With a 67-32 vote in the Senate this afternoon, Congress finally passed the USA Freedom Act, a surveillance bill being hailed on the Hill as the biggest effort to rein in the intelligence community since the Sept. 11, 2001 attacks.
“This is historic — the first major overhaul of government surveillance laws in decades,” said Sen. Patrick Leahy, D-Vt., who championed the legislation.
The Senate adopted the House version of the bill, which had been watered down at the behest of intelligence agencies, and President Obama signed the Freedom Act into law later this evening.
While far from what most would recognize as “reform,” at the end of the day, the bill is probably more of a victory for transparency than it is for privacy.
That's because the Freedom Act has focused almost exclusively on ending one single National Security Agency program under one single authority: The secret bulk collection of Americans' phone records under Section 215 of the Patriot Act, revealed almost exactly two years ago by Edward Snowden.
Section 215 and two other “emergency” post-9/11 surveillance provisions briefly lapsed Sunday night after the Senate failed to reauthorize them. The new law replaces the NSA’s bulk data collection with a program that requires telecom companies to retain the data and grant access to intelligence agencies through more targeted court orders.
The other surveillance powers — roving wiretaps and the so-called lone wolf provision — remained unused even as surveillance hawks raised apocalyptic warnings about letting them expire.
Two independent White House panels have found that the metadata collection program has never helped to foil a terrorist plot. A major appellate court decision also ruled the program was illegal, and that it merely served to create a “vast data bank” of extremely sensitive information — specifically, phone numbers and when and how often they were called — about millions of innocent Americans.
In other words, the bulk phone records program was on its way out no matter what.
The court ruling could have been a big opportunity to push for an end to all domestic bulk collection under the Patriot Act, not just phone records. But additional privacy protections had been negotiated away in the House, and Senate advocates were not given a chance to add them back. The result renders the Freedom Act a missed opportunity to address countless other NSA authorities, such as Executive Order 12333 and Section 702 of the FISA Amendments Act, ones we know (again, thanks to Snowden) continue to collect many other types of data.
In fact, the bill was so laser-focused on phone records that it failed to address the other forms of mass data collection that previously took place under Section 215. Of the 180 court orders issued by the secret FISA surveillance court last year, only 5 related to the phone records program. What did the court authorize under the other 175? Were they targeted surveillance orders or more give-us-everything-all-the time-mandates similar to the phone records dragnet?
Here's the good news: The Freedom Act did include some transparency and oversight measures that could, in theory, stop the NSA and the FISA court from expanding spy laws in secret. Among the new safeguards, the act includes the creation of a special civil liberties advocate to challenge intelligence agency requests made in the secret court (previously, the court only heard the government's side), and a measure requiring the court make public any significant reinterpretation of the law. The latter is especially important. Not knowing that the government broadened the law in secret is what lead to massive government data trawl in the first place: under Section 215, the government argued that all Americans' phone records were “relevant” to an ongoing terrorism investigation.
The transparency measures survived, despite a series of amendments proposed by Republican Majority Leader Mitch McConnell, R-Ky., which would have removed the oversight provisions and weakened the bill even further. All of McConnell’s amendments failed, making transparency arguably the most hopeful part of the legislation.
But while the act created much-needed transparency, it barely scratched the surface of the NSA's domestic mass surveillance programs. While the government will no longer be able to collect phone records in bulk the way it had under Section 215, it can still easily gain access to that and other kinds of data without a warrant several other ways — from National Security Letters to the “incidental” collection that occurs under Section 702 of the FISA Amendments Act.
The latter involves “Upstream” collection, the indiscriminate data sweeps of undersea telecommunications cables that inevitably catch American data in their nets. The NSA is instructed to remove or “minimize” this data, but it can nevertheless be kept and handed to law enforcement agencies to prosecute crimes under a wide variety of circumstances — all without a warrant. The agency can also still perform “backdoor searches” to get data about American citizens by exploiting a loophole in the Foreign Intelligence Surveillance Act, something civil liberties advocates have been warning about for years.
So, perhaps it was not that surprising that civil liberties groups like the ACLU and the Electronic Frontier Foundation remained openly neutral during the recent Freedom Act debate. And many experts have also rightly questioned the wisdom of focusing on phone records when so much of our communications now take place over email, Skype calls and smartphone messaging apps — all of which the NSA is still monitoring.
Even people within the NSA have been candidly celebrating the Freedom Act's surveillance “reforms,” calling it “a nothingburger for the privacy community.” And they might be right — with so many overlapping and redundant surveillance authorities, it'd be foolish to think the Freedom Act has ended bulk collection in any significant capacity.
That doesn't mean there's no reason to celebrate the first step, but Congress will have to hit the ground running if it wants to build on the Freedom Act's momentum.
In the House, Reps. Thomas Massie, R-Ky., and Zoe Lofgren, D-Ca., are already proposing an amendment to an upcoming “must-pass” Department of Justice appropriations bill that would stop the agency from compromising encryption standards, a measure that was removed from the original Freedom Act. (In September of 2013, Snowden revealed that the NSA and its British counterpart GCHQ routinely inject vulnerabilities into commonly used encryption software and influence the development of crypto standards from within the scientific community.)
A separate amendment to the same bill, by Lofgren and Republican Ted Poe of Texas, would also block the FBI from demanding these encryption backdoors. And another from Colorado Democrat Jared Polis would block the Drug Enforcement Administration from collecting bulk phone records — a response to recent reports that the agency for decades ran a domestic phone records database that preceded the NSA's.
Barring all that, the next major opportunity to challenge NSA surveillance won't be until 2017, when Section 702 of the Foreign Intelligence Surveillance Act is due to expire. But now that more transparency is in place, Congress has a chance to make up for the Freedom Act's shortcomings by putting the wheels in motion for real, comprehensive reform.