White House Praises NSA Reform Bill, Privacy Activists Still Have Concerns

It's called the USA Freedom Act, so it has to be great...right?

Yesterday the House Judiciary Committee unanimously voted to advance an amended version of the USA Freedom Act that would prohibit the National Security Agency (NSA) from using Section 215 of the PATRIOT Act in order to conduct the wholesale collection of telephone metadata. The bill would also require phone companies to retain metadata. The House Intelligence Committee is planning to consider its own intelligence legislation, the FISA Transparency and Modernization Act. As The Washington Post explains, a key difference between the two pieces of legislation is that the Judiciary Committee bill requires a "judge to approve records requests for each phone number before the NSA obtains them."

Rep. James Sensenbrenner (R-Wis.), the primary sponsor of the bill and author of the PATRIOT Act, urged other members of the Judiciary Committee to back the 35-pages of changes to the USA Freedom Act that were unveiled on Monday.

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Over at the Electronic Frontier Foundation Kurt Opsahl praised the Judiciary Committee advancing the USA Freedom Act, but mentions some concerns:

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, adopting a modified version of 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.

At Techdirt, Mike Masnick wrote that a "generally good amendment" was not "as strong as it should be" and that the latest version of the USA Freedom Act removed an attempt to close a loophole that allowed warrantless backdoor searches on Americans:

As expected, the USA Freedom Act has been passed out of the House Judiciary Committeetoday, moving the bill forward in a process that will likely bring some version of it to the House floor in the next few weeks. The markup include a variety of amendments, some dopier than others. One generally good amendment was added, bringing back the transparency provisions for tech companies to reveal some information about government requests they receive. Unfortunately, this wasn't as strong as it should be, keeping very wide "bands" under which the tech companies have to obfuscate how many requests they actually receive and how many users are impacted. There was some push to tighten the bands, and that is likely to continue, but it's unlikely to change. Late yesterday, the manager's amendment also added an important definition for "specific selection term" -- which if left totally undefined would easily lead to abuse. The definition is… not great. It can still be abused, but not as readily as when there was no definition.

The other major problem is that this new version strips out the attempt to close the loophole that allowed backdoor searches on Americans without a warrant. This is a big deal as the original version would have closed that loophole. The NSA apparently lobbied hard to remove it, and when Rep. Zoe Lofgren tried to amend this new version to bring back the ban, it was rejected quickly. In other words, the NSA (who has pretended this is no big deal) likely uses this "loophole" quite a bit and doesn't want to lose it.

The White House praised the advancement of the legislation:

President Obama called for the legislation in a speech earlier the year, given amid mounting concern over the surveillance programs revealed in leaks by former NSA contractor Edward Snowden.

"In March the President laid out his proposal to reform Section 215, and called upon Congress to act quickly to pass implementing legislation. We applaud the House Judiciary Committee for approaching this issue on a bipartisan basis," National Security Council spokesperson Caitlin Hayden said in a statement. "The Judiciary Committee passed bill is a very good first step in that important effort, and we look forward to House Permanent Select Committee on Intelligence action on it tomorrow."

Read more from Reason on the NSA here.