Merrily we roll along? A re-cap on USA FREEDOM

There are rumblings that the USA FREEDOM Act, the leading bill in Congress to reform the bulk telephone metadata collection program, will re-appear in the short time between now and the summer recess in August. Reports indicate that key members of the Senate are in conversations with the Obama Administration and there is a possibility that a version of the bill could go directly to the Senate floor for a vote, leaving little time for the public or civil society to comment meaningfully on the proposed text.

As we await the final text that will be voted on by the Senate, we take a look back on where we’ve been, where we’re going, and what remains to be done.

How have we made it here?

USA FREEDOM has already gone through several iterations. The Bill was introduced in both the Senate (S. 1599) and the House of Representatives (H.R. 3361) on October 29, 2013. The original text of the bill included provisions to: end bulk collection of telephony metadata, generally reform Section 215 of the USA PATRIOT Act, create an Office of the Special Advocate to the Foreign Intelligence Surveillance Court (“FISC”), and increase the transparency of the use of certain Foreign Intelligence Surveillance Act (“FISA”) authorities. Access endorsed the bill, and conducted an analysis noting that it moved the United States closer toward conforming to principles of international law and policy — though it was far from a complete solution. However, for more than six months congressional leadership refused to discuss the bill or bring it up for vote.

Finally, in April 2014, the House of Representatives Judiciary and Intelligence Committees separately considered a significantly modified version of H.R. 3361. Both Committees approved an identical version of the legislation. While Access noted that this revised text was weaker than the original, the bill continued to move the country in the right direction toward reform and Access maintained its endorsement, with the condition that four changes were necessary, including increased authority for the FISC to review government assertions made in surveillance applications and the re-addition of the Special Advocate provisions.

The bill was then sent to the Rules Committee, its last stop before a full vote, to determine basic procedures for consideration of the bill on the House floor, such as the ability of Representatives to offer additional amendments. As the bill sat in Committee over the weekend, reports indicated that members of the intelligence community met with Representatives behind closed doors. As a result, the text of the USA FREEDOM was once again vastly changed by the time it reached the House floor.

In the short time that the public was given to examine the new text, Access withdrew support from the bill, along with several other civil society organizations, but stopped short of proactively opposing it. The bill was passed by the House of Representatives on May 22, 2014 by a vote of 303-121 (with 7 abstaining).

Where are we now?

With more time to review the new text and contemplate its potential effects, a coalition of nearly 40 groups (including Access) issued a letter to the Senate. The letter, sent on June 18, 2014, explained that the bill passed in the House of Representatives was not acceptable, and outlined six changes, without which groups would oppose any version of USA FREEDOM:

1. Definitively end bulk collection;

2. Strengthen transparency reporting and other transparency provisions;

3. Remove language apparently ratifying dragnet searches of international communications;

4. Strengthen provisions to reform the FISC and provide more accountability;

5. Restore strong minimization requirements for surveillance authorities other than Section 215;

6. Include of strict limits on the new authority to collect telephony metadata.

For over a month now, USA FREEDOM has idled in the Senate. The text before the Senate is still, officially, the original text as introduced in 2013. However, the final text that will be ultimately offered up on the floor of the Senate for a vote is still unknown. Access will be paying attention to whatever is announced, and will react quickly to determine to what extent the six demands of civil society have been met and to inform the public on the status of the legislation.

Where are we going?

If USA FREEDOM (in whatever form) is approved by the Senate, there are several potential paths the bill could take toward the President’s desk for signature.

One possibility is that the bill would go into a Conference Committee, a special select committee made up of lawmakers from the House and Senate. Members of the Conference Committee would come from the committees that originally considered the bill, namely the Judiciary and Intelligence Committees of both Houses. The versions of USA FREEDOM that passed both houses would then be considered and reconciled. This could mean that even if a strong version passes out of the Senate, many of the watered down provisions in the House bill could leak in. The Conference Committee would convene largely secret and the public would not have an opportunity to weigh in on the consideration, though the final version would have to be reapproved by both Houses before it could be sent to the President.

Another possibility is that the Senate could send its version of USA FREEDOM directly back to the House for a vote; if the House were to approve the exact same text as the Senate, then the bill could go directly to the President. However, if the House makes any changes during its consideration, the Senate would have to reapprove the language.

What’s missing?

It’s important to keep in mind that at its best, USA FREEDOM only offers a fix for a small portion of surveillance being conducted by the National Security Agency and other members of the U.S. Intelligence Community. As former Department of State official John Tye explained in a recent editorial, “…Section 215 is a small part of the picture and does not include the universe of collection and storage of communications by U.S. persons authorized under Executive Order 12333.”. Access has called for greater reform to address overcollection of information from non-U.S. persons and to increase transparency, particularly around Executive Order 12333.

We will keep you informed on what happens with USA FREEDOM and continue to push for comprehensive surveillance reform that respects the rights of all users and complies with the International Principles on the Application of Human Rights to Communications Surveillance.