Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online Monitoring Act
 |
| Full title |
To reform the authorities of the Federal Government to require the production of certain business records, conduct electronic surveillance, use pen registers and trap and trace devices, and use other forms of information gathering for foreign intelligence, counterterrorism, and criminal purposes, and for other purposes. |
| Acronym |
USA Freedom Act, a backronym for “Uniting and Strengthening America by FulfillingRights and Ending Eavesdropping,Dragnet-collection and Online Monitoring Act“ |
| Introduced in |
113th United States Congress |
| Introduced on |
October 29, 2013 |
| Sponsored by |
Rep. F. James Sensenbrenner Jr. (R, WI-5) |
| Number of Co-Sponsors |
150 in House 21 in Senate |
| Effects and Codifications |
| Act(s) affected |
Foreign Intelligence Surveillance Act of 1978, USA PATRIOT Act, USA PATRIOT Improvement and Reauthorization Act of 2005, National Security Act of 1947, Fair Credit Reporting Act, and others. |
| U.S.C. section(s) affected |
18 U.S.C.§ 2709, 18 U.S.C.§ 3511, 15 U.S.C.§ 1681u, 50 U.S.C.§ 1881a, 12 U.S.C.§ 3414, and others. |
| Agencies affected |
United States Department of Justice Office of the Inspector General, United States Department of Justice, Privacy and Civil Liberties Oversight Board, Inspector General of the Intelligence Community,Federal Judicial Center, United States Congress, Director of National Intelligence,Federal Bureau of Investigation, Chief Justice of the United States, Supreme Court of the United States |
| Legislative history |
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The USA Freedom Act is a law which was originally introduced in both houses of the U.S. Congress on October 29, 2013. Following the expiration of several provisions of the Patriot Act, the act was passed on June 2, 2015.[3][4] The title of the act is a ten-letter backronym (USA FREEDOM) that stands for “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and OnlineMonitoring Act.”
When the bill was re-introduced in the 114th Congress (2015-2016), it was described by the bill sponsors as “a balanced approach”[5] while being questioned for extending the Patriot Act through the end of 2019.[6]Supporters of the bill said that the House Intelligence Committee and House leadership[7] would insist on reauthorizing all Patriot Act powers except bulk collection under Section 215 of the Patriot Act[8]. Critics assert that mass surveillance of the content of Americans’ communication will continue under Section 702 of FISA which does not expire until 2017[9][10] and Executive Order 12333[9][11] due to the “unstoppable surveillance-industrial complex”[12] despite the fact that a bipartisan majority of the House had previously voted to close backdoor mass surveillance.[7]
Purpose
According to supporters of the USA Freedom Act, the USA Freedom Act[13][full citation needed] was meant to end the bulk collection of Americans’ metadata by the NSA, end the secret laws created by the FISA court, and introduce a “Special Advocate” to represent public and privacy matters.[14][15][16] However, the USA Freedom Act does allow the bulk collection of Americans’ metadata by phone companies, which is then accessible by the NSA; it also does not address other laws which have purportedly challenged Americans’Fourth Amendment rights.[17] Other proposed changes included limits to programs like PRISM, which retains Americans’ Internet data,[18] and greater transparency by allowing companies such as Google andFacebook to disclose information about government requests for information.[19]
113th Congress (2013-2014)
The House version, introduced by Representative Jim Sensenbrenner as HR 3361,[20] was referred to theUnited States House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and InvestigationsJanuary 9, 2014,[21] and the Senate version,[22] introduced by Senator Patrick Leahy, was read twice and referred to the Senate Committee on the Judiciary.[21] An amended version out of the House Judiciary Committee contained many provisions raising concerns among civil libertarians[23] including an extension of the controversial USA PATRIOT Act through the end of 2017.[24][25] After considering the bill throughout 2014,[25] theSenate voted on November 18, 2014, to end further discussion of the measure during the 113th United States Congress.[26]
The bill comprised several titles: FISA business records reforms, FISA pen register and trap and trace device reforms, FISA acquisitions targeting persons outside the United States reforms, Foreign Intelligence Surveillance Court reforms, Office of the Special Advocate, National Security Letter reforms, FISA and National Security Letter transparency reforms, and Privacy and Civil Liberties Oversight Board subpoena authority.[27]
Purpose
Representative Jim Sensenbrenner, who introduced the bill, stated that its purpose was:
To rein in the dragnet collection of data by the National Security Agency (NSA) and other government agencies, increase transparency of the Foreign Intelligence Surveillance Court (FISC), provide businesses the ability to release information regarding FISA requests, and create an independent constitutional advocate to argue cases before the FISC.[14][28]
According to the bill’s sponsors, their legislation would have amended Section 215 of the Patriot Act to ensure that any phone records obtained by the government were essential in an investigation that involved terrorism or espionage, thereby ending bulk collection,[8] while preserving “the intelligence community’s ability to gather information in a more focused way.”[29]
Background
Many members of Congress believed that in the wake of the Snowden disclosures, restoration of public trust would require legislative changes.[30] More than 20 bills have been written since the disclosures began with the goal of clarifying government surveillance powers.[18]
Sensenbrenner, who introduced the USA PATRIOT Act (H.R. 3162) in 2001 following the September 11 terrorist attacks to give more power to US intelligence agencies, and who has described himself as “author of the Patriot Act,”[31] declared that it was time to put the NSA’s “metadata program out of business.” With its bulk collection of Americans’ phone data, Sensenbrenner asserted that the intelligence community “misused those powers,” had gone “far beyond” the original intent of the legislation, and had “overstepped its authority.”[30][32]
An opinion piece by Leahy and Sensenbrenner, published in Politico, described the impetus for proposed changes,[33]saying:
The intelligence community has failed to justify its expansive use of [the FISA and Patriot Act] laws. It is simply not accurate to say that the bulk collection of phone records has prevented dozens of terrorist plots. The most senior NSA officials have acknowledged as much in congressional testimony. We also know that the FISA court has admonished the government for making a series of substantial misrepresentations to the court regarding these programs. As a result, the intelligence community now faces a trust deficit with the American public that compromises its ability to do its job. It is not enough to just make minor tweaks around the edges. It is time for real, substantive reform.[29]
Markup in House Judiciary Committee
In May 2014, the U.S. House Judiciary Committee posted a “Manager’s Amendment” on its website. Title VII of the Amendment read “Section 102(b)(1) of the USA Patriot Improvement and Reauthorization Act of 2005 (50 U.S.C. 1805 note) is amended by striking “June 1, 2015” and inserting “December 31, 2017,” extending the controversial USA PATRIOT Act through the end of 2017.[34] The Electronic Privacy Information Center (EPIC) has criticized the Patriot Act as unconstitutional, especially when “the private communications of law-abiding American citizens might be intercepted incidentally”.[35] James Dempsey, of the CDT, believes that the Patriot Act unnecessarily overlooks the importance of notice under the Fourth Amendment and under a Title III wiretap,[36] while the American Library Associationbecame so concerned that they formed a resolution condemning the USA PATRIOT Act, and which urged members to defend free speech and protect patrons’ privacy against the Act.[37]
The Guardian wrote “civil libertarians on the Judiciary Committee had to compromise in order to gain support for the act. Significantly, the government will still be able to collect phone data on Americans, pending a judge’s individualized order based on ‘reasonable articulable suspicion‘ – a standard preferred by the NSA – of wrongdoing, and can collect call records two degrees or ‘hops’ of separation from the individual suspected.”[23] Kara Brandeisky of ProPublica said, “some worry that the bill does not unequivocally ban bulk collection of American records. Again, a lot depends on how the Foreign Intelligence Surveillance Court interprets the statute.”[38]
The National Journal wrote “one tech lobbyist noted concern that a provision that would have allowed companies to disclose to customers more information about government data requests has been dropped. In addition, an external special advocate that would oversee the Foreign Intelligence Surveillance Court would no longer be selected by the Privacy and Civil Liberties Oversight Board. Instead, the court’s judges would designate five ‘amicus curiae‘ who possess appropriate security clearances.”[39]
The Electronic Frontier Foundation (EFF) stated it remained “concerned that this bill omits important transparency provisions found in the (original 2013) USA FREEDOM Act, which are necessary to shed light on surveillance abuses”. In addition, the EFF said it believed “this bill should do more to address mass surveillance under Section 702 of Foreign Intelligence Surveillance Amendments Act, a section of law used to collect the communications of users worldwide.”[40]The Open Technology Institute commented “several other key reforms—such as provisions allowing Internet and phone companies to publish more information about the demands they receive, which OTI and a coalition of companies and organizations have been pressing for since last summer—have been removed, while the bill also provides for a new type of court order that the President has requested, allowing for continuous collection by the government of specified telephone records.”[41]
Despite the criticism from civil liberties groups, Mike Rogers, a defender of the NSA‘s surveillance practices and the chairman of the House Intelligence Committee, praised the amendments. Rogers, who had his own bill which would codify the NSA’s surveillance practices in to law, called the proposed amendments a “huge improvement.” Foreign Policy wrote “any compromise to the Judiciary bill risks an insurrection from civil libertarians in Congress. Michigan Republican Justin Amashled such a revolt last year when he offered an NSA amendment to a defense appropriations bill that would have stripped funding for the NSA’s collection program.” “Just a weakened bill or worse than status quo? I’ll find out,” Representative Amash said.[42]
After the marked up bill passed the House Judiciary Committee USA Freedom Act co-author and Senate Committee on the Judiciary Chairman Patrick Leahycommented that he “remain concerned that the legislation approved today does not include some of the important reforms related to national security letters, a strong special advocate at the FISA Court, and greater transparency. I will continue to push for those reforms when the Senate Judiciary Committee considers the USA Freedom Act this summer.”[25]
Passage in House of Representatives
The House of Representatives passed on May 22, 2014 the USA Freedom act by 303 votes to 121.[43] Because the House version was weakened by lawmakers loyal to the intelligence establishment it lost support of important House Judiciary members like Republicans Darrell Issa, Ted Poe and Raul Labrador and Democrat Zoe Lofgren who previously voted for the act.[44] “The result is a bill that will actually not end bulk collection, regrettably,” said Rep. Zoe Lofgren who voted against the bill.[45] The act would shift responsibility for retaining telephonic metadata from the government to telephone companies. Providers like AT&T and Verizon would be required to maintain the records and let the NSA search them in terrorism investigations when the agency obtains a judicial order or in certain emergency situations.[46] The USA Freedom Act demands that the NSA get approval for a search from the Foreign Intelligence Surveillance Court before demanding that the telecoms hand over metadata. However, no “probable-cause” Fourth Amendment standard is required to access the database[45] While an allowable search under the original USA Freedom Act was defined as “a term used to uniquely describe a person, entity, or account”, but under the House version a database search inquiry is now allowed if it is “a discrete term, such as a term specifically identifying a person, entity, account, address, or device.”[45] Provisions that were dropped from the bill included requirements to estimate the number of Americans whose records were captured under the program, and the creation of a public advocate to challenge the government’s legal arguments before the Foreign Intelligence Surveillance Court.[47][48]
The passed House version[49] was criticised by U.S. senators, tech firms like Google, Apple, Microsoft, Facebook and Twitter, as well as civil liberties groups.[44][45][46][47][50] Senator Sen. Patrick Leahy, chair of the Senate Judiciary Committee and lead Democratic author of the Freedom Act, criticized the House version by saying in a statement: “Today’s action in the House continues the bipartisan effort to restore Americans’ civil liberties. But I was disappointed that the legislation passed today does not include some of the meaningful reforms contained in the original USA Freedom Act. I will continue to push for these important reforms when the Senate judiciary committee considers the USA Freedom Act next month.”[50] And Senator Ron Wyden stated he was “gravely concerned that the changes that have been made to the House version of this bill have watered it down so far that it fails to protect Americans from suspicionless mass surveillance.”[50]Major U.S. tech firms like Google, Apple, Microsoft, Facebook, and Twitter joined together in the Reform Government Surveillance coalition which called the House version a move in the wrong direction. The Reform Government Surveillance released a statement on June 5, stating: “The latest draft opens up an unacceptable loophole that could enable the bulk collection of Internet users’ data … While it makes important progress, we cannot support this bill as currently drafted and urge Congress to close this loophole to ensure meaningful reform.”[51] Mark Jaycox, a legislative analyst with the Electronic Frontier Foundation, said: “The bill is littered with loopholes. The problem right now, especially after multiple revisions, is that it doesn’t effectively end mass surveillance.”[44][44] Zeke Johnson, director ofAmnesty International USA’s security and human rights program, accusing the House for failing to deliver serious surveillance reform said: “People inside and outside the U.S. would remain at risk of dragnet surveillance. The Senate should pass much stronger reforms ensuring greater transparency, robust judicial review, equal rights for non-U.S. persons, and a clear, unambiguous ban on mass spying. President Obama need not wait. He can and should implement such safeguards today.” The White House however endorsed the bill. “The Administration strongly supports House passage of H.R. 3361, the USA Freedom Act. … The Administration applauds and appreciates the strong bipartisan effort that led to the formulation of this bill, which heeds the President’s call on this important issue,” the White House said in a statement.[51] “The bill ensures our intelligence and law enforcement professionals have the authorities they need to protect the Nation, while further ensuring that individuals’ privacy is appropriately protected when these authorities are employed. Among other provisions, the bill prohibits bulk collection through the use of Section 215, FISA pen registers, and National Security Letters.”[46][52]
Civil rights groups and scholars said the new language allowing the NSA to search meta data handed over from telephone companies was vague and perhaps would allow the NSA to ensnare the metadata of broad swaths of innocent people in violation of their constitutional rights. “In particular, while the previous bill would have required any request for records to be tied to a clearly defined set of ‘specific selection terms,’ the bill that just passed leaves the definition of ‘specific selection terms’ open. This could allow for an overly broad and creative interpretation, which is something we’ve certainly seen from the executive branch and the FISA Court before,” said Elizabeth Goitein, a co-director of the Brennan Center’s Liberty and National Security Program.[45] “The new definition is incredibly more expansive than previous definitions … The new version not only adds the undefined words “address” and “device,” but makes the list of potential selection terms open-ended by using the term “such as.” Congress has been clear that it wishes to end bulk collection, but given the government’s history of twisted legal interpretations, this language can’t be relied on to protect our freedoms,” said the Electronic Frontier Foundation in a press release.[51][53]
Defeat in the Senate
Negotiations among intelligence agencies, the White House, lawmakers and their aides, and privacy advocates in the summer of 2014 led to a modified bill (S. S.2685)[54] in the U.S. Senate. This bill version addressed most privacy concerns regarding the NSA program that collects records of Americans’ phone calls in bulk and other issues.[55]
Under the bill the NSA would no longer collect those phone records. Instead, most of the records would have stayed in the hands of the phone companies, which would not have been required to hold them any longer than they already do for normal business purposes, which in some cases is 18 months. The bill would require the NSA to request specific data from phone companies under specified limits i.e. the NSA would need to show it had reasonable, articulable suspicion that the number it is interested in is tied to a foreign terrorist organization or individual. The proposed legislation would still have allowed analysts to perform so-called contact chaining in which they trace a suspect’s network of acquaintances, but they would been required to use a new kind of court order to swiftly obtain only those records that were linked, up to two layers away, to a suspect — even when held by different phone companies. It would also require the federal surveillance court to appoint a panel of public advocates to advance legal positions in support of privacy and civil liberties, and would expand company reporting to the public on the scope of government requests for customers’ data. This USA Freedom Act version thus gained the support of the Obama Administration, including the director of national intelligence and attorney general, as well as many tech companies including Apple, Google, Microsoft and Yahoo as well as a diverse range of groups, including the National Rifle Association and the American Civil Liberties Union.[26][55]
Following the 2014 Congressional elections, the Senate voted on November 18, 2014, to block further debate of the measure during the 113th United States Congress. Fifty-four Democrats and four Republicans who supported consideration failed to muster the 60 votes required.[56] Senator Patrick Leahy, who drafted the bill, blamed its defeat on what he called fear-mongering by opponents, saying, “Fomenting fear stifles serious debate and constructive solutions.” Senator Mitch McConnell, the Republican leader, argued that the NSA’s bulk collection of Americans’ metadata was a vital tool in the fight against terrorism. “This is the worst possible time to be tying our hands behind our backs,” he said.[26]
114th Congress (2015-2016)
The USA Freedom Act was re-introduced in the House Judiciary Committee and Senate Judiciary Committee in late April 2015 based upon a modified version of the one which failed in the Senate in the 113th Congress.
The 2015 USA Freedom Act[57] version is described by its sponsors as “a balanced approach that would ensure the NSA maintains an ability to obtain the data it needs to detect terrorist plots without infringing on Americans’ right to privacy.”[5] Human rights groups believed the bill’s transparency and court oversight provisions are less robust than would have been required in a previous version of the bill, with more limited reporting requirements and a more narrowly defined role for external court advocates.[58]
The bill received a mixture of reaction, ranging from support from national security and computer trade groups, skepticism or moderate objection from civil liberties groups, to outright opposition from former NSA whistle blowers. The editorial board of the New York Times ran an editorial against the bill which “will be weakened further in the Senate by the majority leader” and advised readers to “get used to the protections of your civil liberties being minimally viable”.[59]
Passage out of House Judiciary Committee
The bill passed out of the House Judiciary Committee on April 30, 2015.[60] The proposed bill would end the NSA’s bulk collection under Section 215 by requiring the government to seek records from companies using a “specific selection term” that identifies a specific person, account or address and “is used to limit . . . the scope” of records sought. The term may not be a phone or Internet company.[5]
Amendments to strengthen the bill were voted down during Committee markup. One would have offered a constitutional advocate and failed by voice vote,[61] while another would have offered protection for whistle blower complaints.[62] Representative Jordan unsuccessfully argued for another amendment with the following dialog, “It’s not a vote to blow up the deal. It’s a vote for the Fourth Amendment. Plain and simple. All the Gentleman says in his amendment is, if you’re going to get information from an American citizen, you need a warrant.”[63] The bill ultimately received 25 votes in support (64%), 12 abstentions (31%), and 2 in opposition (5%).[64]
House Judiciary Chairman Bob Goodlatte said “the USA Freedom Act reforms our nation’s intelligence-gathering programs to ensure they operate in a manner that reflects core American values … We urge both the House and Senate to move expeditiously on this legislation so that we rein in government overreach and rebuild trust with the American people”.[65]
Representative Ted Poe was one member to vote against the bill. “Between the Committee vote and the House floor the bill was changed and it now confused what should have been clarified. The version of the USA Freedom Act that passed the House today leaves room for different interpretations, potentially giving NSA the ability to continue to act outside the intent of Congress and the Constitution. I could not support a bill that may allow abuses of the fourth amendment to continue,” he said.[66]
Reaction
National security and trade groups
The Center for National Security supports the USA Freedom Act introduced on April 28, 2015 to end bulk collection of Americans’ telephone metadata under the so-called “section 215” program.[67]
The Software Alliance sponsored the legislation saying “in reforming government surveillance practices, it is critical that legislation strikes the right balance between securing our nation and its citizens and improving privacy protections for the public. The FISA reforms in the USA FREEDOM Act will help restore trust in both the US government and the US technology sector.”[68]
The ITIC said “the USA Freedom Act, H.R. 2048, builds on the foundation laid by the House Judiciary Committee last Congress and the result is a bill that strengthens privacy protections while maintaining the interests of national security.”[69]
Civil liberties advocates
The final USA Freedom Act is perceived as containing several concessions to pro-surveillance legislators meant to facilitate its passage.[6][70] The watered down version of the USA Freedom Act that passed the House of Representatives in 2015 has been widely criticized by civil liberties advocates and its original supporters amongst house members for extending the Patriot Act Mass surveillance programs without meaningful restraints, undermining the original purpose of the bill. [71]
“This bill would make only incremental improvements, and at least one provision-the material-support provision-would represent a significant step backwards,” ACLU deputy legal director Jameel Jaffer said in a statement. “The disclosures of the last two years make clear that we need wholesale reform.” Jaffer wants Congress to let Section 215 sunset completely and wait for a better reform package than endorse something half-baked[72], saying that “unless that bill is strengthened, sunset would be the better course.”[73] The ACLU had previously written of the 2013 version that “although the USA Freedom Act does not fix every problem with the government’s surveillance authorities and programs, it is an important first step and it deserves broad support.”[74][75]
Representative Justin Amash, author of the narrowly defeated Amash Amendment, a proposal that would have de-funded the NSA bulk-collection program, backed the 2013 legislation, but not the final 2015 version[76]. “It’s getting out of control,” he commented. “[Courts are issuing] general warrants without specific cause…and you have one agency that’s essentially having superpowers to pass information onto others”.[32]
According to Deputy Attorney General James Cole, even if the Freedom Act becomes law, the NSA could continue its bulk collection of American’s phone records. He explained that “it’s going to depend on how the [FISA] court interprets any number of the provisions” contained within the legislation.[8]Jennifer Granick, Director of Civil Liberties at Stanford Law School, stated:
The Administration and the intelligence community believe they can do whatever they want, regardless of the laws Congress passes, so long they can convince one of the judges appointed to the secretive Foreign Intelligence Surveillance Court (FISC) to agree. This isn’t the rule of law. This is a coup d’etat.[8]
International human rights groups remain somewhat skeptical of specific provisions of the bill. For example, Human Rights Watch expressed its concern that the “bill would do little to increase protections for the right to privacy for people outside the United States, a key problem that plagues U.S. surveillance activities. Nor would the bill address mass surveillance or bulk collection practices that may be occurring under other laws or regulations, such as Section 702 of the FISA Amendments Act or Executive Order 12333. These practices affect many more people and include the collection of the actual content of internet communications and phone calls, not just metadata”.[77] Zeke Johnson, Director of Amnesty International‘s Security and Human Rights Program, agreed that “any proposal that fails to ban mass surveillance, end blanket secrecy, or stop discrimination against people outside the U.S. will be a false fix”.[11]
Members of the anti-surveillance Civil Liberties Coalition are dismissing the USA Freedom Act in support of the Surveillance State Repeal Act, a far more comprehensive piece of legislation in the House that completely repeals the Patriot Act, as well as 2008’s FISA Amendments Act.[72] A group of 60 organizations called Congress to not stop at ending the NSA’s bulk collection of telephone information under the USA PATRIOT Act, but to also end the FISA Amendments Act and Executive Order 12333 mass surveillance programs and restore accountability for bad actors in the Intelligence Community.[9]
The Center for Democracy and Technology endorses the bill, but it points out that it doesn’t limit data retention for information collected on people who turn out to have no connection to a suspect or target, and emphasizes that this is not an omnibus solution.[72] The group argued the bill had to be supported because “the Senate will weaken the USA FREEDOM Act right before the sunset deadline, forcing the House to accept a weaker bill”.[78]
“This bill purports to ban certain acts under narrow authorities, but it doesn’t ban those behaviors outright. Nor does it increase meaningful oversight of the NSA,” said David Segal, executive director of Demand Progress, who wants Section 215 to expire. The group said “a vote for a bill that does not end mass surveillance is a vote in support of mass surveillance.”[79]
“Companies are provided monetary incentive to spy and share that information with the government and blanket liability once they do under USA Freedom — even if that breaks that law,” said Sascha Meinrath, the director of X-lab, an independent tech policy institute previously associated with New America. “Once companies receive that, they’ll have almost no reason to weigh in on meaningful surveillance reform.”[79] “In a way, it’s kind of like PRISM,” the program revealed by Snowden where major tech companies turned over the content of online communications to the NSA, said longtime independent surveillance researcher Marcy Wheeler. “It pushes things to providers: Everyone gets immunity, but it doesn’t add to the privacy.”[79]
“We think of the USA Freedom Act as yesterday’s news,” said Shahid Buttar of the Bill of Rights Defense Committee, “and we’re interested in forcing the [intelligence] agencies into a future where they comply with constitutional limits.” “If passed, it’ll be the only step,” predicted Patrick Eddington of the Cato Institute, a former House staffer, since the next expiration date for a major piece of surveillance legislation is 31 December 2017.[80]
Following the law’s passage on June 2, 2015, ACLU deputy legal director Jameel Jaffer claimed that “This is the most important surveillance reform bill since 1978, and its passage is an indication that Americans are no longer willing to give the intelligence agencies a blank check.”[81]
Former whistleblowers
Former NSA crypto-mathematician William Binney, who worked three decades at the agency, says the Freedom Act – widely seen as having the best chance of any surveillance-limiting proposal – “won’t do anything” if it passes. “Why do you think NSA [and other intelligence agencies] support it?” he says.[12][12]
Drake, a former NSA senior executive prosecuted unsuccessfully under the Espionage Act before pleading guilty to a misdemeanor in 2011, calls the bill the “Free-dumb Act 2.0,” and says he sees it as a ploy by government officials “to keep the status quo in place.” He also says the fixation on the call record program in public debate is unfortunate, because NSA Internet surveillance is far broader and more invasive. “It’s a shiny, shiny bright spot, [but] there’s a whole lot more being collected,” he says, including a “staggering” amount of American communications. Drake believes support from the Obama administration for the Freedom Act is motivated in part by a desire to hobble lawsuits against the call record program, three of which are pending with appeals courts and may lay the groundwork for a major Supreme Court privacy ruling.[12]
Wiebe, formerly a senior analyst at the NSA, says the anticipated Freedom Act likely will be “more of the same” and is “not going to change anything” in a meaningful way. Like Drake, he has no hope for meaningful reform and doesn’t believe efforts to lobby Congress would work. “We’ve tried,” he says. “It makes no difference.” He believes well-funded government contractors and powerful, “co-opted” lawmakers who lead key committees make up a virtually unstoppable surveillance-industrial complex.[12]
House Passage
The USA Freedom Act passed the U.S. House of Representatives on May 13, 2015.[82] The bill received broad support in the House, with 338 votes for the bill and 88 against it. It was passed without any amendments to the House Judiciary version because the House Rules Committee prohibited consideration of any amendment to the USA Freedom Act, claiming that any changes to the legislation would have weakened its chances of passage.[83] The bill had the support of the White House, Attorney General Eric Holder and Director of National Intelligence James Clapper. While civil liberties groups were divided over the support of the bill, lawmakers opposed to the Bill stated it will handicap the NSA and allow terrorist groups to prosper.[84]
Passage in Senate
The USA Freedom Act was not passed by the U.S. Senate on May 22, 2015. By a vote of 57-42, the Senate did not pass the bill that would have required 60 votes to move forward, which means that the NSA must start winding down its domestic mass surveillance program this week. The Senate also rejected, by 54-45, also short of the necessary 60 votes, a two-month extension for the key provision in the Patriot Act that has been used to justify NSA spying, which is set to expire on June 1, 2015.[85][86][87]
However, on May 31, 2015, the Senate voted 77-17 to limit debate on the act. Senate rules will allow it to be passed after the mass surveillance programs have expired.[88] Richard Burr, chair of the Senate Intelligence Committee, had three amendments he planned to offer to the bill which were likely to further increase opposition to the bill.[89] While several amendments which would strengthen the bill were not allowed to be considered, three amendments to weaken the bill, considered “poison pills”, were allowed to be considered but ultimately rejected.[90]
The bill ultimately passed the Senate 67-32 on June 2, 2015 and was signed into law.[91] “After a needless delay and inexcusable lapse in important national security authorities, my administration will work expeditiously to ensure our national security professionals again have the full set of vital tools they need to continue protecting the country,” Obama said.[92]
http://en.wikipedia.org/wiki/USA_Freedom_Act
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The Pronk Pops Show Podcasts
Pronk Pops Show 476 June 2, 2015
Pronk Pops Show 475 June 1, 2015
Pronk Pops Show 474 May 29, 2015
Pronk Pops Show 473 May 28, 2015
Pronk Pops Show 472 May 27, 2015
Pronk Pops Show 471 May 26, 2015
Pronk Pops Show 470 May 22, 2015
Pronk Pops Show 469 May 21, 2015
Pronk Pops Show 468 May 20, 2015
Pronk Pops Show 467 May 19, 2015
Pronk Pops Show 466 May 18, 2015
Pronk Pops Show 465 May 15, 2015
Pronk Pops Show 464 May 14, 2015
Pronk Pops Show 463 May 13, 2015
Pronk Pops Show 462 May 8, 2015
Pronk Pops Show 461 May 7, 2015
Pronk Pops Show 460 May 6, 2015
Pronk Pops Show 459 May 4, 2015
Pronk Pops Show 458 May 1, 2015
Pronk Pops Show 457 April 30, 2015
Pronk Pops Show 456: April 29, 2015
Pronk Pops Show 455: April 28, 2015
Pronk Pops Show 454: April 27, 2015
Pronk Pops Show 453: April 24, 2015
Pronk Pops Show 452: April 23, 2015
Pronk Pops Show 451: April 22, 2015
Pronk Pops Show 450: April 21, 2015
Pronk Pops Show 449: April 20, 2015
Pronk Pops Show 448: April 17, 2015
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Story 1: National Security Agency Is Still Massively Collecting All Your Communications — The USA Freedom Act Is At Best A Baby Step Towards Restoring Your Fourth Amendment Constitutional Rights — Fire Your Representatives For Betraying Their Oath Of Office — NSA Turnkey Tyranny Totalitarian Targeting of American People — Videos
USA Freedom Act passed by Senate and signed by President Obama, limiting NSA surveillance
Freedom Act Changes NSA Rules For Data Collection
Senate Passes USA Freedom Act, Stops NSA Phone Data Gathering Special Report 1st Segment
Bill Binney: We Are A Gov’t With A Country
Freedom Act: Edward Snowden speaks out on surveillance reform
Politics Panel: Cowards! The Freedom Act is Passed
William Binney’s Heartfelt Plea to the American People
Operation “Toto” Pulling Back The Curtain: Full NSA Interview
William Binney Tells RT That USA Freedom Act is a Farce
NSA Whistleblower William Binney: The Future of FREEDOM
Bill Binney: ‘21 recommendations on fixing NSA sent to US president last year’
NSA Whistleblower: Everyone in US under virtual surveillance, all info stored, no matter the post
Rand Paul Causes A Vicious Senate Cat Fight Over Patriot Act
Rand Paul’s Freedom Act Filibuster
Senate Approves USA Freedom Act, Obama Signs It, After Amendments Fail
The Senate has approved the USA Freedom Act, which will alter the way U.S. agencies conduct surveillance and gather data. A final vote on the bill came late Tuesday afternoon, after amendments to the bill failed.
Update at 9:30 p.m. ET: Obama’s Signature
Following an expedited enrollment process, President Obama signed the bill into law late Tuesday.
Enactment of this legislation will strengthen civil liberty safeguards and provide greater public confidence in these programs,” Obama said in a statement after the vote. “I am gratified that Congress has finally moved forward with this sensible reform legislation.”
Update at 4:30 p.m. ET: The Bill Has Passed
In the final tally of the vote, 67 senators were in favor of the measure and 32 against. The legislation needed a simple majority to pass.
Last November, the Freedom Act failed in the Senate after not receiving enough support to avoid a filibuster. Its critics say the act doesn’t go far enough to curtail surveillance programs that can access huge databases of information about Americans.
Sen. Rand Paul, R-Ky., voted against the measure today, as he did last fall. Also voting against the bill Tuesday was independent Sen. Bernie Sanders, who is seeking the Democratic presidential nomination.
The lead sponsor of the bill in the House, Rep. Jim Sensenbrenner, R-Wis., promises it will “rein in the dragnet collection of data” by the NSA and others, and “increase transparency of the Foreign Intelligence Surveillance Court.”
Calling today’s passage “a milestone,” ACLU Deputy Legal Director Jameel Jaffer says, “This is the most important surveillance reform bill since 1978, and its passage is an indication that Americans are no longer willing to give the intelligence agencies a blank check.”
Our original post continues:
The vote comes two days after controversial provisions of the Patriot Act expired because the Senate was unable to “overcome parliamentary maneuvers by Sen. Rand Paul,” as Eyder reported Sunday night, “and let three controversial provisions of the Patriot Act expire at midnight.”
The House of Representatives approved the Freedom Act on May 13. The legislation would remain in effect until Dec. 15, 2019.
“We worked for two years across the aisle and across the Capitol,” said Sen. Patrick Leahy, a champion of the bill. He said it would bring much-needed reform to America’s intelligence-gathering.
Leahy and his chief ally on the bill, Sen. Mike Lee, R-Utah, spent their Tuesday in the Senate fighting against amendments to the USA Freedom Act that were put forth — and defeated.
Tuesday’s vote on the Freedom Act comes less than a month after a federal appeals court ruled that the National Security Agency’s practice of collecting bulk data about Americans’ phone calls violates the Constitution.
Before the vote, a displeased Majority Leader Sen. Mitch McConnell criticized the policies of President Obama and said that the Freedom Act weakens America’s ability to protect itself. He also cited an AP article that called the turn of events in the surveillance and spying field as “a victory for Edward Snowden,” the former NSA contractor who released secret information about U.S. spying in June of 2013 (Snowden discussed the Patriot Act Tuesday).
After McConnell spoke, Minority Leader Sen. Harry Reid responded by saying that if McConnell is worried about making America look weaker, “he should look in the mirror.”
Reid accused the majority leader of trying to deploy distractions from the real issues and said that McConnell had also implicitly criticized the House of Representatives.
“I don’t think any of us,” Reid said, “need a lecture on why we’re less secure today.”
http://www.npr.org/sections/thetwo-way/2015/06/02/411534447/senateis-poised-to-vote-on-house-approved-usa-freedom-act
With or Without the Patriot Act, Here’s How the NSA Can Still Spy on Americans
June 1, 2015, Jason M. Breslow
While it may only be temporary, the National Security Agency on Monday lost its authority to collect Americans’ phone records in bulk after the Senate failed to extend provisions of the Patriot Act authorizing the controversial domestic surveillance program.
For now, the stall in the Senate means the NSA can’t collect any newly created telephone records. Under the now-lapsed Section 215 of the Patriot Act, the NSA gathered metadata such as who called whom, the time the call was placed and how long the conversation lasted.
Also lapsed are provisions of the law that allowed for wiretap orders on “lone wolf” terrorism suspects; that permitted roving wiretaps that follow suspects from device to device as they change phones; and that compelled businesses to turn over records deemed relevant to a national security investigation.
But these Patriot Act provisions represent just one component of the NSA surveillance capabilities exposed in 2013 by former NSA contractor Edward Snowden.
Under an entirely separate law, the 2008 FISA Amendments Act, the government still has the authority to access the communications of users of popular Internet sites such as Facebook, Google, Microsoft and Yahoo. Section 702 of the law, which does not expire until 2017, gives the government the ability to collect the content of an Internet user’s actual communications — not just metadata.
The law is geared towards non-citizens outside of the U.S., but as privacy advocates argue, it is inevitable that the communications of U.S. citizens and those of non-citizens lawfully living in the U.S. are swept up by the program.
“The phone records program under Section 215 is really just one piece of a much larger puzzle,” said Stephen Vladeck, a professor of law at the American University Washington College of Law. “They’re targeted at non-citizens but the way the technology works there is just no way for the vacuum cleaner to distinguish between the particles of dirt.”
An even older and more obscure Regan-era law, Executive Order No. 12333, provides U.S. intelligence with nearly identical surveillance capabilities to intercept overseas communications, Vladeck said, with the same implications for privacy.
“The way the government is intercepting communications under these authorities,” said Vladeck, referring to Section 702 and Executive Order 123333, “it cannot tell at the point of collection whether the actual sender or recipient is or is not a U.S. citizen.”
Also unaffected by the sunset of Section 215 is the use of National Security Letters, which since 9/11 have helped to dramatically expand the government’s ability to collect information about Americans directly from phone companies and Internet providers. Any FBI office can issue one, without a court’s review and with a gag order. In the past 10 years, more than 300,000 National Security Letters have been issued, according to the Electronic Frontier Foundation, and until 2013, no major Internet or phone company is known to have questioned the constitutionality of one.
Meanwhile, it’s not clear that all surveillance conducted under the Patriot Act has officially come to a close. As The New York Times noted, all three aspects of the law that expired Monday “contained a so-called grandfather clause that permits their authority to continue indefinitely for any investigation that had begun before June 1.”
Of course, by the end of the week, that may not matter. After having failed to extend the expiring Patriot Act provisions on Sunday, the Senate appears poised to pass a House bill, the USA Freedom Act, that would restore the lapsed Patriot Act powers into law. The one critical difference in the new law is that bulk phone records would stay in the hands of phone companies, rather than with the government.
Related Film: United States of Secrets
In this two-part, Peabody Award-winning series, FRONTLINE explores how the U.S. government came to monitor and collect the communications of millions of people around the world — and here at home — and the lengths to which officials tried hide the massive surveillance from the public.
https://www.youtube.com/watch?v=bYcNWMoas_E
USA Freedom Act
The USA Freedom Act is a law which was originally introduced in both houses of the U.S. Congress on October 29, 2013. Following the expiration of several provisions of the Patriot Act, the act was passed on June 2, 2015.[3][4] The title of the act is a ten-letter backronym (USA FREEDOM) that stands for “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and OnlineMonitoring Act.”
When the bill was re-introduced in the 114th Congress (2015-2016), it was described by the bill sponsors as “a balanced approach”[5] while being questioned for extending the Patriot Act through the end of 2019.[6]Supporters of the bill said that the House Intelligence Committee and House leadership[7] would insist on reauthorizing all Patriot Act powers except bulk collection under Section 215 of the Patriot Act[8]. Critics assert that mass surveillance of the content of Americans’ communication will continue under Section 702 of FISA which does not expire until 2017[9][10] and Executive Order 12333[9][11] due to the “unstoppable surveillance-industrial complex”[12] despite the fact that a bipartisan majority of the House had previously voted to close backdoor mass surveillance.[7]
Purpose
According to supporters of the USA Freedom Act, the USA Freedom Act[13][full citation needed] was meant to end the bulk collection of Americans’ metadata by the NSA, end the secret laws created by the FISA court, and introduce a “Special Advocate” to represent public and privacy matters.[14][15][16] However, the USA Freedom Act does allow the bulk collection of Americans’ metadata by phone companies, which is then accessible by the NSA; it also does not address other laws which have purportedly challenged Americans’Fourth Amendment rights.[17] Other proposed changes included limits to programs like PRISM, which retains Americans’ Internet data,[18] and greater transparency by allowing companies such as Google andFacebook to disclose information about government requests for information.[19]
113th Congress (2013-2014)
The House version, introduced by Representative Jim Sensenbrenner as HR 3361,[20] was referred to theUnited States House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and InvestigationsJanuary 9, 2014,[21] and the Senate version,[22] introduced by Senator Patrick Leahy, was read twice and referred to the Senate Committee on the Judiciary.[21] An amended version out of the House Judiciary Committee contained many provisions raising concerns among civil libertarians[23] including an extension of the controversial USA PATRIOT Act through the end of 2017.[24][25] After considering the bill throughout 2014,[25] theSenate voted on November 18, 2014, to end further discussion of the measure during the 113th United States Congress.[26]
The bill comprised several titles: FISA business records reforms, FISA pen register and trap and trace device reforms, FISA acquisitions targeting persons outside the United States reforms, Foreign Intelligence Surveillance Court reforms, Office of the Special Advocate, National Security Letter reforms, FISA and National Security Letter transparency reforms, and Privacy and Civil Liberties Oversight Board subpoena authority.[27]
Purpose
Representative Jim Sensenbrenner, who introduced the bill, stated that its purpose was:
According to the bill’s sponsors, their legislation would have amended Section 215 of the Patriot Act to ensure that any phone records obtained by the government were essential in an investigation that involved terrorism or espionage, thereby ending bulk collection,[8] while preserving “the intelligence community’s ability to gather information in a more focused way.”[29]
Background
Many members of Congress believed that in the wake of the Snowden disclosures, restoration of public trust would require legislative changes.[30] More than 20 bills have been written since the disclosures began with the goal of clarifying government surveillance powers.[18]
Sensenbrenner, who introduced the USA PATRIOT Act (H.R. 3162) in 2001 following the September 11 terrorist attacks to give more power to US intelligence agencies, and who has described himself as “author of the Patriot Act,”[31] declared that it was time to put the NSA’s “metadata program out of business.” With its bulk collection of Americans’ phone data, Sensenbrenner asserted that the intelligence community “misused those powers,” had gone “far beyond” the original intent of the legislation, and had “overstepped its authority.”[30][32]
An opinion piece by Leahy and Sensenbrenner, published in Politico, described the impetus for proposed changes,[33]saying:
Markup in House Judiciary Committee
In May 2014, the U.S. House Judiciary Committee posted a “Manager’s Amendment” on its website. Title VII of the Amendment read “Section 102(b)(1) of the USA Patriot Improvement and Reauthorization Act of 2005 (50 U.S.C. 1805 note) is amended by striking “June 1, 2015” and inserting “December 31, 2017,” extending the controversial USA PATRIOT Act through the end of 2017.[34] The Electronic Privacy Information Center (EPIC) has criticized the Patriot Act as unconstitutional, especially when “the private communications of law-abiding American citizens might be intercepted incidentally”.[35] James Dempsey, of the CDT, believes that the Patriot Act unnecessarily overlooks the importance of notice under the Fourth Amendment and under a Title III wiretap,[36] while the American Library Associationbecame so concerned that they formed a resolution condemning the USA PATRIOT Act, and which urged members to defend free speech and protect patrons’ privacy against the Act.[37]
The Guardian wrote “civil libertarians on the Judiciary Committee had to compromise in order to gain support for the act. Significantly, the government will still be able to collect phone data on Americans, pending a judge’s individualized order based on ‘reasonable articulable suspicion‘ – a standard preferred by the NSA – of wrongdoing, and can collect call records two degrees or ‘hops’ of separation from the individual suspected.”[23] Kara Brandeisky of ProPublica said, “some worry that the bill does not unequivocally ban bulk collection of American records. Again, a lot depends on how the Foreign Intelligence Surveillance Court interprets the statute.”[38]
The National Journal wrote “one tech lobbyist noted concern that a provision that would have allowed companies to disclose to customers more information about government data requests has been dropped. In addition, an external special advocate that would oversee the Foreign Intelligence Surveillance Court would no longer be selected by the Privacy and Civil Liberties Oversight Board. Instead, the court’s judges would designate five ‘amicus curiae‘ who possess appropriate security clearances.”[39]
The Electronic Frontier Foundation (EFF) stated it remained “concerned that this bill omits important transparency provisions found in the (original 2013) USA FREEDOM Act, which are necessary to shed light on surveillance abuses”. In addition, the EFF said it believed “this bill should do more to address mass surveillance under Section 702 of Foreign Intelligence Surveillance Amendments Act, a section of law used to collect the communications of users worldwide.”[40]The Open Technology Institute commented “several other key reforms—such as provisions allowing Internet and phone companies to publish more information about the demands they receive, which OTI and a coalition of companies and organizations have been pressing for since last summer—have been removed, while the bill also provides for a new type of court order that the President has requested, allowing for continuous collection by the government of specified telephone records.”[41]
Despite the criticism from civil liberties groups, Mike Rogers, a defender of the NSA‘s surveillance practices and the chairman of the House Intelligence Committee, praised the amendments. Rogers, who had his own bill which would codify the NSA’s surveillance practices in to law, called the proposed amendments a “huge improvement.” Foreign Policy wrote “any compromise to the Judiciary bill risks an insurrection from civil libertarians in Congress. Michigan Republican Justin Amashled such a revolt last year when he offered an NSA amendment to a defense appropriations bill that would have stripped funding for the NSA’s collection program.” “Just a weakened bill or worse than status quo? I’ll find out,” Representative Amash said.[42]
After the marked up bill passed the House Judiciary Committee USA Freedom Act co-author and Senate Committee on the Judiciary Chairman Patrick Leahycommented that he “remain concerned that the legislation approved today does not include some of the important reforms related to national security letters, a strong special advocate at the FISA Court, and greater transparency. I will continue to push for those reforms when the Senate Judiciary Committee considers the USA Freedom Act this summer.”[25]
Passage in House of Representatives
The House of Representatives passed on May 22, 2014 the USA Freedom act by 303 votes to 121.[43] Because the House version was weakened by lawmakers loyal to the intelligence establishment it lost support of important House Judiciary members like Republicans Darrell Issa, Ted Poe and Raul Labrador and Democrat Zoe Lofgren who previously voted for the act.[44] “The result is a bill that will actually not end bulk collection, regrettably,” said Rep. Zoe Lofgren who voted against the bill.[45] The act would shift responsibility for retaining telephonic metadata from the government to telephone companies. Providers like AT&T and Verizon would be required to maintain the records and let the NSA search them in terrorism investigations when the agency obtains a judicial order or in certain emergency situations.[46] The USA Freedom Act demands that the NSA get approval for a search from the Foreign Intelligence Surveillance Court before demanding that the telecoms hand over metadata. However, no “probable-cause” Fourth Amendment standard is required to access the database[45] While an allowable search under the original USA Freedom Act was defined as “a term used to uniquely describe a person, entity, or account”, but under the House version a database search inquiry is now allowed if it is “a discrete term, such as a term specifically identifying a person, entity, account, address, or device.”[45] Provisions that were dropped from the bill included requirements to estimate the number of Americans whose records were captured under the program, and the creation of a public advocate to challenge the government’s legal arguments before the Foreign Intelligence Surveillance Court.[47][48]
The passed House version[49] was criticised by U.S. senators, tech firms like Google, Apple, Microsoft, Facebook and Twitter, as well as civil liberties groups.[44][45][46][47][50] Senator Sen. Patrick Leahy, chair of the Senate Judiciary Committee and lead Democratic author of the Freedom Act, criticized the House version by saying in a statement: “Today’s action in the House continues the bipartisan effort to restore Americans’ civil liberties. But I was disappointed that the legislation passed today does not include some of the meaningful reforms contained in the original USA Freedom Act. I will continue to push for these important reforms when the Senate judiciary committee considers the USA Freedom Act next month.”[50] And Senator Ron Wyden stated he was “gravely concerned that the changes that have been made to the House version of this bill have watered it down so far that it fails to protect Americans from suspicionless mass surveillance.”[50]Major U.S. tech firms like Google, Apple, Microsoft, Facebook, and Twitter joined together in the Reform Government Surveillance coalition which called the House version a move in the wrong direction. The Reform Government Surveillance released a statement on June 5, stating: “The latest draft opens up an unacceptable loophole that could enable the bulk collection of Internet users’ data … While it makes important progress, we cannot support this bill as currently drafted and urge Congress to close this loophole to ensure meaningful reform.”[51] Mark Jaycox, a legislative analyst with the Electronic Frontier Foundation, said: “The bill is littered with loopholes. The problem right now, especially after multiple revisions, is that it doesn’t effectively end mass surveillance.”[44][44] Zeke Johnson, director ofAmnesty International USA’s security and human rights program, accusing the House for failing to deliver serious surveillance reform said: “People inside and outside the U.S. would remain at risk of dragnet surveillance. The Senate should pass much stronger reforms ensuring greater transparency, robust judicial review, equal rights for non-U.S. persons, and a clear, unambiguous ban on mass spying. President Obama need not wait. He can and should implement such safeguards today.” The White House however endorsed the bill. “The Administration strongly supports House passage of H.R. 3361, the USA Freedom Act. … The Administration applauds and appreciates the strong bipartisan effort that led to the formulation of this bill, which heeds the President’s call on this important issue,” the White House said in a statement.[51] “The bill ensures our intelligence and law enforcement professionals have the authorities they need to protect the Nation, while further ensuring that individuals’ privacy is appropriately protected when these authorities are employed. Among other provisions, the bill prohibits bulk collection through the use of Section 215, FISA pen registers, and National Security Letters.”[46][52]
Civil rights groups and scholars said the new language allowing the NSA to search meta data handed over from telephone companies was vague and perhaps would allow the NSA to ensnare the metadata of broad swaths of innocent people in violation of their constitutional rights. “In particular, while the previous bill would have required any request for records to be tied to a clearly defined set of ‘specific selection terms,’ the bill that just passed leaves the definition of ‘specific selection terms’ open. This could allow for an overly broad and creative interpretation, which is something we’ve certainly seen from the executive branch and the FISA Court before,” said Elizabeth Goitein, a co-director of the Brennan Center’s Liberty and National Security Program.[45] “The new definition is incredibly more expansive than previous definitions … The new version not only adds the undefined words “address” and “device,” but makes the list of potential selection terms open-ended by using the term “such as.” Congress has been clear that it wishes to end bulk collection, but given the government’s history of twisted legal interpretations, this language can’t be relied on to protect our freedoms,” said the Electronic Frontier Foundation in a press release.[51][53]
Defeat in the Senate
Negotiations among intelligence agencies, the White House, lawmakers and their aides, and privacy advocates in the summer of 2014 led to a modified bill (S. S.2685)[54] in the U.S. Senate. This bill version addressed most privacy concerns regarding the NSA program that collects records of Americans’ phone calls in bulk and other issues.[55]
Under the bill the NSA would no longer collect those phone records. Instead, most of the records would have stayed in the hands of the phone companies, which would not have been required to hold them any longer than they already do for normal business purposes, which in some cases is 18 months. The bill would require the NSA to request specific data from phone companies under specified limits i.e. the NSA would need to show it had reasonable, articulable suspicion that the number it is interested in is tied to a foreign terrorist organization or individual. The proposed legislation would still have allowed analysts to perform so-called contact chaining in which they trace a suspect’s network of acquaintances, but they would been required to use a new kind of court order to swiftly obtain only those records that were linked, up to two layers away, to a suspect — even when held by different phone companies. It would also require the federal surveillance court to appoint a panel of public advocates to advance legal positions in support of privacy and civil liberties, and would expand company reporting to the public on the scope of government requests for customers’ data. This USA Freedom Act version thus gained the support of the Obama Administration, including the director of national intelligence and attorney general, as well as many tech companies including Apple, Google, Microsoft and Yahoo as well as a diverse range of groups, including the National Rifle Association and the American Civil Liberties Union.[26][55]
Following the 2014 Congressional elections, the Senate voted on November 18, 2014, to block further debate of the measure during the 113th United States Congress. Fifty-four Democrats and four Republicans who supported consideration failed to muster the 60 votes required.[56] Senator Patrick Leahy, who drafted the bill, blamed its defeat on what he called fear-mongering by opponents, saying, “Fomenting fear stifles serious debate and constructive solutions.” Senator Mitch McConnell, the Republican leader, argued that the NSA’s bulk collection of Americans’ metadata was a vital tool in the fight against terrorism. “This is the worst possible time to be tying our hands behind our backs,” he said.[26]
114th Congress (2015-2016)
The USA Freedom Act was re-introduced in the House Judiciary Committee and Senate Judiciary Committee in late April 2015 based upon a modified version of the one which failed in the Senate in the 113th Congress.
The 2015 USA Freedom Act[57] version is described by its sponsors as “a balanced approach that would ensure the NSA maintains an ability to obtain the data it needs to detect terrorist plots without infringing on Americans’ right to privacy.”[5] Human rights groups believed the bill’s transparency and court oversight provisions are less robust than would have been required in a previous version of the bill, with more limited reporting requirements and a more narrowly defined role for external court advocates.[58]
The bill received a mixture of reaction, ranging from support from national security and computer trade groups, skepticism or moderate objection from civil liberties groups, to outright opposition from former NSA whistle blowers. The editorial board of the New York Times ran an editorial against the bill which “will be weakened further in the Senate by the majority leader” and advised readers to “get used to the protections of your civil liberties being minimally viable”.[59]
Passage out of House Judiciary Committee
The bill passed out of the House Judiciary Committee on April 30, 2015.[60] The proposed bill would end the NSA’s bulk collection under Section 215 by requiring the government to seek records from companies using a “specific selection term” that identifies a specific person, account or address and “is used to limit . . . the scope” of records sought. The term may not be a phone or Internet company.[5]
Amendments to strengthen the bill were voted down during Committee markup. One would have offered a constitutional advocate and failed by voice vote,[61] while another would have offered protection for whistle blower complaints.[62] Representative Jordan unsuccessfully argued for another amendment with the following dialog, “It’s not a vote to blow up the deal. It’s a vote for the Fourth Amendment. Plain and simple. All the Gentleman says in his amendment is, if you’re going to get information from an American citizen, you need a warrant.”[63] The bill ultimately received 25 votes in support (64%), 12 abstentions (31%), and 2 in opposition (5%).[64]
House Judiciary Chairman Bob Goodlatte said “the USA Freedom Act reforms our nation’s intelligence-gathering programs to ensure they operate in a manner that reflects core American values … We urge both the House and Senate to move expeditiously on this legislation so that we rein in government overreach and rebuild trust with the American people”.[65]
Representative Ted Poe was one member to vote against the bill. “Between the Committee vote and the House floor the bill was changed and it now confused what should have been clarified. The version of the USA Freedom Act that passed the House today leaves room for different interpretations, potentially giving NSA the ability to continue to act outside the intent of Congress and the Constitution. I could not support a bill that may allow abuses of the fourth amendment to continue,” he said.[66]
Reaction
National security and trade groups
The Center for National Security supports the USA Freedom Act introduced on April 28, 2015 to end bulk collection of Americans’ telephone metadata under the so-called “section 215” program.[67]
The Software Alliance sponsored the legislation saying “in reforming government surveillance practices, it is critical that legislation strikes the right balance between securing our nation and its citizens and improving privacy protections for the public. The FISA reforms in the USA FREEDOM Act will help restore trust in both the US government and the US technology sector.”[68]
The ITIC said “the USA Freedom Act, H.R. 2048, builds on the foundation laid by the House Judiciary Committee last Congress and the result is a bill that strengthens privacy protections while maintaining the interests of national security.”[69]
Civil liberties advocates
The final USA Freedom Act is perceived as containing several concessions to pro-surveillance legislators meant to facilitate its passage.[6][70] The watered down version of the USA Freedom Act that passed the House of Representatives in 2015 has been widely criticized by civil liberties advocates and its original supporters amongst house members for extending the Patriot Act Mass surveillance programs without meaningful restraints, undermining the original purpose of the bill. [71]
“This bill would make only incremental improvements, and at least one provision-the material-support provision-would represent a significant step backwards,” ACLU deputy legal director Jameel Jaffer said in a statement. “The disclosures of the last two years make clear that we need wholesale reform.” Jaffer wants Congress to let Section 215 sunset completely and wait for a better reform package than endorse something half-baked[72], saying that “unless that bill is strengthened, sunset would be the better course.”[73] The ACLU had previously written of the 2013 version that “although the USA Freedom Act does not fix every problem with the government’s surveillance authorities and programs, it is an important first step and it deserves broad support.”[74][75]
Representative Justin Amash, author of the narrowly defeated Amash Amendment, a proposal that would have de-funded the NSA bulk-collection program, backed the 2013 legislation, but not the final 2015 version[76]. “It’s getting out of control,” he commented. “[Courts are issuing] general warrants without specific cause…and you have one agency that’s essentially having superpowers to pass information onto others”.[32]
According to Deputy Attorney General James Cole, even if the Freedom Act becomes law, the NSA could continue its bulk collection of American’s phone records. He explained that “it’s going to depend on how the [FISA] court interprets any number of the provisions” contained within the legislation.[8]Jennifer Granick, Director of Civil Liberties at Stanford Law School, stated:
International human rights groups remain somewhat skeptical of specific provisions of the bill. For example, Human Rights Watch expressed its concern that the “bill would do little to increase protections for the right to privacy for people outside the United States, a key problem that plagues U.S. surveillance activities. Nor would the bill address mass surveillance or bulk collection practices that may be occurring under other laws or regulations, such as Section 702 of the FISA Amendments Act or Executive Order 12333. These practices affect many more people and include the collection of the actual content of internet communications and phone calls, not just metadata”.[77] Zeke Johnson, Director of Amnesty International‘s Security and Human Rights Program, agreed that “any proposal that fails to ban mass surveillance, end blanket secrecy, or stop discrimination against people outside the U.S. will be a false fix”.[11]
Members of the anti-surveillance Civil Liberties Coalition are dismissing the USA Freedom Act in support of the Surveillance State Repeal Act, a far more comprehensive piece of legislation in the House that completely repeals the Patriot Act, as well as 2008’s FISA Amendments Act.[72] A group of 60 organizations called Congress to not stop at ending the NSA’s bulk collection of telephone information under the USA PATRIOT Act, but to also end the FISA Amendments Act and Executive Order 12333 mass surveillance programs and restore accountability for bad actors in the Intelligence Community.[9]
The Center for Democracy and Technology endorses the bill, but it points out that it doesn’t limit data retention for information collected on people who turn out to have no connection to a suspect or target, and emphasizes that this is not an omnibus solution.[72] The group argued the bill had to be supported because “the Senate will weaken the USA FREEDOM Act right before the sunset deadline, forcing the House to accept a weaker bill”.[78]
“This bill purports to ban certain acts under narrow authorities, but it doesn’t ban those behaviors outright. Nor does it increase meaningful oversight of the NSA,” said David Segal, executive director of Demand Progress, who wants Section 215 to expire. The group said “a vote for a bill that does not end mass surveillance is a vote in support of mass surveillance.”[79]
“Companies are provided monetary incentive to spy and share that information with the government and blanket liability once they do under USA Freedom — even if that breaks that law,” said Sascha Meinrath, the director of X-lab, an independent tech policy institute previously associated with New America. “Once companies receive that, they’ll have almost no reason to weigh in on meaningful surveillance reform.”[79] “In a way, it’s kind of like PRISM,” the program revealed by Snowden where major tech companies turned over the content of online communications to the NSA, said longtime independent surveillance researcher Marcy Wheeler. “It pushes things to providers: Everyone gets immunity, but it doesn’t add to the privacy.”[79]
“We think of the USA Freedom Act as yesterday’s news,” said Shahid Buttar of the Bill of Rights Defense Committee, “and we’re interested in forcing the [intelligence] agencies into a future where they comply with constitutional limits.” “If passed, it’ll be the only step,” predicted Patrick Eddington of the Cato Institute, a former House staffer, since the next expiration date for a major piece of surveillance legislation is 31 December 2017.[80]
Following the law’s passage on June 2, 2015, ACLU deputy legal director Jameel Jaffer claimed that “This is the most important surveillance reform bill since 1978, and its passage is an indication that Americans are no longer willing to give the intelligence agencies a blank check.”[81]
Former whistleblowers
Former NSA crypto-mathematician William Binney, who worked three decades at the agency, says the Freedom Act – widely seen as having the best chance of any surveillance-limiting proposal – “won’t do anything” if it passes. “Why do you think NSA [and other intelligence agencies] support it?” he says.[12][12]
Drake, a former NSA senior executive prosecuted unsuccessfully under the Espionage Act before pleading guilty to a misdemeanor in 2011, calls the bill the “Free-dumb Act 2.0,” and says he sees it as a ploy by government officials “to keep the status quo in place.” He also says the fixation on the call record program in public debate is unfortunate, because NSA Internet surveillance is far broader and more invasive. “It’s a shiny, shiny bright spot, [but] there’s a whole lot more being collected,” he says, including a “staggering” amount of American communications. Drake believes support from the Obama administration for the Freedom Act is motivated in part by a desire to hobble lawsuits against the call record program, three of which are pending with appeals courts and may lay the groundwork for a major Supreme Court privacy ruling.[12]
Wiebe, formerly a senior analyst at the NSA, says the anticipated Freedom Act likely will be “more of the same” and is “not going to change anything” in a meaningful way. Like Drake, he has no hope for meaningful reform and doesn’t believe efforts to lobby Congress would work. “We’ve tried,” he says. “It makes no difference.” He believes well-funded government contractors and powerful, “co-opted” lawmakers who lead key committees make up a virtually unstoppable surveillance-industrial complex.[12]
House Passage
The USA Freedom Act passed the U.S. House of Representatives on May 13, 2015.[82] The bill received broad support in the House, with 338 votes for the bill and 88 against it. It was passed without any amendments to the House Judiciary version because the House Rules Committee prohibited consideration of any amendment to the USA Freedom Act, claiming that any changes to the legislation would have weakened its chances of passage.[83] The bill had the support of the White House, Attorney General Eric Holder and Director of National Intelligence James Clapper. While civil liberties groups were divided over the support of the bill, lawmakers opposed to the Bill stated it will handicap the NSA and allow terrorist groups to prosper.[84]
Passage in Senate
The USA Freedom Act was not passed by the U.S. Senate on May 22, 2015. By a vote of 57-42, the Senate did not pass the bill that would have required 60 votes to move forward, which means that the NSA must start winding down its domestic mass surveillance program this week. The Senate also rejected, by 54-45, also short of the necessary 60 votes, a two-month extension for the key provision in the Patriot Act that has been used to justify NSA spying, which is set to expire on June 1, 2015.[85][86][87]
However, on May 31, 2015, the Senate voted 77-17 to limit debate on the act. Senate rules will allow it to be passed after the mass surveillance programs have expired.[88] Richard Burr, chair of the Senate Intelligence Committee, had three amendments he planned to offer to the bill which were likely to further increase opposition to the bill.[89] While several amendments which would strengthen the bill were not allowed to be considered, three amendments to weaken the bill, considered “poison pills”, were allowed to be considered but ultimately rejected.[90]
The bill ultimately passed the Senate 67-32 on June 2, 2015 and was signed into law.[91] “After a needless delay and inexcusable lapse in important national security authorities, my administration will work expeditiously to ensure our national security professionals again have the full set of vital tools they need to continue protecting the country,” Obama said.[92]
http://en.wikipedia.org/wiki/USA_Freedom_Act
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