Ahead of Senate Vote, USA Freedom Act Called 'Major Step' Toward Surveillance Reform

As the U.S. Senate readies for a vote on legislation designed to constrain some of the troubling aspects of domestic surveillance and the national security state, both advocacy groups and private industry are weighing in on the measure.

A coalition of big-name technology and Internet companies--including Facebook, Apple, Twitter, and Dropbox--is lobbying Congress to pass the USA Freedom Act and thereby curb U.S. National Security Agency (NSA) surveillance powers and enact more transparency on government data requests.

"The Senate has an opportunity this week to vote on the bipartisan USA Freedom Act," reads an open letter to the U.S. Senate, released by the 10 tech corporations that comprise the Reform Government Surveillance coalition. "We urge you to pass the bill, which both protects national security and reaffirms America's commitment to the freedoms we all cherish."

The Senate will vote Tuesday on whether to move forward and debate the bill, which was introduced in its current version by Senator Patrick Leahy (D-Vermont) this July. Sixty votes are required for the legislation to advance. After obtaining the 60 votes, the Senate will then debate the bill and any amendments, and hold another vote on Wednesday or Thursday on the final text.

The bill, a revised version crafted by Leahy in negotiation with the Obama administration, other legislators, and the intelligence community, would ban the bulk collection of Americans' telephone records and Internet metadata; expand government and corporate reporting to the public; and require the controversial Foreign Intelligence Surveillance Act Court, in consultation with the Privacy and Civil Liberties Oversight Board, "to appoint a panel of special advocates who are to advance legal positions in support of individual privacy and civil liberties."

It is seen as an improvement from the watered-down House version that passed in May.

According to Mark Jaycox, a policy analyst for the Electronic Frontier Foundation (EFF), though the Senate bill may "may have some problems," it is still "a major step forward for surveillance reform."

EFF is urging its supporters to contact their senators and encourage them to pass the bill "without any amendments that will weaken it."

In its open letter, the Reform Government Surveillance coalition notes that "the version that just passed the House of Representatives could permit bulk collection of Internet 'metadata' (e.g. who you email and who emails you), something that the Administration and Congress said they intended to end. Moreover, while the House bill permits some transparency, it is critical to our customers that the bill allow companies to provide even greater detail about the number and type of government requests they receive for customer information."

Supporters claim the bid to rein in government surveillance has support from both sides of the aisle.

"The American people are wondering whether Congress can get anything done," Leahy said last week, after Senate Majority Leader Harry Reid (D-Nevada) filed the first procedural motion for the Senate to consider the bill. "The answer is yes. Congress can and should take up and pass the bipartisan USA Freedom Act, without delay."

Not everyone is so confident in the legislation. In September, a coalition of whistleblowers and civil liberties organizations charged that the House version of the bill had been "gutted" from its original Senate form and "is not the substantive reform originally envisioned and supported by the public."

And even Leahy's revised version doesn't have sufficient teeth for some observers.

"The misnamed 'USA Freedom Act' holds out the promise of 'reform,' but its main purpose is to mislead," argues Justin Raimondo at Anti-War.com. "It doesn't minimize the intrusive surveillance techniques currently used by the NSA and other government agencies: instead it codifies them, in some instances, and in other instances masks ongoing abuses."

Raimondo continues:

Some civil liberties groups, like the ACLU and the Electronic Frontier Foundation, argue that the present bill is "a first step," and is better than nothing. This is nonsense: this bill is worse than nothing. With the passage of the USA Freedom Act the momentum for real reform will be blunted and allowed to dissipate. Further efforts to roll back the awful power of the NSA will be met with cries of "Didn't we already do this?" If this bill passes, the Washington insiders will win out, and the Surveillance State will remain intact - arguably even more powerful than before.

Some may say: But aren't you taking an all-or-nothing attitude? The answer is: not at all. A real reform means a partial reining in of the NSA, with no new extensions of its reach. This bill includes a full-scale codification of abuses coupled with ambiguous and easily reinterpreted "reforms" that don't mean what they appear to mean.

If the USA Freedom Act fails to pass through the Senate before the end of the year, the process will have to restart in January, when its prospects are even less predictable. The new Republican-majority Congress might look more favorably on government surveillance in the name of national security.

According to a post-election analysis by the National Journal:

Republicans could try to forestall a lame-duck passage of Sen. Patrick Leahy's version of the USA Freedom Act, knowing they may be able to get a better hand--and credit--on an NSA reform package next year. But spying has become a cleavage issue within the GOP, and party leaders may be reticent to make the issue a priority in the next Congress.

With Sen. Mark Udall gone, NSA reformers lose a vocal, dedicated ally to their cause. Udall, along with Sen. Ron Wyden, has held off endorsing Leahy's version of the USA Freedom Act because of a desire to add language that would close the so-called backdoor search loophole that allows the government to "incidentally" collect Americans' Internet communications. With just Wyden, the uphill battle to close the loophole just became steeper, but the Oregon Democrat has repeatedly insisted "time is on the side of the reformers" because the Patriot Act will sunset on June 1, 2015.