Sunlight and others have had major concerns about the USA FREEDOM Act for some time. Broadly speaking, it isn’t a satisfactory level of reform given what we’ve learned in the past two years about government surveillance and the immense secrecy that surrounds it. Until last week, it’s fair to say some considered the bill a net positive, some a net negative and that no one thought it was enough for reform.
As time has progressed, we’ve seen what began in 2013 as a decent, if tunnel-visioned, compromise chipped away at, including the transparency and accountability provisions, in the name of political viability. Meanwhile, the sacrifices made in the bill in order to secure those modest reforms grew more dramatic. For instance, while USA FREEDOM was always a threat to court challenges (and may have mooted the ACLU’s tremendous court win last week if it had passed last year), there’s been a recent addition that increases the mandatory sentence for material support of terrorism from 15 to 20 years.
Last year the gains were small and the sacrifices great. Now the sacrifices are greater and the gains, as of a week ago, slightly less.
But the proof that this bill may be a step backward in the context of fighting for the sunset of Section 215, backing stronger reform bills or giving the courts more time to rule on surveillance came last week, when the ACLU won a critical case. It’s the first appellate court to rule on whether or not Section 215 can be read as an authorization of bulk collection – and they said, quite resoundingly: “No.”
Now, reform is not done there. The courts cannot give Americans the transparency into surveillance that we deserve. Americans still struggle to achieve standing to challenge the government’s surveillance of them. The Supreme Court could reverse. And, when I asked Bob Litt and other experts at last week’s Advisory Committee on Transparency event whether the FISA Court even has to listen to the Second Circuit, we all seemed to agree that it does not – or at least, not yet. But the ruling could also do more than USA FREEDOM aspired to do, because it interprets the word “relevance” – saying it doesn’t authorize bulk collection – and that word is not only used in Section 215.
All of this is to say that it’s unclear whether the primary goal of USA FREEDOM — the rewriting of Section 215 to stop bulk collection — is already accomplished, and whether USA FREEDOM could open us all up to more secret interpretations and new venues of surveillance.
None of this is aided by the fact that the bill will come up under a closed rule in the House – meaning no amendments can be added – as decreed by leadership, or that leadership and the House Permanent Select Committee on Intelligence sufficiently scared House Judiciary away from improving the bill with an amendment that already passed the House last year with 293 votes. Why did it need to be passed again? Because the amendment was stripped out of the Cromnibus – again, by leadership. This, not the will of Americans or the will of our representatives, has been the single biggest roadblock to reform so far.
That’s the admittedly complicated calculus that advocates and offices are weighing when it comes to USA FREEDOM. And it isn’t an easy decision. We’re happy to see the ACLU and EFF agreeing that USA FREEDOM, as it stands now, is not worthy of support. We understand that others still believe it’s a step forward.
But all reformers believe this bill should be improved – most that it must be before it deserves reformers’ support, and many of us that it should be opposed unless it is dramatically improved (here’s a list of general improvements needed).
It’s unclear whether the version that is going to pass the House is a net gain or loss – especially considering sunset is only one legislative week away. The Senate needs to make significant improvements to USA FREEDOM before we can be sure it’s a step forward.
If you’d like more information on why Sunlight and others oppose the USA FREEDOM Act of 2015, please read the following list below, which breaks down a number of our problems.
Concerns and shortcomings in the USA FREEDOM Act of 2015:
- Accepts the premise that mass surveillance under these programs is necessary, despite the findings of the Congressional Joint Inquiry and the 9/11 Commission to the contrary.
- Effectively continues mass surveillance under Section 215 of the PATRIOT Act through the use of multiple, NSA-supplied “special selection terms,” including the Internet protocol address or cloud storage accounts of entire organizations — in contravention of the Fourth Amendment’s particularized, probable cause-based warrant requirement, and despite the assessment of the President’s Review Group on Intelligence and Communications Technology that the program had zero value and represented a “lurking danger of abuse.”
- Additionally, the term “person” is not defined as “an individual, natural person,” and the bill does not alter the PATRIOT Act’s original definition of “person,” which under 50 U.S.C. sec. 1801(m) means “any individual, including any officer or employee of the Federal Government, or any group, entity, association, corporation, or foreign power.” (pp. 4-6, 11, 15)
- Expands corporate immunity by removing the PATRIOT Act requirement that companies act in “good faith” and provides them with compensation. (pp. 14-15)
- Threatens to render court challenges against spying moot.
- It is unclear whether USA FREEDOM’s limits on Section 215 would strengthen or weaken the Court of Appeals for the Second Circuit’s narrowing of Section 215. By rewriting Section 215, it provides new avenues for surveillance and opens the PATRIOT Act up to new, similarly unlawful interpretations.
- Allows the U.S. government to retain U.S. person call detail records if the government alone determines such records are “foreign intelligence information.” (p. 7, line 20)
- Grants sweeping “emergency” collection authority not tied to an imminent threat of death or bodily harm. (pp. 8, line 11)
- Amicus curiae created in the bill are appointable only at the discretion of the FISC (p. 30), and the government still retains the ability to assert the “state secrets” privilege, thus vitiating the amicus curiae’s effectiveness (pp. 33, line 23).
- Transparency reporting requirements are so numerically broad as to be meaningless and unacceptably exempts the FBI from several reporting requirements. (pp. 66-74)
- Does not address bulk collection under Executive Order 12333 as reported by former State Department official John Napier Tye.
- Does not address bulk collection and retention of U.S. person records under Sec. 702 of the FISA Amendments Act, nor does it retain a previous draft’s language requiring the tracking of U.S. person queries of the Sec. 702 database by government employees, agents, etc.
- Contains no mandatory U.S. person data destruction and audit compliance provisions for information previously collected on U.S. persons not currently the subject of a criminal investigation.
- Contains no protections for national security whistleblowers.
- Contains no requirement that the government provide notice to defendants against whom the government seeks to admit evidence obtained through mass surveillance, nor any requirement to inform the courts in which such evidence would be admitted.
- Contains no bar on the government from imposing “back doors” in electronic devices, software or hardware.
- Does not bar the government from targeting U.S. persons solely on the basis of their use of Internet anonymizing technology, such as Tor.
- Does not address the recently revealed DEA telephony metadata program.
- Does not create a special select committee to investigate the full scope of government surveillance activities against Americans, both known programs and those not thus far disclosed.