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Last week, former National Security Agency Director Michael Hayden declared that he was "cool" with the recently enacted USA Freedom Act, which reined in government bulk collection of Americans' phone records. His characterization of that program as "little" is no doubt accurate.
Last week, former National Security Agency Director Michael Hayden declared that he was "cool" with the recently enacted USA Freedom Act, which reined in government bulk collection of Americans' phone records. His characterization of that program as "little" is no doubt accurate. Information from the archive of documents released by NSA whistleblower Edward Snowden has revealed many other programs that pose equal or greater risks to Americans' privacy.
But Hayden is too quick to assume that the phone records program will be the only reform. The passage of the USA Freedom Act is the first curtailment of intelligence authorities since the 9/11 attacks and should mark the beginning -- not the end -- of reform.
It's no surprise that Congress chose to tackle the phone record program first. It is relatively straightforward for people to understand, and its goal of amassing a vast database of information about Americans is patently difficult to square with our constitutional values. Two review boards found it to be of minimal counterterrorism value, and a federal appeals court declared it illegal. Even the intelligence community and the president were amenable to reform.
But Congress is well aware that this reform is insufficient. Many of the votes against the act in the House and Senate came from lawmakers who believe it didn't go far enough.
Several NSA programs are carried out under 2008's FISA Amendments Act, which permits the agency to collect information in the U.S. as long as it targets foreigners who are thought to be overseas. Despite their purported foreign focus, these programs undoubtedly pull in huge pools of Americans' communications. International communications have grown exponentially in the last years as it has become easier and cheaper to talk and text with people abroad. In our increasingly interconnected world, the notion that surveillance targeted at foreigners overseas pulls in only a negligible amount of Americans' private correspondence is simply outdated.
Nor is the NSA limited to targeting terrorism suspects. It is permitted to collect "foreign intelligence information," a capacious category that includes the open-ended class of material relevant to foreign affairs. This allows the NSA to scan all our international communications and keep those that it thinks are interesting. E-mails sent by a Human Rights Watch lawyer to a researcher in Nigeria would be scanned, even if neither is suspected of involvement in wrongdoing. If they mention something about the political situation there of interest to the NSA, they could be retained. A text message from an American journalist to a colleague in Turkey asking a question about the Islamic State in Iraq and the Levant could be picked up as well.
We don't know how many NSA databases of Americans' information exist or how large they are. We do know that the Federal Bureau of Investigation dips into these archives of emails, texts, videos and chat messages with few constraints. In other words, information collected without any type of warrant or judicial review for intelligence purposes can be obtained by a U.S. law enforcement agency and used in a domestic criminal proceeding.
The House of Representatives recently passed an amendment to the Defense Appropriations bill (the National Defense Authorization Act) that would end these backdoor searches by defunding them. While this initiative might not pass, lawmakers will have another chance to stop the program when the extraordinary and controversial grant of powers in the FISA Amendments Act expires in 2017.
Even that would just be skimming the surface. The vast majority of U.S. surveillance doesn't take place under any law passed by Congress. When our intelligence agencies collect information overseas -- for example, by tapping into fiber optic cables to scoop up all information that flows through them -- they operate under an order issued by President Ronald Reagan in 1981, Executive Order 12333, which gives the NSA even greater latitude to collect information with even fewer privacy safeguards than any legislation.
Just because information is collected from a cable overseas doesn't mean that it concerns only foreigners. Purely domestic emails may be routed through another country and picked up. Copies of documents are stored by cloud providers overseas, sometimes in multiple locations. Domestic websites often have ads, pop-ups and other such links that are hosted on foreign servers, effectively sending search queries into the international ether. Americans' privacy is just as affected by overseas collection as it is by what happens on U.S. soil.
Of course, the NSA must retain the capacity to collect information necessary for national defense and security. The question that needs urgent attention is whether it needs quite as much as it is currently hoarding or whether a more targeted approach would keep us both safe and free from the fear that our every move is being watched.
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 Guardianexplains, "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 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."
Several other groups who called for stronger reforms say that though much work remains on overhauling the U.S. government's surveillance apparatus, the passage of the law is certainly notable as it is the first time since September 11, 2001, that Congress or the executive branch has 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."