USA Freedom Act
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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, was referred to the United States House Judiciary Subcommittee on Crime, Terrorism, Homeland Security and Investigations January 9, 2014,[full citation needed] and the Senate version, [full citation needed], introduced by Senator Patrick Leahy, was read twice and referred to the Senate Committee on the Judiciary. An amended version out of the House Judiciary Committee contained many provisions raising concerns among civil libertarians, including an extension of the controversial USA PATRIOT Act through the end of 2017.[full citation needed] The bill will be considered in the Senate through the summer of 2014.
The USA Freedom Act[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. Other proposed changes include limits to programs like PRISM, which "incidentally" retains Americans' Internet data, and greater transparency by allowing companies such as Google and Facebook to disclose information about government demands for information.
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.
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, while preserving "the intelligence community's ability to gather information in a more focused way." A May 2014 amended version of the bill would also extend the controversial USA PATRIOT Act through the end of 2017. 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".
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.
Many members of Congress believed that in the wake of the Snowden disclosures, restoration of public trust would require legislative changes. More than 20 bills have been written since the disclosures began with the goal of reining in government surveillance powers.
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", 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".
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.
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. 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". 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, 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.
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". 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".
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."
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". 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."
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.
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."
Passage in House of Representatives
The House of Representatives passed on May 22, 2014 the USA Freedom act by 303 votes to 121. 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. "The result is a bill that will actually not end bulk collection, regrettably," said Rep. Zoe Lofgren who voted against the bill. 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. 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 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." 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.
The passed House version was criticised by U.S. senators, tech firms like Google, Apple, Microsoft, Facebook, and Twitter as well as civil liberties groups. 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.” 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." 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.” 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.”  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. "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."
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. “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.
The Act has bipartisan support, evenly split between Democrats and Republicans. As of May 8, 2014, it had 150 co-sponsors in the House and 21 in the Senate. 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.
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".
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. 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.
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."
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". 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".
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