EFF Supports New FREEDOM ACT, But (!?!)

The New USA FREEDOM ACT: 

Questions, Concerns, and 

EFF’s Decision to Support the Bill

Ever since the Snowden revelations, honest (and some dishonest) efforts have been made in Congress to try to scale back at least some of the NSA’s spying.  It’s a complex problem, since the NSA has overstepped reasonable bounds in so many different directions and there is intense secrecy surrounding the NSA’s activities and legal analysis.

The bill with the best chance to make some positive change currently is the Senate version of USA FREEDOM Act, a new piece of legislation with an older name.

After extensive analysis and internal discussion, EFF has decided to support this bill. But given the complexities involved, we wanted to lay out our thinking in more detail for our friends and allies.

Senator Leahy introduced S. 2685, the USA FREEDOM Act of 2014, last week. It’s clearly a vast improvement over the version of the bill that passed out of the House.1 It would also be an improvement over current law.

But it still has problems, some of which are inherent in any attempt to legislate in the shadow of national security. Specifically, we’ve seen the NSA and the intelligence community twist common words into tortured and unlikely interpretations to try to excuse their surveillance practices. We’re worried that, for all its good intentions, the bill may leave room for the intelligence community to continue to do so. Due to the secretive nature of surveillance, it will be difficult to ensure the intelligence community is not abusing its powers. And finally, this bill is a compromise between those who seek to reform the NSA and those who want to defend the status quo. Those compromises often fell short of what we’d hope for in comprehensive NSA reform.

Bad Faith Interpretations of the Bill’s Language

We now know that the NSA plays word games when it comes to interpreting the Foreign Intelligence Surveillance Act (FISA) and the Constitution. Words like “collect” and “target” have meanings for the NSA that no ordinary person would use. Words like “relevant” have been stretched far beyond any reasonable interpretation. 

The new USA FREEDOM Act is also vulnerable to this kind of misuse. The language has wiggle room and ambiguity in places that we tried to get rid of, and failed. It also likely has language that can be misused that we haven’t yet recognized.  While the clear intent of the bill is to end bulk collection of call detail records and bring more transparency to the NSA, the government could attempt to argue in bad faith that the bill does not require either.

Folks have begun pointing out where this is possible and we think this effort should continue. Specifically, some have emphasized that the bill only has extra restrictions for “daily” call record collection, like the collection the government currently does. They’ve argued that this means that the government can continue bulk collection if it simply crafts its request for call detail records, say, on a weekly or yearly basis. This interpretation of the legislation doesn’t take into account the additional restrictions imposed on any requests not made under the new language, but it’s still concerning.

Others have pointed out that the government can still get a second set of call detail records (a second “hop”) if there’s a “direct connection” to the first specific selection term. But the term “direct connection” is undefined. Some have noted that the government could interpret “direct connection” to include the physical proximity of two mobile devices, or being in someone’s address book, since both might be called “direct”—yet the bill is trying to stop that sort of surveillance by association.

While we do believe that the intent of the bill is to disallow either of these scenarios, some additional clarity in the language would really help here, especially given the secrecy discussed below.

We hope the entire community of people concerned about mass surveillance will join us in poring over this bill and helping to identify other areas where additional clarity is needed.

Secrecy May Still Undermine Accountability

We’ve only gotten this far in ensuring that ordinary people know how pervasive surveillance really is due to whistleblowers like Mark Klein, William Binney, Thomas Drake, J. Kirk Wiebe, Edward Snowden and countless anonymous whistleblowers, as well as the tenacious efforts of litigators under the Freedom of Information Act. Intelligence agencies like the NSA and FBI have fought hard to maintain as much secrecy as possible, only opening up when cornered.  

While there is significant new transparency required by the USA FREEDOM Act, much will remain secret, and some of those secrets may undermine our ability to know whether the bill has actually achieved the reform it is aimed at. Some government secrecy in national security investigations may be merited of course, but even 20 years ago, Senator Daniel Moynihan documented the problems arising from the government’s rampant over-classification.

Even after USA FREEDOM, the FISA Court (FISC) will continue to approve requests in secret. While we are pleased that the bill creates a panel of special advocates to argue for civil liberties in the FISC, more is needed—and even these advocates have limitations. For example, the advocate role is limited and advocates can only be appointed upon the government’s approval. In addition, special advocates have security clearance restrictions—an opportunity for the Executive branch to block an advocate by denying a clearance or arguing an advocate doesn’t have adequate clearance to access certain documents.  Perhaps most concerning, the intelligence community will continue to determine what legal interpretations by the FISC will be made public.

By its very nature, national security law is hard to assess because of the secrecy that surrounds it. USA FREEDOM is no exception.

Compromises in the USA FREEDOM Act

This bill is a first step. And it’s a small step because Senator Leahy’s goal was to introduce something that had a real chance of passing this Congress and not getting vetoed by President Obama.

Some of the compromises in this bill are obvious. It does less than the original USA FREEDOM. It doesn’t simply outlaw bulk collection, as EFF has long advised. It doesn’t give the Privacy and Civil Liberties Oversight Board subpoena authority. It has special advocate and declassification provisions that will help transparency, but they aren’t as strong as the original USA FREEDOM Act. It doesn’t address bulk Internet collection under Section 702 of the FISA Amendments Act substantively at all and it pushes out the sunset date on Section 215 from 2015 to 2017, when the FISA Amendments Act is scheduled to sunset.

But some of the compromises in the bill are less apparent, especially if you haven’t been poring over NSA spying legislation. We are also particularly concerned with how the bill deals with the FBI. The FBI is exempt from Section 702 reporting, and the bill appears to provide a path for the FBI to get permanent gag orders in connection with national security letters.  

Why We Support the Bill, Even with Our Concerns

Despite these concerns, EFF supports the USA FREEDOM Act as a first step in spying reform. We believe it ensures that the government will be collecting less information about innocent people, that it creates an independent voice to argue for privacy in the FISA Court, and that it will provide modest transparency improvements that will assist in accountability. The second and third of those would not be possible through litigation alone. 

What’s more, we believe that this bill will help move comprehensive reform forward. It will show that the growing global community concerned about mass surveillance can band together and get legislation passed.  We know that the original Foreign Intelligence Surveillance Act was not enacted until 1978, three years after the Church Committee was formed. We are in this for the long haul.

Some wonder why we’d support legislation when we have litigation proceeding against Section 215 call records surveillance that could be sent back for further review if the law passes. While we’re very confident in our case, litigation is a long process and we’ve seen that progress in the courts can be undermined by subsequent legislation— our original case against AT&T was killed by Congress when it passed the FISA Amendments Act. So if we can end the telephone records collection in Congress, it may be a more lasting win. 

Finally, there is value in Congress reacting to the clear consensus: Americans of all political stripes think the NSA has gone too far—they do not support indiscriminate surveillance. Congress is where that political consensus should be expressed.

Your Support

This post lays out why we decided to support USA Freedom, and also many of our concerns. We made our decision based on the current version and we will not hesitate to pull our support if the bill gets watered down. 

But we also support efforts of the community to raise these or other concerns and push Congress to clarify and plug the holes. Since Congress is in recess we have a month to go before this has any chance of getting to the floor, and we’ll be continuing to scour the bill with a fine-toothed comb. We look forward to assistance.  We also respect those who have decided that they cannot support this bill without further changes, even significant ones.

In the meantime, if you agree with us that USA FREEDOM is a reasonable first step in the long project of surveillance reform, find out where your representatives stand and let them know what you think by tweeting at them, sending an email, or even setting up an in-district meeting over the Congressional recess.

Written by Cindy Cohn (ex-Pres. National Lawyers Guild) and Nadia Kayyali

• 1.Some background may be helpful here: When USA FREEDOM was originally introduced in October of 2013, EFF called it a floor, not a ceiling. We supported the bill, but cautioned that it was just a first step towards NSA spying reform and still had some problematic pieces. But we were hopeful because it had bipartisan support in both the House and the Senate. Most importantly, we believed that it could start to address intelligence agency overreach.
  Unfortunately, months later, a drastically altered bill was introduced as a manager’s amendment in the House of Representatives. We made it clear that this bill, the result of political compromises, never earned our support. It passed out of the House as H.R. 3361. The current Senate version of USA FREEDOM is not as strong as the original version, but far stronger than what passed out of the House.

Related Cases 
Jewel v. NSA, First Unitarian Church of Los Angeles v. NSA