel bad if you missed it. Some allege that that was the idea. Late last year, Congress quietly extended Section 215 of the Patriot Act by burying it in the Further Continuing Appropriations Act of 2020. “Most famously,” reported Harvard Law School’s Jolt Digest,
… Section 215 authorizes the bulk collection of telephony metadata, or call detail records (“CDRs”). These CDRs contain the time, duration, and participating numbers in a telephone call, but do not include information regarding the content of the call. Originally, after the passage of the PATRIOT Act, the NSA could store these CDRs and search them as needed.
For today’s TBT, here’s what I wrote about Section 215 in January 2015, when it was last up for renewal.
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Canaries and the Patriot Act: It’s time to let Section 215 expire
It was once common practice never to descend into a coal mine without a canary. Canaries are more sensitive than humans to methane and carbon monoxide, which are odorless, colorless, and deadly. If the canary expired, it meant you needed to hightail it out of the mine before you expired, too.
The practice ended early in the 20th century. But now, in passive-aggressive response to Section 215 of the Patriot Act, a namesake practice known as a “warrant canary” has arisen.
Section 215 lets the FBI make any person or entity fork over on demand pretty much anything—printed matter, computer files, data, online search histories, phone records, purchases, reading habits, underwear, you-name-it. The FBI can exercise this privilege without having to show grounds or probable cause.
Moreover, if you’re issued an order under Section 215, it is illegal for you to say so.
Still, it wasn’t long before a few astute, rebellious souls noticed that Section 215 neglected to make it illegal to say that you haven’t been issued an FBI order. Suddenly statements began appearing like this one, from Apple’s 2013 Transparency report:
“Apple has never received an order under Section 215 of the USA Patriot Act. We would expect to challenge such an order if served on us.”
That statement is a warrant canary. The idea is that if the statement changes or disappears, we might reasonably infer that the warrant canary has died—that is, that an order has been issued. That is why not a few people were concerned when one year later Apple changed the statement to this:
“To date, Apple has not received any orders for bulk data.”
The qualifier “bulk” may portend a deceased canary in the form of Apple’s having received orders for specific data.
The FBI, it seems, is not a fan of loopholes. Nor does having named the loophole in question after a sweet, colorful finch appear to have appeased them. As I write, the FBI is pursuing legal action to disallow warrant canaries. Not just Apple, but the likes of Twitter, Google, others, and of course the ACLU, are opposing the FBI on this one.
I bring it up at this time for two reasons. First is that the issue has been heating up of late. Second, Section 215 of the Patriot Act is due to expire on June 1 of this year.
I hope that our elected leaders will stay their hands and let Section 215 pass into oblivion. I am no lawyer, and call me a rebel if you must, but I think that Section 215 rather flies in the face of the spirit of the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Or, to put it even more succinctly: Without cause and due process, government officials cannot barge into your personal place and dig around willy-nilly just to see what they find.
Watch for this issue to escalate as June 1 draws nearer. Until then, let’s hope that the ACLU, Apple, et al can continue to—I can’t resist saying it—give Section 215 the bird.