Past USA FREEDOM: the move toward comprehensive reform

USA Freedom Act

(This post is part 3 in a series of posts on the USA FREEDOM Act. See part 1 and part 2.)

As we explained in our earlier posts, Access supports passage of the USA FREEDOM Act, but more needs to be done to protect our rights.

Here, we outline our platform for comprehensive reforms to ensure that the U.S. respects its obligations under international law and protects the rights of internet users here and abroad.

We need legislation that:

Stops all bulk collection:
We applaud the attempt to limit bulk collection under the authorities named in the USA FREEDOM Act, but in order to comply with international law, bulk collection cannot be allowed under any authority at any time. Bulk collection is inherently disproportionate, and therefore should be unlawful. Section 702 of the FISA Amendments Act  and other authorities have a sunset date in 2017; we should look ahead to this renewal deadline to ensure that we step back from overbroad surveillance, including surveillance conducted under Executive Order 12333.

Gives equal treatment to people outside the United States:  
True surveillance reform cannot focus only on U.S. persons. Military-grade surveillance should not be turned on innocent users, and certainly not by virtue of their birthplace or location. As a signatory of the International Covenant on Civil and Political Rights, the United States must affirmatively extend its obligations extraterritorially.

Reins in law enforcement:  
Some of the most extreme abuses of surveillance technology are conducted by the Federal Bureau of Investigation and other domestic-facing agencies. Egregiously, these agencies are exempt from most of the USA FREEDOM Act’s reporting provisions. The FBI and other law enforcement agencies must be reined in by Congress and the courts, starting with legislation that clarifies that law enforcement cannot collect a large amount of location information without court approval.

Ensures the integrity of our communications and systems:  
Through manually inserted hardware and software vulnerabilities, intrusions into networks, and the undermining of encryption standards, our global governments have weakened the security that all users should enjoy on the internet. And now, governments are pushing for the power to demand secret backdoors into products and services. This must be expressly prohibited by law, and the NSA particularly must meaningfully separate its information assurance functions from its surveillance missions.

Increases transparency and oversight:  
The National Security Agency Act and other subsequent legislation has created large exemptions in federal open government laws. This secrecy is exacerbated by overbroad invocation of government privileges, like state secrets. Additionally, to solve the “whistleblower” problem, legal proposals seek to increase penalties and decrease access to so-determined “classified data.” We need to revisit our classification policies and roll back the use of privileges and Freedom of Information Act exemptions to ensure that only information that could truly cause harm to national security is kept secret, and as much information as possible is made publicly available.

Protects cybersecurity the real way:  
We need to conduct and fund studies on proper steps to keep the internet secure, including more research and development and federal requirements -— reconciling but not overruling strong state requirements -— to notify users when their data is compromised, regardless of financial impact. We cannot solve the cybersecurity problem through information sharing alone. Further, information sharing cannot be used to justify increased surveillance. We need a single, independent agency with sufficient funding and resources to prevent reliance on the NSA and other inefficient, ineffective agencies and stop cybersecurity from becoming a back door to large amounts of personal user information.

The USA FREEDOM Act does not get us where we need to be -— much more will have to be done. Champions in the House and the Senate -— including Representative Lofgren, Representative Grayson, Senator Wyden, and Senator Franken, to name a few -— have introduced further bills and amendments to continue to move us forward. It is vital that we continue to engage on those provisions, support them, and move them toward passage.

There is no panacea fix to surveillance in the U.S. and around the world. It is an entrenched problem, and government officials have used this issue as a crutch for far too long. Access has worked consistently to support policies, laws, and standards that would protect all users and preserve human rights in the digital sphere. But for the pendulum to swing back in the other direction will require time, resources, and engagement from all stakeholders. It’s important to take this first step, so that we can take the next one, and the next. Let’s take back our privacy.

In our next post, we call on our lawmakers to reform surveillance law to protect our rights. We ask you to join us in that fight.