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USA FREEDOM Needs Its Transparency Provisions Back

The House Judiciary Committee will, after months of delay, mark up an amended version of the bipartisan USA FREEDOM Act tomorrow. But many of the original bill’s most important transparency provisions have been removed or modified.

The original USA FREEDOM Act required public annual reports from the government that included the total or a good faith estimate, rounded to the nearest 100, of the number of individuals and U.S. persons:

  • Who were subjected to electronic surveillance conducted under a Foreign Intelligence Surveillance Court (FISC) order
  • Who were targeted by “the installation and use of a pen register or trap and trace device,”
  • Whose communications were produced under the “business records” provision of section 215 of the PATRIOT Act
  • Whose communications were collected under section 702, 703 or 704 of the Foreign Intelligence Surveillance Act
  • Whose communications were reviewed or accessed by a federal agent or officer after being collected under the above authorities subsequently reviewed by a federal officer or agent.

The original bill required public reports every 6 months on the total number of requests using National Security Letters, broken out by the number concerning U.S. persons and non-U.S. persons. It also allowed telecommunications and internet companies to issue quarterly reports estimating, to the nearest 100, the number of requests for information they received from the government under surveillance laws and the numbers of users or accounts affected.

The revised version leaves out all of these reporting requirements—and leaves the American public without a reliable way to determine whether the NSA has access to their phone and e-mail records.

Reports about the numbers affected by surveillance may seem less important than the underlying limits on bulk collection. But the new bill’s privacy protections are also more ambiguous than the original USA FREEDOM act, and leave key terms undefined. For example, the bill requires that orders for the production of “tangible things” such as call records under Section 215 of the PATRIOT Act include “a specific selection term to be used as the basis for the production.” But it does not currently provide a definition for a “specific selection term.” (UPDATE: now it does--see below)

The bill also weakens the USA FREEDOM Act’s privacy protections. It drops the original USA FREEDOM Act’s limits on “backdoor searches” under Section 702 of FISA, which increases the importance of public reporting on the number of U.S. persons whose communications are collected under section 702. Unlike the original USA FREEDOM Act, the revised bill explicitly authorizes collection of call records of numbers at least “two hops” away from a selector, without any showing of “reasonable articulable suspicion” that those numbers are associated with a foreign power or a foreign agent. And even the original USA Freedom Act did not address the NSA’s “incidental collection” of Americans' information under Executive Order 12333, or its analysis of Americans' phone and email records once those records entered NSA’s “corporate store.”

More importantly, the text of whatever law Congress passes may be very different from the Executive Branch’s and the FISA court’s interpretation of that law—just as was the case with section 215 of the original PATRIOT Act. Representative Jim Sensenbrenner wrote last August that before Edward Snowden’s leaks, “I did not know the administration was using the Patriot Act for bulk collection, and neither did a majority of my colleagues.” That is why the transparency provisions of the original USA FREEDOM Act need to be restored, to verify that the NSA actually ends bulk collection instead of finding new loopholes to exploit.

UPDATE: A revised version of the manager's amendment now defines "selection term" as "a term used to uniquely describe a person, entity, or account," and fixes a drafting problem that inadvertantly seemed to authorize collection three hops rather than two hops from the original selector. The transparency provisions have not been restored, however.

 

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