Here’s What The NSA Could Still Snoop On Under The New USA Freedom Act


The U.S. House of Representatives passed a modified version of the USA Freedom Act Thursday to rein in the government’s bulk surveillance programs. But the bill on the way to the U.S. Senate only somewhat curtails intelligence agencies’ power, giving them extra leeway to collect vast amounts of emails, phone records and other personal communications based on broad criteria.

The bipartisan bill that passed 303–121 was altered just weeks after House Judiciary and Intelligence Committee members unanimously agreed on a stricter version that allowed for greater transparency from Internet companies such as Google and Facebook, and outlined specific criteria for data collection. But after a meeting with the White House, members in the House’s Rules Committee amended the bill so that — while it ends dragnet phone collection data — it also lets the U.S. National Security Agency (NSA) and other intelligence agencies collect and store large amounts of data with some loosened restrictions.

“The bill was watered down significantly,” Robyn Greene, policy counsel for the New America Foundation’s Open Technology Institute in Washington, D.C., told ThinkProgress. And there’s no clear definition that tells the public what information will be collected under the law, she said.

The House changed the government’s criteria for collecting information on a unique person or account to broader terms. “It’s not fair to say that this bill doesn’t do anything; it does. But the [bill] has allowed for more collection than what was imagined before [the revisions],” Ken Gude, senior fellow at the Center for American Progress in Washington, D.C., told ThinkProgress. “It opened up the prospect to collect data from more than just specifically identified individuals.”

As is, the bill allows the NSA and other intel agencies to seize all emails from an email service company such as GMail, every transaction from a particular bank, all calls made in a certain area code, Greene said. Under the bill, the NSA could ask for records from an entire state. And instead of letting the government home in on communications to and from a suspect, the NSA can collect, keep and use information that’s simply about a target. That could mean a conversation mentioning the target’s name by people who aren’t suspected of criminal activity could be kept for surveillance.

“Yes, it does end the bulk collection of everyone but it does allow for the bulk collection of a subset of everyone,” Gude said. “Even if it was a large group of individuals [under surveillance], they were specific. [As the bill is written,] you can make the limiting factor so broad that you can target a large number of people.”

The House bill also weakened transparency requirements for companies under the NSA’s PRISM data-collection program implicated in the Edward Snowden leaks last year. In the original revision, companies in that program such as Facebook, Microsoft and Yahoo could have released the number of surveillance requests they receive, by which agencies and the number of accounts that were affected (rounded to the nearest thousand). Now, that information breakdown is approved for all other programs except those under title 7 — the PRISM program, Greene said. “That’s the program we know the least about and we need to know how the information is being used.”

Since the Snowden leaks in 2013, tech companies have been pushing for the freedom to show the public what type of information the government requests. Facebook’s Mark Zuckerberg called the government a “threat to the Internet” in March after news reports surfaced about how the NSA masqueraded as a Facebook server to infect suspects’ computers with malware and extract files. Google also pushed for the declassification of data requests. If finalized, the House bill would allow companies to release request information, but it might not be as detailed for Internet programs, Greene said.

Despite earning the White House’s endorsement, the House’s last-minute changes caused civil liberties groups and legislators to pull their support. Human rights advocacy group, Amnesty International said in a statement, the bill “fails to deliver serious surveillance reform” and called on the Senate to push for more transparency and “a clear, unambiguous ban on mass spying.”

“To call this a disappointment is an understatement,” Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security Program said in a statement. “It’s particularly galling that the Administration objected, in secret, to certain provisions that would have allowed companies to report more detailed statistics about government requests.”

Rep. Justin Amash (R-MI), who helped draft the original Freedom Act, said he would vote no on the bill because the version the House passed “doesn’t look much like the Freedom Act.” In a Facebook post Thursday morning, Amash said the bill only “claims to end ‘bulk collection’ of Americans’ data only in a very technical sense,” and “green-lights the government’s massive data collection activities that sweep up Americans’ records in violation of the Fourth Amendment.”

Rep. Adam Schiff (D-CA), however, told ThinkProgress in a phone interview that the bill, which closely aligns with President Obama’s proposals announced earlier this year, was a great compromise, and moved in the right direction even though it was imperfect. “Certainly the bill can be improved,” he said. “I think it was a good compromise between the judicial and intelligence committees,” with provisions that let companies store their own data instead of putting it in the government’s hands.

Schiff wasn’t sure whether the bill would sail through the Senate but said he hopes they’ll add more protections such as a special advocate that would be appointed when a request raises Constitutional issues. Gude also expects the bill to face some opposition from the Senate: “I think the senate will look dimly on this change. And that what they will do is restore the original intention and generally end the widespread collection.”

Congress has until 2015 to come up with a solution to the NSA dragnet surveillance programs. In the meantime, the government can still make bulk data requests but only in 90-day increments approved by the Foreign Intelligence Surveillance Court. The NSA is also still allowed to collect mass amounts of phone data until next year but can’t access it without a court order.