The USA Freedom Act, although it has represented Congress's best efforts at reform, has never been a complete solution to secretive mass surveillance. The government transparency provisions of USA Freedom 2015 fall far short of what is needed, but the bill would still provide Americans with more information about the scale of surveillance, and more information about how the Foreign Intelligence Surveillance Court interprets the law, than they have now. It steps back, however, from important reforms that are essential to strengthening civil liberties protections and advancing government transparency on these critical topics. For those reasons, we believe this version of the USA Freedom Act is a beginning, not an ending, to the necessary transparency reforms. OpenTheGovernment.org welcomes the first steps this bill takes and will continue to urge policymakers to restore transparency reforms that will allow the public to hold government accountable for the policies permitted and ratified in this bill.
The original version of the USA Freedom Act introduced in 2013, while containing crucial reforms to surveillance under section 215 of the PATRIOT Act, section 702 of the FISA Amendments Act, and the Foreign Intelligence Surveillance Court (FISC), did not reform or force disclosure about the scope of mass surveillance conducted under Executive Order 12333.
The Senate compromise version of USA Freedom introduced in 2014, which narrowly failed to advance last year, ended nationwide collection of telephone metadata. But it omitted reforms to section 702, and authorized collection of innocent Americans’ phone records under section 215 if they were “two hops” from a terrorism suspect. OpenTheGovernment.org nevertheless supported the 2014 Senate bill (unlike the House version) because it contained important advances for transparency. The government currently reports only the number of surveillance orders and surveillance targets, which can understate the scope of collection by orders of magnitude. Last year’s Senate bill required the government to disclose the number of people whose communications were collected under the major surveillance authorities, and the number of Americans whose communications collected under section 214 and 215 of the PATRIOT Act. The bill also required the government to disclose or summarize significant FISC opinions. Weighing all these factors, OpenTheGovernment.org supported the Senate bill as “a true compromise and a crucial step in the right direction.”
The 2015 bill contains noticeably weaker government reporting requirements than the 2014 Senate compromise. It omits the requirements that the government report on the number of individuals whose communications were collected under section 702, and the number of Americans whose communications were collected under section 214 and 215 of the PATRIOT Act. These changes were reportedly made late in the negotiations, at the insistence of House Permanent Select Intelligence Committee. No public justification or explanation has been provided for the deletion of transparency provisions that the intelligence community has acknowledged it could fulfill without any danger to national security. The rationale seems to be secrecy for its own sake. The reporting requirements that the Obama administration agreed to last year should be restored.
This bill does require the Executive Branch to release more details about surveillance programs than it currently does. Its FISC and government reporting provisions will be helpful in verifying the government’s compliance with the bill’s ban on nationwide collection of call detail records. While far short of the wholesale reform needed and less effective than letting section 215 expire, it is certainly far preferable to Senator Mitch McConnell’s indefensible proposal to extend bulk collection with no reform whatsoever. We thank the sponsors of this legislation for their tireless efforts to ensure meaningful reform, and hope to work with them to restore the transparency provisions that were deleted without explanation.