On Tuesday, Sen. Patrick Leahy introduced the USA Freedom Act, a bill that would completely end mass surveillance under Section 215 of the Patriot Act – a loophole in the law that effectively let NSA agents scoop up metadata and other information about American citizens. If this sounds at all familiar, it’s because earlier this summer, the House of Representatives also passed the USA Freedom Act – after a House committee completely gutted any teeth it had and also added in new loopholes that would let bulk surveillance continue unscathed. Leahy’s bill looks much closer to the one that many civil liberty groups initially endorsed before the House had at it, and it’s expected to go straight to the Senate floor, where it will have less chance of being ruined by back room White House dealings or in closed committee hearings.
Andrea Peterson details the bill’s contents:
The legislation would curb bulk collection of domestic phone records, provide new transparency measures and add an adversarial component to the Foreign Intelligence Surveillance Court. The Senate bill would replace bulk collection with the ability to collect call record details within two hops on a daily basis when the government can demonstrate a “reasonable, articulable suspicion” that search terms are associated with a foreign terrorist organization under section 215 of the Patriot Act. This would limit the government from being able to broadly collect information by geographic region, such as by Zip code or area code, which critics feared might be the case in the version of the Freedom Act that passed the House earlier this summer. …
Leahy’s new version of the Freedom Act would require the government to report how many individuals’ information has been collected under certain surveillance authorities and how many of those are likely Americans – as well as the number of queries run on Americans in some databases, with exceptions for figures not possible to generate with current technology. It also expands how private companies can publicly report on government requests for information.
Russell Brandom is among the enthused:
Even before the bill was public, it was hailed by the New York Times as “a breakthrough in the struggle against the growth of government surveillance power,” and being named by reformers as congress’s best hope for a meaningful response to NSA overreach. Looking at the bill itself, you can see why. The table of contents is a laundry list of the major NSA authorizations detailed in the Snowden leaks. Leahy’s bill puts major restrictions on the FISA court, pen registers, and business records requests (the method used to collect bulk metadata from phone companies, among other things). It would also add new transparency measures to National Security Letter requests, allowing companies to report how many customers have been affected in more detail than ever before.
But political scientist H. L. Pohlman sees reason for concern:
[T]here is one crucial provision that the civil libertarians that support Leahy’s bill have overlooked. Namely, that the bill includes the same language contained in the House bill that created a “backdoor” authority to collect phone records that evade all the limitations just listed. I noted this provision in a post on this site last May, and called it my “most serious concern” with the House version. … The bottom line is that Leahy’s bill is a continuation of the intelligence community’s efforts to at best confuse – and at worst, mislead – the American people (and perhaps their legislative representatives) through the clever use of legalese.
Similarly, Jennifer Granick notes:
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 US 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.
Meanwhile, Dustin Volz evaluates the the bill’s political future:
[I]t remains unclear if Leahy has the votes in a historically gridlocked Senate that will have most of its attention diverted to the midterm elections when lawmakers come back to Washington. Senate Intelligence Committee Chairwoman Dianne Feinstein has been an influential backer of the NSA’s surveillance programs, and early indications are that she and other defense hawks are less than receptive to Leahy’s new proposal. The California Democrat, according to several sources, wants to push a data-retention mandate that would require phone companies to keep customer data for a certain amount of time that would exceed current requirements set at 18 months. Multiple privacy advocates said such a mandate would amount to a “poison pill” and would likely prompt a cascade of groups to drop their support for the Freedom Act.
However, Leahy has several factors working in his favor. For one, the administration is on board with his version of the Freedom Act, an alliance that could undercut protests from Feinstein’s cohort. And Sen. Ted Cruz is among the 13 original cosponsors, marking a partnership that could shore up GOP support. The Texas Republican and potential 2016 presidential hopeful has been remarkably quiet on NSA spying before endorsing Leahy’s measure.
And Julian Hattem observes, “One way or another, Congress has to pass some kind of NSA bill”:
The legal authority for the agency’s phone records program expires next June. Without reauthorization, that leaves the possibility that the program could be cut off entirely, an outcome that intelligence officials have said would leave the nation vulnerable to attacks. The looming deadline could force lawmakers to put their heads together over the August recess and find a way to advance the bill before the end of the year.