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: while the 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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