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

Secret Holes in Freedom Act

Our Privacy and Liberty Still at Risk, Even if Leahy NSA Bill Passes

Monday, 11 August 2014 10:15By Elizabeth (Liza) Goitein, Brennan Center for Justice | News Analysis

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After a brief hiatus, legislative reform of the NSA’s bulk collection program appears to be back on track. Thanks to skillful negotiations on the part of Senator Patrick Leahy, Democrat of Vermont, and other cosponsors, the version of the USA Freedom Act that was unveiled in the Senate last week restores many of the protections that House leadership and administration officials stripped out of the House version in secret, last-minute talks. Most notably, the Senate bill clearly would prohibit the bulk collection of Americans’ telephone records and other types of information.

And yet, even if the Senate version becomes law, Americans’ private information will remain vulnerable—under both  the domestic programs addressed by the bill and other, much larger, programs nominally targeted at foreigners. As Leahy acknowledged when introducing the bill, much more remains to be done to protect the privacy and civil liberties of law-abiding Americans.

The good news first: The Senate bill would require any collection of business records to be based on a “specific selection term,” such as a name or account, that narrowly limits the scope of collection “to the greatest extent practicable.” The bill includes a non-exhaustive list of selection terms that are deemed too broad, including area codes, zip codes, and names of telecommunications companies. The Foreign Intelligence Surveillance Court (FISA court) would have to approve the selection terms in advance and assess whether the records would be relevant to an authorized investigation. These provisions would not only end the NSA’s bulk collection of telephone records; they would preclude any analogous program for Internet, financial, or credit records.

The bill also leans on the Executive branch to be more transparent about surveillance activities. It would require the director of national intelligence to make public either a redacted version or a summary of any significant opinion by the FISA Court. It also would require far more detailed statistical reporting on the use of surveillance authorities. For the first time, the government would publicly report the number of individuals affected by various surveillance programs—including, for most programs, a separate estimate of the number of affected Americans. And the bill would establish a panel of paid privacy advocates who could appear in FISA court proceedings, which currently take place with only government officials present.

In these and many other respects, the bill should lead to a marked improvement over the status quo. But the operative word here is “should.” The bill’s definition of “specific selection term” is necessarily imprecise. Congress would not limit the executive branch to obtaining the records of named suspects, because in some cases the very reason for seeking the records will be to identify the suspect —for instance, where the FBI has a tip about a plot to bomb a particular airliner and seeks to obtain the passenger manifest. Rather than impose an exact but too-strict definition, the bill attempts to focus collection through phrases like “narrowly limit” and a list of terms that would not be narrow enough.

Although the legislative intent behind this approach is clear, the Executive branch could exploit the absence of a bright-line restriction to engage in collection that is far broader than necessary, even if it falls short of “bulk” collection. It would not be the first time the executive branch twisted Congress’s words with the FISA court’s blessing.

Under the bill’s requirement to disclose significant FISA court interpretations, the public should know if such a perversion of Congressional intent has taken place. But here, too, there is the potential for the Executive branch to disregard the spirit of the legislation. The bill allows the Executive branch to decide which court opinions meet the bill’s definition of “significant” and how much information may be disclosed consistent with national security. In theory, nothing would prevent the director of national intelligence from releasing an opinion with every sentence but one redacted.

Even assuming faithful implementation, the bill leaves some holes. It specifies no time limits for when intelligence agencies must discard information about Americans that has not been deemed to have any foreign intelligence value. It implicitly accepts the administration’s specious claim that it cannot even estimate the number of Americans whose communications are swept up under a program that targets foreigners’ calls and e-mails. And it allows the FISA Court to determine when, if ever, it wishes to hear from the panel of privacy advocates. 

The bill also creates a new telephone records collection program. While the executive branch would not be allowed to collect phone metadata in bulk, it would be entitled to obtain records, not only of suspected terrorists, but of anyone in contact with them – an automatic second “hop.” Phone companies would produce all such records to the government on an ongoing basis, and the resulting database could be kept indefinitely and queried for any purpose. Given that two independent, presidentially-appointed committees concluded the telephone metadata program had little value, it is unclear, at best, why even a scaled-down version of it is needed.

Of course, the perfect should never be the enemy of the good—and on Capitol Hill, where the perfect is generally off the table, the good should not be the enemy of the better. But the opposite is true as well. A bill that makes improvements to the status quo, even significant ones, can backfire if it dissipates the incentive for additional reform.

That risk deserves particular attention here, where so many of the government’s most intrusive surveillance practices have been left to another day. The bill’s architects deliberately deferred substantive reform of Section 702 of the FISA Amendments Act, a 2008 law that allows the NSA to collect the content of Americans’ international communications without a warrant.

Nor does the bill tackle the overseas collection of communications under Executive Order 12333, which operates with no involvement of the FISA court and little oversight by Congress. If bulk collection is the tip of the surveillance iceberg, alarming because of its visibility, these other programs are the looming underside.

Reaching consensus on how to reform these massive, poorly understood programs will be challenging, to say the least. Leahy and his co-sponsors were right not to hold other reforms hostage. But if the bill becomes law, lawmakers and the public must not betray its promise by assuming that the balance between our liberties and our security has been restored.

This piece was reprinted by Truthout with permission or license. It may not be reproduced in any form without permission or license from the source.

ELIZABETH (LIZA) GOITEIN

Elizabeth (Liza) Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program, which seeks to advance effective national security policies that respect constitutional values and the rule of law. Before coming to the Brennan Center, Ms. Goitein served as counsel to Senator Feingold, Chairman of the Constitution Subcommittee of the Senate Judiciary Committee. As counsel to Senator Feingold, Ms. Goitein handled a variety of liberty and national security matters, with a particular focus on government secrecy and privacy rights. She also worked on matters involving immigration, juvenile justice, sentencing, prisoner re-entry, and First Amendment issues. Previously, Ms. Goitein was a trial attorney in the Federal Programs Branch of the Civil Division of the Department of Justice.   

Ms. Goitein’s writing has been featured in major newspapers including The New York Times, The Washington Post, Boston Globe, the San Francisco Chronicle, Wall Street Journal and the Philadelphia Inquirer, as well as prominent outlets such as Roll Call, the National Law Journal, and the Huffington Post. She has appeared on national television and radio shows including the The Rachel Maddow Show, All In with Chris Hayes, PBS News Hour and National Public Radio’s Morning Edition and On The Media.

Ms. Goitein graduated from the Yale Law School in 1998 and clerked for the Honorable Michael Daly Hawkins on the U.S. Court of Appeals for the Ninth Circuit.