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Fight Over Domestic Spying Heats Up in Congress with 'USA Freedom Act'

With Patriot Act reauthorization quickly coming down the pipe, fight over surveillance reform represented in competing congressional bills

Jon Queally

A bipartisan bill, designed to rein in the bulk collection of the private communications of American citizens, was introduced Tuesday by members of the House and Senate Judiciary Committees, ahead of an upcoming expiration date for key Patriot Act provisions that have given legal authority to some of the most controversial domestic surveillance practices revealed over the last two years.

With a June 1 expiration for Sections 206 and 215 of the USA Patriot Act, initially rammed through Congress in the wake of the attacks of September 11, 2001, the revisions contained in the new reform bill—submitted as the USA Freedom Act of 2015 (pdf)—would reauthorize certain aspects of that law while seeking to reform ways the government uses its spying capabilities. A similar reform bill was introduced last year in Congress, but ultimately did not gain enough support to pass.

"The bipartisan, bicameral USA Freedom Act of 2015 is the product of intense and careful negotiations between the House and Senate," said Sen. Patrick Leahy (D-Vt.) as he introduced the bill.

"If enacted, our bill will usher in the most significant reform to government surveillance authorities since the USA Patriot Act," said Leahy, adding that the law is designed to both "end the NSA’s dragnet surveillance and protect Americans' privacy rights."

The new version of the USA Freedom Act will now compete with a parallel surveillance bill introduced earlier this month by Senate Majority Leader Mitch McConnell (Ky.) and Senate Intelligence Committee Chairman Richard Burr (N.C.), both Republicans. McConnell and Burr's bill would reauthorize the Patriot Act through the end of 2019 and entrench much of the domestic spying legal structures used by government agencies. This includes the re-authorization of Section 215, one of the most contentious provisions in the law that the NSA uses to conduct bulk phone records collection.

As the Guardian's Spencer Ackerman explains in his most recent reporting, the USA Freedom Act remains a hard swallow for civil libertarians and privacy advocates because even though it sunsets Section 215 and includes other strong reforms, it also "contains several concessions to pro-surveillance legislators meant to facilitate its passage. Among them are expansions of temporary spying authorities to account for surveillance targets transiting into and out of the U.S., and an unrelated expansion of penalties for people convicted of lending 'material support' to terrorism."

As such, advocates of privacy and civil liberties offered mixed reactions to the bill on Tuesday, acknowledging the USA Freedom Act makes laudable attempts at reform in some key areas, while falling markedly short in others.

"When it comes to ending domestic bulk collection, this new version of the USA Freedom Act is clearly superior to the bill that passed the House of Representatives in 2014," said Harley Geiger, advocacy director and senior counsel at the Center for Democracy and Technology (CDT), in a statement. "The Patriot Act has been misappropriated for mass collection of Americans’ sensitive information for too long, without any tangible benefit to security. Congress should not wait any longer to decisively rein in these egregious practices."

CDT acknowledged that comprehensive surveillance reform is still needed, but justified its support of the USA Freedom Act by saying its passage would represent significantly more progress than if the Patriot Act, and troubling provisions like Section 215, were given re-authorization without new constraints. As Greiger explained in a detailed Q&A about the bill on its website: "We’d certainly prefer to see the USA Freedom Act make far more reforms than it does. However, it is not an omnibus surveillance reform bill."

Jameel Jaffer, the deputy legal director of the American Civil Liberties Union (ACLU), however, expressed stronger dissatisfaction with the new version of the bill, telling the Guardian in a statement that it " doesn’t go nearly far enough" to rein in mass surveillance or curb the worst abuses when it comes to government bulk data collection.

"While we appreciate the hard work of legislators like Senator Leahy, Representative Sensenbrenner, and Representative Conyers," said Jaffer, "this bill would make only incremental improvements, and at least one provision – the material-support provision – would be a step backwards. The disclosures of the last two years make clear that we need wholesale reform. Congress should let Section 215 sunset as it’s scheduled to, and then it should turn to reforming the other surveillance authorities that have been used to justify bulk collection."

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