The Freedom Act recently became Law. This new Freedom Act won’t substantially reduce bulk surveillance. Safeguards from the original Freedom Act are needed.
New York Times ‘15
(editorial board of New York Times – The Opinion Pages of New York Times – “More Excuses on the Patriot Act “ - May 1st - http://www.nytimes.com/2015/05/02/opinion/more-excuses-on-the-patriot-act.html?smid=fb-share&_r=2)
Software designers have a term — “minimal viable product” — to describe early versions of things like iPhone apps that they can rush to market. The idea is to get something out and refine it as they go along. That’s the argument being made for a measure in Congress that would modify the Patriot Act to make it somewhat harder for the government to conduct mass surveillance of Americans without regard to whether they committed any misdeeds. Sure, there are compromises, Americans are told, but we should not let the perfect be the enemy of the good. The bill is a “critical first step toward reining in” surveillance by the National Security Agency and is a basis for more reform, said Human Rights Watch. Except the Constitution is not Candy Crush. The same idea — let’s do what we can and improve it later — was used to shove the original Patriot Act through Congress. It was used to justify the inadequate changes later made to the act, many of which made it more intrusive on Americans’ rights. In 2008, we got a “reform” of the Foreign Intelligence Surveillance Act, or FISA, that provided retroactive cover for the illegal surveillance of innocent Americans conducted under President George W. Bush behind the false flag of counterterrorism. The new bill, the USA Freedom Act, was passed by the House Judiciary Committee on Thursday in a 25-to-2 vote and sent to the floor for what seems like near-certain approval. It does contain useful changes to Section 215 of the Patriot Act, which was cynically misinterpreted by the Bush administration to cover the collection of millions of telephone records in the United States and elsewhere. Section 215 will expire on June 1 if Congress does not act, but that is unlikely. The new bill would narrow the kinds of records, including so-called metadata from phone calls, that the intelligence agencies can collect without bothering to obtain a warrant even from the obliging FISA court, which virtually always grants one. It adds transparency measures related to government surveillance programs, and provides for more oversight of those programs. But many of those provisions are weaker than in earlier versions of the bill, and weaker than they need to be. The House committee rejected amendments designed to provide greater safeguards for civil liberties — including one from a Republican that would have required the government to get a warrant before searching collected communications for information about Americans. The bill does not end the bulk collection of surveillance data under Section 215. Rather, it limits those operations, which, in addition to eroding the Bill of Rights, have been shown to be worthless in protecting America. The American Civil Liberties Union believes the bill doesn’t sufficiently tighten the definition of the terms used to justify data collection, or properly limit the retention of information about people who are not suspected of wrongdoing, or require meaningful disclosure of so-called “backdoor” searches of databases by the Federal Bureau of Investigation. It does not appoint an advocate to argue before the FISA court on behalf of civil liberties; instead, it simply appoints a panel of experts to advise the court, where only the government is allowed to present a case, in secret.
The new Freedom Act fails. Pen register, super-minimization, and SST standards from the original draft of the Freedom Act would solve.
(et al; David Greene, Senior Staff Attorney and Civil Liberties Director for the Electronic Frontier Foundation. David is also an adjunct professor at the University of San Francisco School of Law, where he teaches classes in First Amendment and media law and an instructor in the journalism department at San Francisco State University. David has significant experience litigating First Amendment issues in state and federal trial and appellate courts and is one of the country's leading advocates for and commentators on freedom of expression in the arts. “ACLU v. Clapper and the Congress: How The Second Circuit’s Decision Affects the Legislative Landscape” - Electronic Frontier Foundation - May 11, 2015 - https://www.eff.org/deeplinks/2015/05/aclu-v-clapper-and-congress-how-second-circuits-decision-affects-legislative)
The U.S. Court of Appeals for the Second Circuit in ACLU v. Clapper has determined that the NSA’s telephone records program went far beyond what Congress authorized when it passed Section 215 of the Patriot Act in 2001. The court unequivocally rejected the government’s secret reinterpretation of Section 215. Among many important findings, the court found that Section 215’s authorization of the collection of business records that are “relevant to an authorized investigation” could not be read to include the dragnet collection of telephone records. The court also took issue with the fact that this strained application of the law was accomplished in secret and approved by the secret and one-sided Foreign Intelligence Surveillance Court (FISA Court). EFF filed amicus briefs in this case in both the district and circuit courts, and we congratulate our colleagues at the ACLU on this significant victory. The Second Circuit’s opinion stands as a clear sign that the courts are ready to step in and rule that mass surveillance is illegal. That’s great news. The Second Circuit’s decision, however, also marks a significant change in the context of the ongoing legislative debate in Congress. Above all, it is clear that Congress must do more to rein in dragnet surveillance by the NSA. Clean Reauthorization First, the Second Circuit’s opinion should stop the idea of a "clean reauthorization" (a reauthorization with no reforms) of Section 215, which is set to expire June 1. Last month, Senate Majority Leader Mitch McConnell and Senate Intelligence Chair Richard Burr introduced S. 1035, a bill that would extend the current language of Section 215 through 2020, thereby continuing the mass spying rubber-stamped by the FISA Court. The morning of the Second Circuit decision, both Senators took to the Senate floor to vehemently defend the bulk collection program and push for a clean reauthorization. But a clean reauthorization is much more complicated now. Congress can’t pretend that the Second Circuit's narrow reading of “relevant to an authorized investigation” doesn’t exist. It’s likely that if Congress merely does a “clean” reauthorization of Section 215, then the district court in ACLU v. Clapper will enjoin the government from using Section 215 as authorization for the call records dragnet, because the district court is bound by the Second Circuit decision. However, if a reauthorization made it clear that Congress intended to reject the Second Circuit’s narrow reading of the law, it could cause further confusion and the government could argue that Congress has fully embraced the dragnet. We’re encouraging people to call Congress and tell their lawmakers to reject Senator McConnell's clean reauthorization in order to avoid the risk that Congress might reject the Second Circuit’s decision The USA Freedom Act Must Be Strengthened In light of the Second Circuit’s decision, EFF asks Congress to strengthen its proposed reform of Section 215, the USA Freedom Act. Pending those improvements, EFF is withdrawing our support of the bill. We’re urging Congress to roll the draft back to the stronger and meaningful reforms included in the 2013 version of USA Freedom and affirmatively embrace the Second Circuit’s opinion on the limits of Section 215. Most importantly, the Second Circuit’s correct interpretation of the law should be expressly embraced by Congress in order to avoid any confusion going forward about what the key terms in the statute mean, especially the terms “relevant” and “investigation.” This recognition could be in the bill itself or, less preferably, in legislative history. The House Judiciary Committee has already included such language in its report to the full House of Representatives, but now the Senate must include the language in the bill or in its own legislative history. This easy task will make sure that the law is not read as rejecting the Second Circuit’s reading and will help ensure that the USA Freedom Act actually accomplishes its goal of ending bulk collection. The House Report on USA Freedom, issued today, takes a step forward by stating that: Congress’ decision to leave in place the ‘‘relevance’’ standard for Section 501 orders should not be construed as Congress’ intent to ratify the FISA Court’s interpretation of that term. These changes restore meaningful limits to the ‘‘relevance’’ requirement of Section 501, consistent with the opinion of the U.S. Court of Appeals for the Second Circuit in ACLU v. Clapper. Ensuring that the Senate doesn't move away from the legislative history should be a top priority as the bill moves forward. But that’s the bare minimum Congress must do. The Second Circuit, and especially Judge Sack’s concurrence, noted a lack of both transparency and a true adversary in the FISA Court. The 2014 and 2013 USA Freedom Act had stronger FISA Court reforms, particularly around the creation of a special advocate who would argue against the government in the FISA Court. The Second Circuit’s opinion also emphasizes that typical subpoenas seek only records of "suspects under investigation, or of people or businesses that have contact with such subjects." Under the current USA Freedom Act, the government can collect records of a "second hop,"—the numbers, and associated metadata, that have been in contact with the numbers collected initially—without any additional authorization. The bill should be changed so that the government must file another application for any further records it wants to collect. Automatically obtaining a "second hop" is unacceptable because it sweeps in too many people’s records. The current USA Freedom Act is also out-of-sync with the court’s narrow view of permissible collection of records because it lacks a rigorous definition of the "specific selection term" the government can use to identify the records it wants to collect. This can be addressed by two changes: (1) drawing upon last year's definition in the USA Freedom Act; and, (2) closing down potential loopholes like the definition of "address" or the use of a "person" to include a corporate person. Restoring Important Parts of 2013’s USA Freedom Act This is also an opportunity and a new context for Congress to address the shortcomings of the newly introduced USA Freedom Act that we previously wrote about. 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. First, the "super minimization" procedures, which were key privacy procedures that mandated the deletion of any information obtained about a person not connected to the investigation, should be reintroduced. Key provisions establishing a higher legal standard and compliance assessment for the use of pen register/trap-and-trace devices, legal standing to sue the government over surveillance practices, and the original transparency provisions allowing government and corporate disclosure of surveillance orders should also be resuscitated.