The 2nd U.S. Circuit Court of Appeals has just thrown a wrench in the surveillance reform debate.
This week, the House of Representatives will likely vote on the USA Freedom Act of 2015 — a bill many see as a last-ditch effort to enact surveillance reform before provisions of the Patriot Act are set to expire on June 1.
The vote will come less than a week after the 2nd Circuit definitively ruled that the NSA's nationwide phone-records program violated the law — effectively undercutting the government's justification for mass surveillance under Section 215 of the Patriot Act and other authorities.
Some provisions of the bill may offer incremental improvements over the dismal status quo. However, in the wake of the 2nd Circuit's decision, it is clear that the proposal now on the table does not go nearly far enough.
The ACLU does not currently support or oppose the bill, but we think that members of Congress should demand more. We believe that the following improvements can and should be adopted to make the bill stronger.
1. Amend the bill to prevent surveillance of individuals with no nexus to terrorism
The 2015 USA Freedom Act would authorize the collection of records and communications identified by a "specific selection term" (SST) under Section 215, FISA's pen-register provision, and national security letter authorities. This would stop the government from conducting indiscriminate surveillance of virtually all citizens and from engaging in narrower but still-egregious forms of abuse, like the surveillance of everyone in an entire zip code or all those who use a given communications provider, like Gmail. However, the current SST definition is still not strong enough to prevent "bulky" collection, which allows the government to sweep up the information of scores of innocent people with no connection to terrorism. For example, the government could still collect the records of hundreds of people who share an IP address or everyone who works for a given corporation.
The bill should be amended to narrow the SST definition to prevent this kind of "bulky" surveillance. The bill should also make crystal clear — consistent with the 2nd Circuit's decision — that Section 215 cannot be used to amass Americans' records for open-ended data-mining purposes, unmoored from any specific investigation.
2. Include procedures to ensure the government purges irrelevant information
Right now, the bill would allow the collection of irrelevant information under Section 215 and other authorities without "minimization" procedures to ensure that such information is immediately purged. These provisions are essential precisely because the bill would still permit the government to collect large amounts of information about innocent people — information it simply doesn't need and shouldn't be storing in its databases for years at a time.
Prior versions of the bill included these basic protections, requiring that the government purge information collected through "bulky" surveillance. These restrictions should be restored, and they should be applied to each of the authorities Congress is reforming. Otherwise, we risk the further ballooning of government databases containing the information of innocent Americans, similar to the NSA's shadow database of phone records.
3. Make sure the public has a strong advocate in the FISC
As the 2nd Circuit decision observed, adversarial judicial process is vital, especially on matters as critically important as the government's authorities to spy on its citizens. Yet the court that authorizes these programs, the Foreign Intelligence Surveillance Court, generally hears from only one side — the government. In an effort to remedy this, the USA Freedom Act creates an advocate to participate in significant FISC proceedings. However, this advocate participates solely at the discretion of the court and can make arguments that do not advance privacy and civil liberties.
This is at best a quarter measure. The advocate should be appointed in all significant cases before the secret court and have the express purpose of advocating in favor of privacy and civil liberties.
4. Limit additional authorities that have been used to collect Americans' records in bulk
We now know that the government has conducted bulk surveillance not only under Section 215, but also under a host of other statutes, including existing administrative subpoena authorities. For example, for two decades, up until 2013, the Drug Enforcement Agency operated a program that collected the international call records of Americans in bulk, reportedly under existing administrative subpoena laws.
The USA Freedom Act should amend these authorities — consistent with the 2nd Circuit's decision — to ensure that they are not abused again.
5. Stop the government from using Section 702 of FISA as a backdoor to conduct surveillance on Americans
Under Section 702, the government intercepts — without a warrant — the contents of Americans' electronic communications with individuals abroad and stores them in a database. Though the statute prohibits the government from intentionally targeting Americans, the FBI, NSA, and CIA routinely search through the vast Section 702 databases using the names, email addresses, and phone numbers of U.S. citizens in an effort to find information about them. Through this so-called "backdoor search" loophole, the government has transformed Section 702 — designed for targets abroad — into a tool for investigating U.S. citizens, including in ordinary criminal investigations.
A majority of the House last year voted in favor of reforms that would require a probable cause warrant prior to conducting such searches. Given the overwhelming support, these provisions should be included in the current bill.
6. Stop the government from using the "material support" laws against individuals who have no intent to support terrorism
Current laws punishing individuals for providing "material support" to terrorism are overly broad and penalize individuals who have no intent of supporting terrorism — they have, for example, been used to prosecute people seeking to provide humanitarian assistance in certain circumstances. The USA Freedom Act should add an explicit "intent" requirement to the material-support laws. The provision of the act that increases criminal penalties for material support should simply be deleted.
The reforms cited above would not be enough to rein in mass surveillance, or even remedy all of the weaknesses in the USA Freedom Act. Congress would still need to comprehensively reform Section 702 of FISA, limit Executive Order 12333, remove reporting loopholes that allow the government to avoid disclosing information about its surveillance activities, and clarify that litigants have standing to challenge surveillance abuses. But collectively, the changes listed above would constitute a meaningful step towards the kind of reform we need.