The countdown begins: Just two weeks before sections of the Patriot Act expire, the U.S. House of Representatives overwhelmingly passed a revised bill of the USA Freedom Act in an effort to limit government spying through phone records.
The House passed the bill in a landslide 338 to 88 bipartisan vote, with the White House’s endorsement. The modified USA Freedom Act now on its way to the Senate would ostensibly end the National Security Agency’s telephony metadata collection program as written under section 215 of the Patriot Act. Reforming government surveillance practices has been a chief concern since NSA whistleblower Edward Snowden’s 2013 document leaks, but Congress has failed to pass meaningful legislation.
Congress has been here before, but things could be different now that legislators must act by June 1 and an appellate court ruled the NSA’s program was illegal last week. This week’s USA Freedom Act is far from a slam dunk from a privacy standpoint, and instead is heralded as a first step compromise by privacy advocates with room for improvement. Here is what Americans stand to gain — and lose — from a bill the Senate will either quickly pass or send the U.S. into new legal territory by blocking it.
Reigning In The NSA
Sections 215, 701 and 702 are the three main, controversial provisions of the Patriot Act that give the government broad access to civilian communications. The USA Freedom Act only addresses section 215, which is responsible for the dragnet collection of Americans’ phone data. If passed, the bill would do the following:
Limit intelligence agencies access to communications data. Section 215 allowed the NSA to collect metadata on America’s communications without a warrant even if there wasn’t a clear relationship to a terrorism suspect. With Senate approval, the bill would make it so the NSA would only be allowed access to records of individuals “two hops” away from the intended target, such as the records of an acquaintance of an acquaintance of a suspect. The bill would also require intelligence agencies to get a warrant before requesting such data, and bans the government from storing it, a task left for telecommunications companies.
Increase transparency to secret FISA court rulings. The USA Freedom Act makes good on one of President Barack Obama’s promises to appoint a civil liberties advocate to Foreign Intelligence Surveillance Court hearings to challenge possible privacy violations.
“We’re in this mess because the opinions stayed classified and behind secret doors. Public will now be able to see orders from the court,” said Mark Jaycox, a legislative analyst for the Electronic Frontier Foundation in San Francisco. Major FISA court decisions would be made public under the bill, and the court is encouraged to not only use the advocate but give he or she broad access to relevant documents, he said.
‘This Is Not Comprehensive Reform’
Privacy advocates readily admit that the House’s USA Freedom bill has some holes, but it’s a worthy compromise because it opens the door for tougher legislation down the line.
“It’s as good as we’re going to get out of this Congress,” said Ken Gude, senior fellow and national security policy expert for the Center for American Progress in Washington, D.C. But despite willingness to compromise there are some notable flaws that will have to be addressed after the June 1 deadline.
Metadata from Skype calls can be collected. “[The bill] modernizes the Patriot Act to codify some of the modern practices,” said Evan Greer, campaign manager for Fight for the Future, a Boston-based internet advocacy group that fights for policies like net neutrality and staunchly opposes government spying online.
Online voice communications, including VoIP (voice over IP) services and mobile apps — FaceTime, Skype Vonage phone service, Google Voice and Hangouts, and Skype — can now be scooped up in government data requests. Those additions “open new doors” to mobile and internet-dependent technology, Greer said, ultimately defeating the limitations put in the bill.
“The area where the bill claims bulk collection, it really changes the way the government searches for things like everyone who has ever called this number…Congress has an actual opportunity to do something amazing and that’s to do nothing. If they really cared about our privacy they would let [sections of the Patriot Act] expire.”
Jaycox disagreed saying that while the bill included language to allow access to new VoIP communications, the “two hops” provision as well as the inclusion of a FISA court advocate curtails the amount of information the government gets.
“Overall, it certainly decreases amount of data government can get,” he said. “There can be debate as to how much, but with the definitions and with the methods the government is forced to use, the information at the government’s hands is lessened.”
FISA can decide to not use a civil liberties advocate and hide information by classifying it under state secrets. While summaries of notable FISC hearings and decisions would be publicly available, the court could choose not to use an advocate and decide not to reveal documents or information if one was used. That basically keeps things the same, Greer said, and allows the court to make decisions unchallenged.
The EFF admits previous versions of the bill were stronger on this issue, allowing the civilian advocate to indiscriminately challenge FISC. But in the House bill, the final decision to use an amicus is left to the court, however, that decision is public record.
“The bill forcefully says if [the government] is going to engage in anything new, you are highly recommended to use an amicus,” and share access to necessary documents, Jaycox said. “The court could decide whether to use an advocate, but it’s public record when an amicus is used or not along with the summary judgment.”
Moreover, the court would be under “tremendous public pressure if they choose not to use an amicus,” he said.
Tech companies are compensated for trading data with the government. Companies such as Facebook, Google, and Microsoft that were part of the NSA’s PRISM data-sharing program receive incentives for cooperating with government requests. That condition is not new, but it goes unchecked in the current bill.
Reimbursement is common “whenever you have a surveillance authority,” Jaycox said. “All of these companies get reimbursed or compensated for government spying requests, and likely have other contracts with the government. At minimum, they are mandated by a court,” so there’s no way around cooperation.
Extends the penalty under material witness law for suspected terrorism. The bill includes a rider that lengthens the minimum mandatory sentence from 15 years to 20 years for individuals sentenced for material support to terrorism. The move is unrelated to the other privacy concerns addressed in the bill and would not be supported by surveillance reform advocates on its own, CAP national security fellow Ken Gude said.
What To Expect Come June 1 And Beyond
Senate Majority Leader Mitch McConnell (R-KY) has been put in a political vise. Despite efforts to reauthorize the NSA’s phone metadata program and previous success tanking reform efforts, McConnell is boxed in by legal precedent and an immovable deadline.
Section 215 of the Patriot Act will expire without Congressional action. That means if McConnell moves for a filibuster in the Senate or fails to pass the bill by June 1, no form of the telephony metadata program will exist and Congress will have to introduce new legislation to reinstate it. Also, any attempt to filibuster the bill would add four days to an already packed Senate calendar, Jaycox said, meaning McConnell would be advised to move on the bill by early next week.
If the provision is allowed to expire, existing warrants for data queries that have already been approved by the FISA court would be able to run until their term expires — even if the date is after June 1 — but could not be renewed, Gude said. Moving to extend the program to buy more time also wouldn’t bode well in light of last week’s court decision, he said.
Moreover, if the Senate blocks the bill and Congress reauthorizes the program, the government likely would have to appeal the Second Circuit Appeals Court decision and take the issue to the U.S. Supreme Court. Should the Senate pass the USA Freedom Act with amendments, which is what privacy advocates are hoping for, a temporary short-term extension may be granted while Congress confers on the changes.
With such options, it behooves McConnell and the Senate to pass the bill, and all its flaws, to avoid a steeper legal battle down the road.