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Ten things to like about USA FREEDOM: U.S. Senate introduces much-improved surveillance reform bill

10:03am | 29 July 2014 | by Amie Stepanovich, Kayla Robinson

A new version of the USA FREEDOM Act has been introduced in the Senate and is expected to head directly to the Senate floor for a vote by the full chamber. The introduction marks the fourth official version of the USA FREEDOM Act debated by the U.S. Congress.

The original version was first introduced last October in both the House and the Senate, which Access’ supported. A modified version passed unanimously out of the House Judiciary and Intelligence committees, before a much-watered down version was passed by the full House in May. Access has pulled together a full recap of the USA FREEDOM Act and its many iterations.

Among the many improvements in the latest, Senate version of the bill is a definition of “specific selection term” which will halt bulk collection under Section 215 of the USA PATRIOT Act and other related laws. The bill also improves transparency and accountability for certain U.S. surveillance authorities and mechanisms.

Given the significant improvements in the new version of the bill, Access has issued a statement urging lawmakers to quickly approve the bill in its current form. Access had previously pulled support for the USA FREEDOM Act in the House in response to edits made behind closed doors in consultation with the intelligence community. In supporting the new version of the bill, Access joins a growing choir of companies and organizations, including the New York Times Editorial Board, which published a glowing endorsement of the bill on Monday.

Access notes that passage of the USA FREEDOM Act would represent the first victory in the war to achieve comprehensive reform of the U.S. intelligence community, and overbroad surveillance practices around the world. For example, a former Department of State official recently noted that surveillance under Section 215 paled in comparison to that taking place under Executive Order 12333.

Below we highlight ten ways in which the new USA FREEDOM Act improves upon the House-passed text:

1. Definitively ends bulk collection of U.S. persons’ telephone records.

Unlike the House-passed version, Section 107 places meaningful limits on whose call records the government can target. The House-passed version could have permitted entire entities, like anyone using Verizon or anyone in a given area code, to serve as “specific selection terms,” which effectively would have allowed the continuance of mass surveillance under Section 215 of the Patriot Act (the “Business Records” authority) and FISA Title II (the Pen Register and Trap and Trace authority).

The Senate bill fixed the House’s vague and overbroad language, and will stop the practice of bulk collection of U.S. persons’ telephone metadata under USA PATRIOT Act Section 215, a program of dubious legality and constitutionality. This is a step toward ending mass surveillance, which is inherently arbitrary and disproportionate.

2. Increases mandatory government reporting on surveillance practices.

This bill improves upon the House-passed version and current law by augmenting mandatory government reporting about surveillance practices. Section 601 increases mandatory reporting by the Attorney General to the Congressional Intelligence and Judiciary Committees on Section 215 activities.

Section 602 also mandates increased reporting by the Director of National Intelligence on FISA activities (including FAA Section 702 activities). These reports must now include the number of individuals whose communications were collected pursuant to each of seven FISA sections. This is an important change, as the government currently only has to provide the number of surveillance orders issued, which can obfuscate the total number of users targeted by these orders. However, because of the intelligence community’s peculiar definition of “collection,” meaning the information has to be received by a human employee in an ‘intelligible’ format, the numbers could still be misleading in regard to the true scope of surveillance activities.

3. Allows the private sector to report about surveillance activities impacting users.

Under Section 603 of the new version of USA FREEDOM, those subject to surveillance orders (like telcos and ISPs) will be able to release much more detailed information about the number and kind of orders issued for user information. The Senate bill permits more granular semi-annual reports in ranges as small as 1-100, and decreases mandated delays in reporting. The public still won’t see exact numbers for any of these orders, but will have a better picture than the prior version’s reporting provisions would have permitted.

The Senate bill says that nothing prohibits the government and anyone subject to a surveillance order from jointly agreeing to additional transparency reporting, which allows for the possibility that more surveillance information could be publicly reported. This increased reporting latitude could further the recent trend toward granular transparency reporting by telcos, like Verizon, and internet platforms, like Google.

4. Does not give congressional approval to controversial dragnet surveillance tactics.

The House-passed bill (H.R. 3361 Sec. 301) appeared to codify controversial “about” searching, which would have expanded the government’s current legal authority to collect communications only to or from a target. The Senate removed that provision, which dealt with minimization procedures under Section 702. While this change means that Congress no longer appears to be condoning the practice of “about” searching, it also means that this bill does little to affect Section 702 reform.

5. Includes modestly increased reforms to the Foreign Intelligence Surveillance Court.

Section 401 version of the bill slightly expands the section providing for outside counsel (“special advocates”) to argue against the government when a surveillance order presents “novel or significant” interpretations of the law, or requires technical expertise. A new section provides for rapid appointment of at least five of these special advocates in consultation with the Privacy and Civil Liberties Oversight Board (PCLOB). However, it is still largely at the discretion of the court whether to appoint a special advocate in any particular proceeding.

Like the House-passed version, Section 402 of the Senate bill provides for required declassification of FISC opinions that involve a significant construction or interpretation of law, including any new construction or interpretation of “specific selection term.” As the House version before it, the Senate bill unfortunately places control over declassification of important FISC decisions in the hands of the intelligence community, as the Director of National Intelligence (DNI) rather than the Attorney General will lead the declassification process and can choose to release heavily redacted opinions or legal summaries in certain circumstances. However, the Senate bill contains much more detailed guidelines concerning what constitutes a “significant construction or interpretation” triggering the declassification process, leaving less up to interpretation.

6. Restores minimization requirements for the pen register/trap and trace authority.

The Senate bill strengthens privacy protections under FISA Title II by providing for judicial review of the government’s compliance with privacy procedures either during the installation of a pen register or trap and trace device or before its use is concluded.

Section 202 also contains a rule of construction ensuring that the minimization requirements it outlines for pen register and trap and trace surveillance set the baseline, rather than the high-water mark, for privacy protections. All of the protections apply to pen register or trap and trace devices that are installed both under normal or emergency procedures.

7. Limits the authority to collect and retain call detail records.

Section 101, pertaining to collection of call detail records, limits use of the authority to instances in which there is a reasonable suspicion that the specific selection term used is associated with “international terrorism.” This is an improvement over the House-passed version, which only required that the term be connected with a foreign power, or agent thereof.

8. Doesn’t force providers to retain user records.

Although Senate intelligence leaders, including Dianne Feinstein, seemed poised to fight for such a provision during a June hearing on the bill, the Senate bill does not contain a so-called “data retention mandate”— a provision requiring private entities to preserve user records.

The Privacy and Civil Liberties Oversight Board (PCLOB) opposed a data retention mandate in its report on Section 215, arguing that such a provision “would pose difficult questions of liability, accountability, oversight, mission creep, and data security, among others.” The Court of Justice of the European Union recently struck down the European Data Retention Directive after finding that the directive seriously interfered with fundamental rights. Companies, including Verizon, are also strongly against data retention mandates, which effectively outsources law enforcement functions to private actors and turns all citizens into suspects.

Access opposes all data retention mandates, as these laws can lead to abuse, theft, or other unlawful transfers of personal information, and seriously risk chilling free expression.

9. Brings U.S. law closer in line with international human rights norms.

The Senate’s bill will move the U.S. closer toward conformity with the International Principles on the Application of Human Rights to Communications Surveillance. The Principles, which help assess how government surveillance practices and policies comport with human rights norms and obligations, have been cited by the United Nations Office of the High Commissioner for Human Rights (OHCHR) and by President Obama’s Review Group on Intelligence and Communications Technologies.

For easy comparison, Access has published an infographic demonstrating how the different versions of the USA FREEDOM Act, including the Senate bill, matchup against the Principles.

10. Represents the first step in comprehensive reform of the U.S. surveillance state.

The Senate bill limits some surveillance authorities, provides for increased transparency reporting, and seems responsive to the questions civil society raised about the House version. However, in spite of its many positive aspects, this bill is not a panacea.

Most significantly, the bill does not do enough to protect the rights of non-U.S. persons. Further, the bill does little to reform surveillance under Section 702 of FISA, and does absolutely nothing to address surveillance conducted to Executive Order 12333, legal authorities which threaten the rights of users around the world.

Access urges swift passage of the Senate’s version of USA FREEDOM, and will continue to advocate for further legislative reforms of the U.S. surveillance state that protect the rights of all users.