Posted by: Timothy Jones
May 15, 2015
With critical provisions of the Patriot Act scheduled to expire in June congress is rushing to come up with a solution. They may have just found it. The US House of Representatives approved the USA Freedom Act with a strong 338 to 88 vote.
The bill is a step toward ending the mass collection of data by the National Security Administration, but many privacy advocates believe there is still much to be desired.
The USA Freedom Act would prohibit using Section 215 to authorize the NSA’s bulk data collection program, as well as FISA’s pen/trap statute and national security letters. What that means is that if the bill passes, the NSA won’t be able to scoop up data en masse from telecom companies like it did before; instead, it would be required to request data using keywords. The act also declassifies big FISA court opinions.
The bill has put some privacy advocates at odds with each other. Some believe any step toward decreasing the powers assigned to the NSA is a step in the right direction, but many feel the bill doesn’t go far enough. Perhaps the most notable critic has been The Electronic Frontier Foundation. The EFF, which supported the bill at one point, withdrew its support after a 2nd circuit court ruled certain NSA practices illegal.
The EFF wants a clear definition of terms the NSA has operated under in the bill. In a filed amicus brief, the EFF urged congress to improve the Freedom Act:
“In light of the Second Circuit’s decision, EFF asks Congress to strengthen its proposed reform of Section 215, the USA Freedom Act. Pending those improvements, EFF is withdrawing our support of the bill. We’re urging Congress to roll the draft back to the stronger and meaningful reforms included in the 2013 version of USA Freedom and affirmatively embrace the Second Circuit’s opinion on the limits of Section 215.”
As Wired pointed out, “[the] EFF says lawmakers need to include language that provides a strict interpretation of key terms in the statute such as “relevant” and “investigation,” to prevent the NSA from using loose interpretations to keep collecting massive amounts of data.”
Here is the stance of the EFF;
Most importantly, the Second Circuit’s correct interpretation of the law should be expressly embraced by Congress in order to avoid any confusion going forward about what the key terms in the statute mean, especially the terms “relevant” and “investigation.” This recognition could be in the bill itself or, less preferably, in legislative history. The House Judiciary Committee has already included such language in its report to the full House of Representatives, but now the Senate must include the language in the bill or in its own legislative history. This easy task will make sure that the law is not read as rejecting the Second Circuit’s reading and will help ensure that the USA Freedom Act actually accomplishes its goal of ending bulk collection.
The American Civil Liberties Union is hoping the senate will further strip away some of the NSA’s power in the bill. Michael Macleod-Ball, acting director of the ACLU’s Washington Legislative Office, issued the following comment in a press release:
“Last week’s historic court decision makes clear that this bill must be strengthened to protect privacy rights. Following the court’s ruling, the House should have amended the bill to prevent the government from amassing and keeping the information of innocent Americans. The Senate should not make the same mistake and instead remedy the bill’s many deficiencies, which have been criticized on both sides of the aisle.”
Ted Cruz, Republican presidential candidate, and co-author of the bill, has already begun urging the Senate to pass Freedom Act.
— Ted Cruz (@tedcruz) May 14, 2015
Rand Paul, another Republican Senator and presidential candidate, has a completely different approach. Paul has already threatened a filibuster to re authorizations of the Patriot Act.
“I’m going to lead the charge in the next couple of weeks as the Patriot Act comes forward,” the GOP presidential candidate told the New Hampshire Union Leader. “We will be filibustering. We will be trying to stop it. We are not going to let them run over us. And we are going to demand amendments and we are going to make sure the American people know that some of us at least are opposed to unlawful searches.”
Now the USA Freedom Act heads to the Senate. With the June deadline right around the corner, we should be seeing action on it immediately.