USA Freedom Act

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Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online Monitoring Act
Great Seal of the United States
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
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[1] 21 in Senate[2]
Effects and Codifications
Act(s) affected Foreign Intelligence Surveillance Act of 1978, 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

The USA FREEDOM Act or Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection and Online Monitoring Act is a bill that was introduced in both houses of the U.S. Congress on October 29, 2013.

The House version, introduced by Representative Jim Sensenbrenner as HR 3361,[3] was referred to the United States House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations January 9, 2014,[4][full citation needed] and the Senate version, [5][full citation needed], introduced by Senator Patrick Leahy, was read twice and referred to the Senate Committee on the Judiciary.[4] An amended version out of the House Judiciary Committee contained many provisions raising concerns among civil libertarians,[6] including an extension of the controversial USA PATRIOT Act through the end of 2017.[7][full citation needed][8] The bill will be considered in the Senate through the summer of 2014.[8]

Purpose[edit]

The USA Freedom Act[9][full citation needed] was supposed to end the bulk collection of Americans' metadata, end the secret laws created by the FISA court, and introduce a "Special Advocate" to represent public and privacy matters.[10][11][12] Other proposed changes include limits to programs like PRISM, which "incidentally" retains Americans' Internet data,[13] and greater transparency by allowing companies such as Google and Facebook to disclose information about government demands for information.[14]

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.[10][15]

According to the bill's sponsors, their legislation would amend 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,[16] while preserving "the intelligence community's ability to gather information in a more focused way."[17] A May 2014 amended version of the bill would also extend the controversial USA PATRIOT Act through the end of 2017.[18] 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".[19]

The bill is made up of 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.[20]

Background[edit]

Many members of Congress believed that in the wake of the Snowden disclosures, restoration of public trust would require legislative changes.[21] More than 20 bills have been written since the disclosures began with the goal of reining in government surveillance powers.[13]

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",[22] 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".[21][23]

An opinion piece by Leahy and Sensenbrenner, published in Politico, described the impetus for proposed changes,[24] 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.[17]

Markup in House Judiciary Committee[edit]

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.[25] 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".[19] 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,[26] while the American Library Association became 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.[27]

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".[6] 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".[28]

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."[29]

The Electronic Frontier Foundation (EFF) stated it remained "concerned that this bill omits important transparency provisions found in the 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".[30] 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."[31]

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 Amash led 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.[32]

After the marked up bill passed the House Judiciary Committee USA Freedom Act co-author and Senate Committee on the Judiciary Chairman Patrick Leahy commented 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."[8]

Passage in House of Representatives[edit]

The House of Representatives passed on May 22, 2014 the USA Freedom act by 303 votes to 121.[33] Because the House version was weakened by lawmakers loyal to the intelligence establishment it lost support of important House Judiciaty members like Republicans Darrell Issa, Ted Poe and Raul Labrador and Democrat Zoe Lofgren who previously voted for the act.[34] "The result is a bill that will actually not end bulk collection, regrettably," said Rep. Zoe Lofgren who voted against the bill.[35] 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.[36] 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[35] 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."[35] 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 Intellgigence Surveillance Court.[37][38]

The passed House version[39] was criticised by U.S. senators, tech firms like Google, Apple, Microsoft, Facebook, and Twitter as well as civil liberties groups.[40][35][34][36][37] Senator Sen. Patrick Leahy, chair of the Senate Judiciary Committee and lead Democratic author of the Freedom Act, criticsed 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.”[40] And Senator Ron Whyden 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."[40] 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.”[41] 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.”[34] [34] Zeke Johnson, director of Amnesty 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.[41] "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."[36][42]

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.[35] “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.[41][43]

Reaction[edit]

The Act has bipartisan support, evenly split between Democrats and Republicans. As of May 8, 2014, it had 150 co-sponsors in the House[1] and 21 in the Senate.[2] Viewed as one of the most comprehensive of the similar bills introduced since the NSA leaks, the USA Freedom Act has support or qualified support from a diverse range of groups such as the ACLU, Mozilla, and the NRA.[13][44]

Representative Justin Amash, author of the narrowly-defeated Amash Amendment, a proposal that would have de-funded the NSA, backed the legislation. "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".[23]

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.[16] 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.[16]

Opponents of global surveillance have called for the bill to be strengthened. The Electronic Frontier Foundation (EFF) released a statement saying "we consider this bill to be a floor, not a ceiling". The ACLU wrote 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."[45][46]

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".[47] 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".[48]

See also[edit]

References[edit]

  1. ^ a b "Bill Summary & Status 113th Congress (2013–2014) H.R.3361". THOMAS, Library of Congress. Retrieved 8 May 2014. 
  2. ^ a b "Bill Summary & Status 113th Congress (2013–2014) H.R.3361". THOMAS, Library of Congress. Retrieved 8 May 2014. 
  3. ^ H.R. 3361
  4. ^ a b "Bill Summary & Status 113th Congress (2013–2014) H.R.3361". THOMAS, Library of Congress. 
  5. ^ S. 1599
  6. ^ a b The Guardian: Chairman of key House committee agrees to proceed with NSA reform bill
  7. ^ "House Judicicary Committee: Manager's Amendment to USA Freedom Act". "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’’." 
  8. ^ a b c Ackermann, Spencer (7 May 2014). "USA Freedom Act unanimously clears House Judiciary Committee". The Guardian. Retrieved 24 May 2014. "As amended, the USA Freedom Act would push back the expiration of Section 215 to the end of 2017, when Section 702 is set to expire. The current expiration is 1 June of next year. Some legislators are already whispering that allowing Section 215 to expire wholesale in 2015 is a preferable reform." 
  9. ^ "Bill Summary & Status: 113th Congress (2013–2014) H.R.3361 CRS Summary". THOMAS, Library of Congress. 
  10. ^ a b Roberts, Dan. "The USA Freedom Act: a look at the key points of the draft bill". Guardian.com. Retrieved 18 January 2014. 
  11. ^ Wilhelm, Alex (2013-10-29). "Proposed USA FREEDOM Act Would Dramatically Curtail The NSA's Surveillance". TechCrunch.com. Retrieved 18 January 2014. 
  12. ^ 'Patriot Act' Author Seeks 'USA Freedom Act' to Rein In NSA – US News and World Report. Usnews.com (October 10, 2013).
  13. ^ a b c Gallagher, Rhan. "U.S. Lawmakers Launch Assault on NSA Domestic Snooping". Slate.com. Retrieved 18 January 2014. 
  14. ^ "USA Freedom Act Would Leash the National Security Agency". Businessweek. Bloomberg. 2013-10-31. Retrieved 18 January 2014. 
  15. ^ Sensenbrenner, Jim. "The USA Freedom Act". House.gov. Retrieved 18 January 2014. 
  16. ^ a b c Granick, Jennifer (2013-12-16). "NSA's Creative Interpretations Of Law Subvert Congress And The Rule Of Law". Forbes. Retrieved 18 January 2014. 
  17. ^ a b Leahy, Sen. Patrick; Sensenbrenner, Rep. Jim (29 October 2013). "The case for NSA reform". Politico. Retrieved 18 January 2014. 
  18. ^ House Judicicary Committee: Manager's Amendment to USA Freedom Act
  19. ^ a b "Analysis of Specific USA PATRIOT Act Provisions: Expanded Dissemination of Information Obtained in Criminal Investigations". Analysis. Electronic Privacy Information Center. Retrieved July 11, 2008. 
  20. ^ "Bill Text 113th Congress (2013–2014) H.R.3361.IH". THOMAS, Library of Congress. Retrieved 2014-03-09. 
  21. ^ a b Roberts, Dan (2013-10-10). "Patriot Act author prepares bill to put NSA bulk collection 'out of business'". Guardian. Retrieved 20 January 2014. 
  22. ^ Editorial Board (2013-06-06). "President Obama's Dragnet". New York Times. 
  23. ^ a b Krietz, Andrew (2013-10-15). "Amash-backed bill aimed to end NSA spying programs garners even bipartisan support". Retrieved 20 January 2014. 
  24. ^ Shabad, Rebecca (2014-01-16). "Sen. Leahy on NSA claim: 'Baloney'". The Hill.com. Retrieved 18 January 2014. 
  25. ^ "Amendment in the nature of a substitute to H.R. 3361 offered by Mr. Sensenbrenner of Wisconsin a.k.a. House Judicicary Committee: Manager's Amendment to USA Freedom Act". House Judicicary Committee. 5 May 2014. Retrieved 24 May 2014. 
  26. ^ James X. Dempsey, "Why Sections 209, 212, and 220 Should be Modified" (undated). Retrieved October 15, 2007.
  27. ^ "Resolution on the USA Patriot Act and Related Measures That Infringe on the Rights of Library Users". American Library Association. January 29, 2003. Retrieved July 11, 2008. 
  28. ^ ProPublica: What the Proposed NSA Reforms Wouldn’t Do
  29. ^ National Journal: House Panels Race Against Each Other to Reform NSA Spying
  30. ^ EFF Statement on Rep. Sensenbrenner's USA FREEDOM Act Amendment
  31. ^ Open Technology Institute: OTI Statement on New Version of Surveillance Reform Bill, The USA FREEDOM Act
  32. ^ Foreign Policy: Key NSA Defender: Congress 'A Lot Closer' On Surveillance Reform
  33. ^ "Final Vote Results for Roll Call 230". clerk.house.gov. 22 May 2014. Retrieved 11 July 2014. 
  34. ^ a b c d Alexander Reed Kelly (23 May 2014). "USA Freedom Act Passes House With Protests and Sighs". Truth Dig. Retrieved 24 May 2014. 
  35. ^ a b c d e Kravets, David (22 May 2014). "NSA reform falters as House passes gutted USA Freedom Act". Ars Technica. Retrieved 24 May 2014. 
  36. ^ a b c Peterson, Andrea (22 May 2014). "NSA reform bill passes House, despite loss of support from privacy advocates". The Washington Post. Retrieved 24 May 2014. 
  37. ^ a b Dilanian, Ken (22 May 2014). "House votes to end NSA bulk collection of Americans' phone records _ but restraints limited". The Star Tribune via Associated Press. Retrieved 24 May 2014. 
  38. ^ Dilanian, Ken (23 May 2014). "House passes curbs on NSA phone surveillance". The Associated Press. MSN News. Retrieved 24 May 2014. 
  39. ^ "H.R. 3361 USA Freedom act as passed by the U.S. House of Representatives on May 22, 2014". thomas.loc.gov. 22 May 2014. Retrieved 24 May 2014. 
  40. ^ a b c Roberts, Dan (22 May 2014). "NSA surveillance reform bill passes House by 303 votes to 121". The Guardian. Retrieved 24 May 2014. 
  41. ^ a b c Christian Brazil Bautista (22 May 2014). "Congress passes NSA reform bill riddled with loopholes". Digital Trends. Retrieved 24 May 2014. 
  42. ^ "Statement of Administration Policy H.R. 3361 - USA Freedom Act (Rep. Sensenbrenner, R-Wisconsin, and 152 cosponsors)". Office of Management and Budget at Executive Office of the President. Office of Management and Budget at Executive Office of the President. 21 May 2014. Retrieved 24 May 2014. 
  43. ^ Marc Jacox and Nadia Kayyali (20 May 2014). "EFF Dismayed by House's Gutted USA FREEDOM Act". Electronic Frontier Foundation. Retrieved 24 May 2014. 
  44. ^ Handerson (2013-10-29). "The Freedom Act will Help Rebuild User Trust in the Internet". The Mozilla Blog. Retrieved 18 January 2014. 
  45. ^ Kurt Opsahl and Rainey Reitman (2013-11-14). "A Floor, Not a Ceiling: Supporting the USA FREEDOM Act as a Step Towards Less Surveillance". Electronic Frontier Foundation. 
  46. ^ Michelle Richardson (2013-10-29). "The USA FREEDOM Act is Real Spying Reform". American Civil Liberties Union. 
  47. ^ Human Rights Watch: US: Modest Step by Congress on NSA Reform
  48. ^ Amnesty International: Congress Must Put Human Rights at the Center of Surveillance Reform

External links[edit]