Marcy Wheeler explains why the USA Freedom Act that passed the House of Representatives last week “appears to permit the collection smart phone records—that is, records of communication that is sent across the Internet, as well as phone calls facilitated by telecoms providers.”  

“[I]t’s hard to collect Internet metadata without also collecting content. That’s because communications sent across the Internet are chopped up into little bits called ‘packets’ with addressing information—the metadata the government wants to collect—as well as some content that’s included with each little bit… As far as we know, ever since then, the NSA has used very different legal approaches to collect phone records and Internet records.”  

“One potential impact of that gap was exposed during the Boston Marathon attack trial. Witness testimony revealed that Dzhokhar Tsarnaev had no telephony phone records in the weeks leading up to the attack, because his account had been shut down for non-payment. Rather than calling his brother on his AT&T iPhone to plan the attack, Tsarnaev used Skype.”  

“And because wannabe terrorists tend to be younger, and are often immigrants, it follows that they might disproportionally communicate via Internet messaging services, rather than calls transmitted via phone providers. That means any phone records program—dragnet or targeted—that doesn’t include Skype (and iMessage, and other online messaging functions) would be largely useless… Unlike Section 215, the USA Freedom Act appears to include those IP packets; unlike current FISC orders, nothing in the bill is limited to ‘telephony.'”