Senator Patrick Leahy and Representative Jim Sensenbrenner have introduced a new bill, called the Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act (USA FREEDOM Act), designed to dramatically curtail the ability of the NSA to collect information on the average United States citizen.
The bill is broad. Its key elements are the reformation of how Section 215 of the Patriot Act, and Section 702 of the Foreign Intelligence Surveillance Act (FISA) can be used by the NSA to support their operations. Limiting those authorities could dramatically undercut the NSA’s reach.
The bill’s official summary claims that it will end bulk collection of certain records that is currently based on Section 215’s authority, limiting collection to things that deal directly with terrorism or “clandestine intelligence” that are linked to foreign agents, foreign “power,” or suspected foreign agents, or individuals in contact with a foreign “power.” In short, no more collecting mass data on Americans.
It appears that this would end the collection of American citizens’ phone records, something that the NSA currently collect and stores.
The USA FREEDOM Act also has new rules in place to constrain other legal methods – FISA pen registers, National Security Letters, and “trap and trace” statutes – so that they cannot in turn be used to “justify bulk collection.” This closes what could have been an open door for the NSA to continue its current operations, but under a separate authority structure.
Moving on, Senator Leahy’s office’s summation of the bill claims that it “closes [the] NSA’s ‘back door’ access to Americans’ communications by requiring a court order” for a search of their communications, in data that is collected under Section 702 sans an individual warrant. This provides increased protection of Americans’ communications information that is already collected, which is disappointing. Still, it’s an improvement.
Also regarding Section 702, the bill boosts the “prohibition on ‘reverse targeting’ of Americans.” This means that the NSA can’t target a foreigner’s communications, simply to get at the communication of an American. It’s good that they can’t do that, and even better that this bill builds that wall higher.
Briefly, the Act would also sunset the FISA Amendments Act two years earlier, in 2015, than it is currently scheduled. This would put its end date in the same timeframe as the expiring elements of the Patriot Act. Therefore, Section 215 and Section 702 would come up for re-passage at the same time. The goal of this, again according to Leahy, is to ensure “proper congressional review.”
The Act would put in place a new “Special Advocate” to speak up for privacy during operation of the FISA Court’s secret operations. It would also put in place a “process for public release of FISA Court opinions” when they include legal interpretation that could be important for the public to know and understand.
The bill would also allow companies to disclose “an estimate” of the number of FISA orders and National Security Letters that they have received, as well as allow them to comment on how many they complied with, and when relevant, the number of users and accounts impacted. This is something that Google, Microsoft, Facebook and others have requested.
When the news of PRISM was first disclosed, tech giants were pilloried for their participation, even though they were unable to comment on much, due to legal gags on their speech. The USA FREEDOM Act would directly lift some of those restrictions.
Continuing, the Act would force the government to release an estimate of the number of individuals and United States citizens who were “subject to various types of FISA orders and whose information was reviewed by federal agents.” This forces the government to disclose its work, and therefore perhaps limit abuse by requiring transparency.
That’s quite a lot. However, I am unsure how the above would impact programs such as XKeyscore, the tapping of the core fiber cables of the Internet, and the cracking of encryption software. The NSA does more than operate under the authority of Sections 215 and 702.
The bill is a solid first effort, but does not go far enough. We will likely see other bills of similar ilk. This specific bill is interesting given that one of its authors, Representative Sensenbrenner, played a key role in the creation of the Patriot Act, something that he is now trying to rein in.
This is the Snowden Effect in legislative form.
Top Image Credit: ttarasiuk