The law itself isn't nearly strong enough for NSA whistleblower Edward Snowden and his strongest supporters to get behind, but the approval of the USA Freedom Act on Tuesday, many say, simply never would have happened if the former contractor hadn't handed over a trove of the spy agency's most closely held secrets to journalists approximately two years ago.
Shortly after the reform bill passed the U.S. Senate in a 67 to 32 vote (see the roll call here), President Barack Obama signed it into law.
As the Guardian explains, "The passage of the USA Freedom Act paves the way for telecom companies to assume responsibility of the controversial phone records collection program, while also bringing to a close a short lapse in the broad NSA and FBI domestic spying authorities. Those powers expired with key provisions of the Patriot Act at 12.01am on Monday amid a showdown between defense hawks and civil liberties advocates."
"It's no secret we wanted more... [but] we’re celebrating because, however small, this bill marks a day that some said could never happen—a day when the NSA saw its surveillance power reduced by Congress. And we’re hoping that this could be a turning point in the fight to rein in the NSA."
—Cindy Cohn & Mark Jaycox, Electronic Frontier Foundation
The strongest critics of the bill say its biggest fault is that it legitimizes and reauthorizes some of the mass surveillance tactics that Snowden revealed—tactics many charge are a fundamental assault on privacy rights and guaranteed legal protections.
"The Senate just voted to reinstitute certain lapsed surveillance authorities — and that means that USA Freedom actually made Americans less free," said David Segal of Demand Progress. He said his group's opposition to the new law is ironclad because "it does not end mass surveillance and could be interpreted by the Executive branch as authorizing activities the US Court of Appeals for the Second Circuit has found to be unlawful."
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Several other groups who called for stronger reforms says that though much work on overhauling the surveillance apparatus of the U.S. government remains, the passage of the law is certainly notable as it is the first time since September 11, 2001 in which Congress or the executive branch have actually scaled back the spy powers of federal agencies.
"This is the most important surveillance reform bill since 1978, and its passage is an indication that Americans are no longer willing to give the intelligence agencies a blank check," said ACLU's executive director Jameel Jaffer. "It’s a testament to the significance of the Snowden disclosures and also to the hard work of many principled legislators on both sides of the aisle."
And in their response to the passage of the law, the Electronic Frontier Foundation's Cindy Cohn and Mark Jaycox said, "It's no secret we wanted more... [but] we’re celebrating because, however small, this bill marks a day that some said could never happen—a day when the NSA saw its surveillance power reduced by Congress. And we’re hoping that this could be a turning point in the fight to rein in the NSA."
Trevor Timm, who heads the Freedom of the Press Foundation, offered a similar sentiment, while also crediting those whose work made even these imperfect reforms possible. "While the bill has many significant flaws," said Timm, "the USA Freedom Act vote is also historic: it’s the first time since the 1970s that Congress has indicated its intention to restrict the vast powers of intelligence agencies like the NSA, rather than exponentially expand them. It also shows the power that investigative journalism and brave whistleblowing can have on even the most entrenched government interests. Two years ago, debating these modest changes would’ve been unthinkable, and it is absolutely a vindication for Edward Snowden."
In addition to spurring progress in Congress, Timm argued that Snowden's actions paved the way for legal challenges to surveillance overreach, which in turn led to a key ruling by a federal court last month saying the Patriot Act's Section 215 cannot be legitimately interpreted to allow the bulk collection of domestic calling records. "For years the government was able to hide behind procedural maneuvers, like invoking standing or the state secrets privilege, to prevent judges from ruling on the constitutionality of the programs. As the Second Circuit’s landmark opinion ruling NSA mass surveillance of Americans illegal, this tactic is slowly crumbling."
In remarks made from Europe on Tuesday, Daniel Ellsberg, the famous Vietnam War-era leaker of The Pentagon Papers, joined other government whistleblowers and transparency advocates in championing Snowden for his role in the reforms and said the young American, who remains under asylum protection in Russia, should receive the Nobel Peace Prize for his brave contributions to the world.
"This is the most important surveillance reform bill since 1978, and its passage is an indication that Americans are no longer willing to give the intelligence agencies a blank check."
—Jameel Jaffer, ACLU
Speaking for himself in an interview with the Guardian last month, Snowden said that he was very pleased to see the public protests and the various reform efforts that have taken hold since the documents and the programs they described became public.
"The idea that they can lock us out and there will be no change is no longer tenable," he said. "Everyone accepts these programs were not effective, did not keep us safe and, even if they did, represent an unacceptable degradation of our rights."
Though that may be true, Dan Froomkin at The Intercept points out that much of what Snowden revealed is not at all impacted by the passage of the USA Freedom Act:
While the Freedom Act contains a few other modest reform provisions‚ such as more disclosure and a public advocate for the secretive Foreign Intelligence Surveillance Court, it does absolutely nothing to restrain the vast majority of the intrusive surveillance revealed by Snowden.
It leaves untouched formerly secret programs the NSA says are authorized under section 702 of the FISA Amendments Act, and that while ostensibly targeted at foreigners nonetheless collect vast amounts of American communications. It won’t in any way limit the agency’s mass surveillance of non-American communications.
It is for these and other reasons that reformers say that while they mark the passage of the new law as a sound victory, it is only a stepping stone on which to build more striking reforms.
"Our long-term goals are ambitious," said EFF's Cohn and Jaycox as they called for "the end of overbroad surveillance of all digital communications, a recognition of the privacy rights of people outside the United States, and strong accountability and oversight for surveillance practices."
The USA Freedom Act "did not accomplish these things," they concluded, but it did move the country in the right direction. More importantly, they added, it "demonstrated the political will and organization of the digital rights community, which we know will continue to fight for stronger reforms."