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America could have real NSA reform before the end of this year
After last week’s election, it didn’t look like Congress was going to do much legislating during the rest of this year’s lame duck session; however, a Wednesday evening announcement suggests that at least one big bill may be heading for a vote. Senate Majority Leader Harry Reid (D – Nev.) indicated that he filed a procedural motion on the USA FREEDOM Act, meaning the bill could get an up-or-down vote in the Senate as early as next week. If the legislation passes the Senate it could become the law of the land before the end of the year.
Introduced by Sen. Pat Leahy (D – Vt.) and Rep. Jim Sensenbrenner (R- Wis.), the USA FREEDOM Act is aimed at reforming the National Security Agency by curtailing some of the agency’s powers to conduct surveillance on the electronic communications of American citizens.
The bill would prohibit the NSA from indiscriminately collecting and storing the cell phone metadata of all Americans—a program revealed by whistleblower Edward Snowden. It would also introduce greater transparency into the Foreign Intelligence Surveillance Court through new disclosure rules and the appointment of a “public advocate,” who would be present during court proceedings.
The USA FREEDOM Act is an acronym for “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet Collection, and Online Monitoring” Act.
“Although far too many good bills continue to collect dust on Senator Reid’s desk, I am pleased he has finally decided to move the USA FREEDOM Act. There is no excuse not to pass this fundamental piece of legislation during the lame duck,” Sensenbrenner said in a statement. “Senator Leahy and I introduced the USA FREEDOM Act over a year ago. It is past-time for Washington to ensure Americans’ civil liberties are protected while preserving important intelligence gathering authorities that are vital to our national security.”
Sensenbrenner, ironically, was the legislator who introduced the USA PATRIOT Act, the piece of post-9/11 legislation that granted the NSA much of these surveillance powers in the first place.
Upon its introduction in 2013, the bill was cheered by privacy activists as a way to stop the government from violating citizens’ Fourth Amendment rights against unreasonable search and seizure. However, over the course of the past year, the bill as been significantly amended to the point where many of the bill’s initial supporters have subsequently come out in opposition.
One of the biggest sticking points was a modification to the bill’s language indicating what data the NSA would be allowed to collect. The original version limited it to terms “used to uniquely describe a person, entity, or account,” whereas the current version now adds addresses and devices to things that could be identified as targets. In addition, it inserts the words “such as,” which could allow for an interpretation of the law that grants far more wiggle room than the otherwise tightly worded rules would allow.
Critics also charge that the updated version of the bill also weakens disclosure requirements for companies that provide data on their users to the government.
Civil liberties-minded lawmakers like Reps. Justin Amash (R – Mich.), Anna Eshoo (D – Calif.), Zoe Lofgren (D – Calif.), and Jared Polis (D – Colo.) who had signed up as co-sponsors to the legislation, all ended up voting against the bill when it came up in the House of Representatives earlier this year. Nevertheless, the bill passed the House by a 182-vote margin.
A coalition of tech companies including Google, Apple, and Microsoft—which were worried that a global perception of the U.S. government being able to snoop on all online traffic going through the systems of American firms would hurt their bottom lines—originally cheered the bill. After the revisions, the tech giants sent an open letter to Congress expressing their disappointment:
Unfortunately, the version that just passed the House of Representatives could permit bulk collection of Internet “metadata” (e.g. who you email and who emails you), something that the Administration and Congress said they intended to end. Moreover, while the House bill permits some transparency, it is critical to our customers that the bill allow companies to provide even greater detail about the number and type of government requests they receive for customer information. It is in the best interest of the United States to resolve these issues.
Confidence in the Internet, both in the U.S. and internationally, has been badly damaged over the last year. It is time for action. As the Senate takes up this important legislation, we urge you to ensure that U.S. surveillance efforts are clearly restricted by law, proportionate to the risks, transparent, and subject to independent oversight.
The revamped bill’s critics worried that, instead of reigning in government surveillance, the USA FREEDOM Act just served to codify the most damaging of those practices further into law.
Even so, the bill still does have a significant number of supporters. For example, Central Intelligence Agency Chief James Clapper and Attorney General Eric Holder both recently endorsed the bill, calling it a “reasonable compromise.”
For their part, many of civil liberties groups have admitted that the watered down bill isn’t perfect, but still advocate for it’s passage.
“Passage of the USA FREEDOM Act would be an important step forward for restoring Americans’ privacy and rebuilding trust in our government,” said Nuala O’Connor, president of the open Internet advocacy nonprofit Center for Democracy and Technology, in a statement. “The specter of surveillance has hung over this Congress for the last year and a half. Congress should seize the opportunity to act in a decisive, bipartisan manner to bring about the surveillance reform Americans have been calling for.”
The USA FREEDOM Act was something that House Judiciary committee Chairman Bob Goodlatte (R – Va.) said in an interview prior to the election would be one of the first items on the GOP’s agenda if they took control of the Senate in the midterm elections.
President Obama has indicated that he would sign the bill if it were sent to his desk. If passed, it would be the first piece of legislation significantly reforming the American surveillance state since 9/11.
Photo by Frédéric BISSON/Flickr (CC BY 2.0), Remix by Jason Reed
Aaron Sankin is a former Senior Staff Writer at the Daily Dot who covered the intersection of politics, technology, online privacy, Twitter bots, and the role of dank memes in popular culture. He lives in Seattle, Washington. He joined the Center for Investigative Reporting in 2016.