In the wake of a landmark court ruling which found the U.S. National Security Agency's (NSA) bulk domestic phone surveillance program is illegal, the House of Representatives is set to vote on a bill that would rein in the intelligence agency's powers—but some privacy advocates see it as an inadequate measure for true reform.
The USA Freedom Act, which is expected to pass, would end the NSA's bulk collection of domestic phone records, while extending certain provisions of the USA Patriot Act for an additional four years.
As Spencer Ackerman and Sabrina Siddiqui write at the Guardian:
Absent explicit congressional reauthorization, a controversial provision of the 2001 Patriot Act, known as Section 215, will end next month. The Federal Bureau of Investigation relies on section 215 for access to a wide category of business records for terrorism investigations outside normal subpoena and warrant restrictions. Since 2006, the NSA has relied on section 215 for the ongoing daily collection of all US phone metadata, a practice begun secretly in the weeks after the 9/11 attacks.
The USA Freedom Act would bar bulk collection of domestic phone data under Section 215 while extending the overall authority for another four years. While many privacy groups and tech companies back the bill, several other civil libertarian groups consider it an insufficient step, favoring a full elimination of Section 215 and noting that the bill would leave the vast majority of the NSA’s bulk collection powers untouched.
Last week's ruling by the Second Circuit Court of Appeals in New York found that Section 215 could not be read to authorize the NSA's program, which swept up billions of phone records and metadata of U.S. citizens for over a decade after the September 11, 2001 attacks and was exposed in June 2013 by whistleblower Edward Snowden. ACLU staff attorney Alex Abdo, who argued the case, called the ruling "a resounding victory for the rule of law."
Reform is the next step. Some in Congress see the USA Freedom Act as their best shot at limiting the NSA's powers. However, while the bill has bipartisan support and official White House endorsement, it also faces opposition from both sides of the aisle. Some digital rights watchdogs, like the Electronic Frontier Foundation (EFF), have come out against the bill over what they say are "serious faults" with its reform efforts, particularly its decision to extend Section 215, even at a lesser capacity.
In a blog post published April 30, EFF legislative analyst Mark Jaycox and activism director Rainey Reitman called the USA Freedom Act "a small step instead of a giant leap," particularly in comparison with previous iterations of the bill, introduced in 2013 and 2014, which offered stronger reforms but failed to progress through Congress.
"Above all, it is clear that Congress must do more to rein in dragnet surveillance by the NSA."
—Mark Jaycox and David Greene, Electronic Frontier Foundation
"While the new USA Freedom Act is largely similar to last year's bill, there are significant changes that weaken the legislation. One example is the lack of clearly mandated procedures to delete any information unrelated to the target of the investigation," they wrote. It also "does not address Section 702 of the FISA Amendments Act, the problematic 2008 law that the government uses for PRISM and 'upstream' mass surveillance."
Jaycox and Reitman continue:
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The new USA Freedom Act also continues to exclude meaningful protections for the rights of non-U.S. persons.
...Finally, many of the problems we are facing today stem from rampant secrecy and lack of oversight. Surveillance abuses will not be resolved until our broken classification system—which shields matters of public importance from public scrutiny—is fixed.
In an op-ed for Ars Technica published Tuesday, Jaycox and EFF senior staff attorney David Greene wrote, "Above all, it is clear that Congress must do more to rein in dragnet surveillance by the NSA... Congress should put back key provisions that were dropped along the way as well as remove those that were introduced at the behest of the intelligence community."
The ACLU, which argued last week's case in front of the Second Circuit, does not formally oppose or support the USA Freedom Act. However, the organization has criticized the House Rules Committee for barring consideration of amendments to the bill.
Michael Macleod-Ball, acting director of the ACLU's Washington Legislative Office, said on Monday, "[T]he House should have amended the bill to prevent the government from amassing and keeping the information of innocent Americans. The Senate should not make the same mistake and instead remedy the bill's many deficiencies, which have been criticized on both sides of the aisle."
"Letting Section 215 expire would be preferable to passing the current version of this bill, which fails to adequately protect Americans' information from unwarranted government intrusion," Macleod-Ball said.
"Letting Section 215 expire would be preferable to passing the current version of this bill, which fails to adequately protect Americans' information from unwarranted government intrusion."
—Michael Macleod-Ball, ACLU
By not allowing amendments to the bill ahead of the vote, "The House is missing out on a pivotal moment to improve the legislative text," EFF's Reitman wrote in a separate blog post on Tuesday. "However, it also means there is no opportunity for NSA apologists to water down the bill—exactly as they did to the House version last year."
If the USA Freedom Act passes the House as expected, it will go to the Senate, where it faces strong opposition from Majority Leader Mitch McConnell (R-KY), who is pushing for a "rubber-stamp reauthorization of Patriot Act spying authorities," Reitman said.
"2015 can and should be the year for powerful surveillance reform, and we’re urging the Senate to rise to this opportunity," she added.