This article by Kurt Opsahl was originally published May 7 by the Electronic Frontier Foundation.
Earlier today, the House Judiciary Committee passed a revised version of the USA FREEDOM Act. We’re pleased by Congress’ strong step toward ending bulk surveillance of phone records of Americans. This bill is a good start toward reforming an out-of-control surveillance state, and we urge members of Congress to support it as the bill moves forward through the legislative process.
The USA FREEDOM Act includes a definition of call detail records which excludes cell site location data, a provision that will help safeguard the location privacy of millions of Americans from mass NSA surveillance. However, we remain concerned that the bill allows prospective collection—collection of records that have not yet been created—up to 180 days.
There are a number of surveillance issues that are not yet addressed by the current version of the USA FREEDOM Act. In particular, the bill does not address the collection authority under Section 702 of the FISA Amendments Act. The bill fails to fix the “backdoor loophole,” in which the NSA interprets the law to allow searches of the data collected under Section 702 for the purpose of finding communications of a United States person. Section 702 authorities need to be sharply limited to ensure that collection is only possible for communications to and from a designated target, not merely those who mention a target in a communication. The scope of Section 702 should be limited by requiring a description of who, what, and where the NSA is targeting.
In addition, the FISA court reform provisions in the current version of the USA FREEDOM Act provide a starting point, but more is needed to ensure a fair adjudication of surveillance authorization. The legislation has a provision that allows the FISA court to assign amici, meaning non-parties can brief issues before the court. But the court has already determined that it has the authority to do this. In fact, EFF filed a brief with the court just this year on an evidence preservation issue. The bill must go further and introduce a special privacy advocate who can review, challenge, and appeal orders in the highly secretive FISA Court orders.
Furthermore, the transparency amendment that was included in the bill did not go far enough, simply codifying the Department of Justice’s existing permission to report in broad bands. This legislation should provide stronger transparency provisions to ensure that users know, with as much granularity as possible, how and when the government issues orders for user data and how many accounts are affected. This is a vital check against government surveillance abuses.
And finally, we urge Congress to acknowledge that non U.S. persons have fundamental rights to privacy, and NSA surveillance should be the minimum necessary to achieve a desired result and proportionate to the actual threat.
The new version of the USA FREEDOM Act is a strong first step to undoing the damage of the government’s tortured interpretation of the PATRIOT Act. The Judiciary Committee should be commended for moving the conversation on reforming the NSA’s activities forward. We urge Congress to support this bill and to support additional privacy protections to address outstanding issues, whether through amendments or other legislative vehicles.