One critical transparency flaw in the new USA FREEDOM Act

(Photo credit: nolifebeforecoffee/Flickr)

Today, the House introduced an updated USA FREEDOM Act. Despite its failure to pass last year (a watered-down version did pass the House, but it failed a cloture vote in the Senate), it is still the surveillance bill most likely to pass Congress – though if no bill passes at all, it’s likely Section 215 will simply sunset.

The legislation offers compromise not simply with small steps forward, but by giving a little to each side. For example, in a nod to reformers, the bill would place new restrictions on how the government can use Section 215 of the PATRIOT Act, which currently permits intelligence agencies to collect virtually all telephone records in America. Section 215 is currently set to sunset on June 1st of 2015, but if the bill passes, Section 215 (among other provisions) would be reauthorized until December 15, 2019.

Because of the sunset provision, a vote on the bill would have to take place before Congress goes into recess May 22. It currently looks like it will move through the Judiciary Committee in the House this week.

There is value in taking small steps forward. But this bill isn’t just composed of compromised reform. It contains significant sacrifices — many obvious, many subtle and almost certainly many yet unnoticed – that in turn make it unclear whether or not the bill should be called “reform” at all.

Context here is critical, given that many think it is possible to stop the June 1 reauthorization of Section 215 in the House of Representatives, and that USA FREEDOM’s passage would cost reformers that opportunity.

Here, I’m going to look at one of the purported benefits of passing this bill, which, in theory, should earn the reformers’ support only if it and other benefits outweigh its sacrifices. More generally speaking, just like last year, the supposed steps forward aren’t nearly enough to justify supporting USA FREEDOM.

The amicus curiae provision is still utterly broken

Reformers who supported Democratic Vermont Sen. Patrick Leahy’s bill last year wisely noted that it achieved certain changes that would be impossible to get through litigation or through a simple sunset of the authority. This is true, and one example is having an independent voice before the secretive Foreign Intelligence Surveillance Court – the one that approves some of the government’s mass surveillance, as well as accepted intelligence agencies’ argument that virtually everything is “relevant” to foreign intelligence investigations.

But how valuable is this provision? In both the Senate bill last year and the one this year, the establishment of an entity with some right to participate in these secret proceedings is considered a serious accomplishment.

It isn’t.

Not just because the real argument should be about whether any secret court should exist in America – especially one that can privately redefine what the law itself means – but also because the amicus curiae (or special advocate, as the Senate bill last year called it) is blindfolded. Section 401, after establishing what should be a “win,” includes the following: “(D) Rule of construction. Nothing in this section shall be construed to require the Government to provide information to an amicus curiae appointed by the court that is privileged from disclosure.”

Privileged information isn’t limited to attorney-client privilege or attorney work-product, which arguably should be kept from an independent advocate. (I say “arguably” because in this case, who is the client? If it’s the public, shouldn’t the public know?) Other privileges could also be used to keep information from the amicus: for instance, the executive privilege and the state secrets privilege. It’s unclear to me how they’d be applied in this context, but shy of a truly brave amicus (which the Foreign Intelligence Surveillance Court can choose to or not to appoint) ready to appeal an assertion of these or any other privilege, this appears to render what should be a “win” illusory at best.

This isn’t the only problem with the bill, but if the House Judiciary Committee doesn’t fix them, this supposed reform should not be considered a step forward. Indeed, because of the illusion of reform they (and other parts of the bill) present, it maybe a step backward. Politicians will claim they fixed mass surveillance (without touching other legal authorities that supposedly authorize mass surveillance, like Section 702 of the FISA Amendments Act of 2008 or Executive Order 12333) and the intelligence agencies will claim they are transparent. Given the amicus (or special advocate) is about adding transparency and accountability – and doesn’t itself do anything to rein in surveillance or the intelligence agencies’ abilities – it should be fixed without giving up any more ground.

If not, Congress will have acquiesced to the secrecy and unaccountability of a secret court for another four and a half years.


To add context, here is a quick list of some sacrifices made by all versions we’ve seen of USA FREEDOM:

  • Intelligence agencies will have clearly won the idea that reform negotiations can only come with extension of Section 215, and here it would be extended until December 2019 (Section 704).
  • It will likely cost reformers the court challenges that are making their way to the Supreme Court. This is because the cases’ strongest arguments are that the government has misinterpreted the definition of “relevance” within the PATRIOT Act, which would be modified by USA FREEDOM. However, constitutional challenges, which are harder — but not impossible — to win, would persist. (Title I.)
  • USA FREEDOM grants greater legal immunity to companies that comply with mass surveillance (Section 105) – greater even than the PATRIOT Act, which requires compliance be in “good faith.”50 USC 1861(e))) Because companies are one of the few entities that have standing to challenge mass surveillance, this is particularly dangerous, because it relieves the pressure on them to protect their customers’ privacy.
  • It also gives compensation to companies that comply with government surveillance (Section 106). Yes, this means that, unlike before, companies will be paid to supply the government with innocent people’s information, even if they do so fully knowing it’s illegal. And said innocent people will have no legal recourse against the companies.