This morning, Senator Patrick Leahy released a new version of the USA Freedom Act, a bill intended to reform NSA surveillance following Edward Snowden’s revelations that the intelligence agency collects Americans’ calling records in bulk. USA Freedom Act has a disappointing history. While initially proposing much for Americans, if not our friends overseas, to like, the version that eventually passed the House in May was, at best, utterly neutered. Today’s version, hashed out between Sen. Leahy, Obama Administration officials, and civil liberties proponents, moves the needle much closer to the original version.
Of course, as this USA Freedom Act moves through the Senate, the bill could change. And if it passes the Senate, the House will have to reconcile this version with its own gelded one.
But for now, there are things to like, things to hate, and things remaining to fear in USA Freedom.
Things To Like
Leahy’s bill would end bulk, though not bulky, collection of records under section 215, the national security letter (NSL) statute, and the FISA pen register/trap and trace statute. As the House version did, it requires investigators to use a specific selection term” to acquire data, as opposed to the wholesale “give us everything” approach NSA and FBI have taken with (at least) phone records to date. This version, however, also gives “specific selection term” a definition that excludes certain kinds of very broad collection, e.g. collection of records about everyone in a particular location.
The definition would still allow for “bulky” collection, obtaining information that necessarily reveals something about admittedly innocent people. For example, investigators could still get records of everyone who used a particular Internet protocol address, records of everyone who stayed at a hotel in Las Vegas on a particular date, or records concerning a business, corporation or other entity considered a “person” under the law. To address these scenarios, the bill requires post-collection minimization: information about irrelevant individuals who are not under investigation or tied to foreign powers must be deleted.
The bill also requires the Foreign Intelligence Surveillance Court to publicly disclose more information about its rulings, including interpretations of “specific selection term”, significant interpretations of law, and where the opinions remain classified, summaries that enable people to understand the judges’ rulings’ impact on privacy and civil liberties.
Things To Hate
As surveillance reform followers know, one of the most serious problems with content surveillance taking place under section 702 is that the NSA, CIA and FBI use selection terms connected to U.S. persons to search through repositories of data collected from targeting foreigners, a practice called “back door searches”, since ordinarily investigators would need a particularized warrant based on probable cause to get access to that information.
USA Freedom would not end back door searches. It would require NSA and CIA to count the number of times they do it and report to Congress. But it exempts the FBI from the reporting requirement. Wha?! As the public recently learned, FBI is searching these databases for evidence it uses in criminal prosecutions, the FBI doesn’t currently count how often it searches for Americans, and the number is, according to Director of National Intelligence James Clapper, substantial.
The number is high because, as the Privacy and Civil Liberties Oversight Board (PCLOB) explained in its report on section 702:
[W]henever the FBI opens a new national security investigation or assessment, FBI personnel will query previously acquired information from a variety of sources, including Section 702, for information relevant to the investigation or assessment. With some frequency, FBI personnel will also query this data, including Section 702– acquired information, in the course of criminal investigations and assessments that are unrelated to national security efforts. {page 59, emphasis added}
So… don’t exempt the FBI. The least we can do is find out what’s going on there, since we aren’t doing anything else to fix 702 with this bill.
Things to Be Depressed or Hopeful About, Depending on Your Nature
As you might guess from the discussion above, the new USA Freedom Act doesn’t do anything to reform section 702 collection, despite the fact that it has a huge impact on American privacy, and provides no privacy protections when the communications of regular people who happen to be citizens of other nations get sucked into the NSA’s 702 maw. Nor does the proposal touch bulk collection –including of Americans’ data — that takes place overseas under the authority of Executive Order 12333.
Given how much behind the scenes negotiating has taken place for Leahy to introduce the bill as it is, the hope is probably for the legislation to move quickly without much amendment, for fear that process will end up with the disappointing morass that is the House version of the law. I am cautiously optimistic about this version of the bill as far as it goes. It does most of the things that the President’s Review Group, the PCLOB, and civil liberties advocates have asked with regard to section 215 and NSL reform. It doesn’t end bulky collection, but it puts minimizations procedures to remedy that harm right in the public statute. But if we are going to legislate that back door searches be counted and reported, then we must include the FBI. And meanwhile, the public needs to push forward. Congress has so far failed to address legitimate public concerns with section 702 and with virtually unregulated collection abroad.