The initially promising USA Freedom Act could have ended the previously secret government practices of collecting Americans' calling records, internet transactional information and who knows what else in bulk. Today's version would allow broad collection to continue under the guise of reform.
The initial version of the bill would have reinforced existing statutory language requiring a showing of "relevance to an authorized investigation" before agents can get an order requiring production of business records, dialing and routing information, and other data, and would have added other limits to ensure massive collection would stop. It also would have implemented mild reforms to content surveillance under section 702 of the FISA Amendments Act, stopping "back door" searches for Americans' communications.
Last week, a Managers' Amendment watered those provisions down, substituting new language that would allow agents to use a "specific selection term" as the "basis for production". The bill defined "specific selection term" as something that "uniquely describe[s] a person, entity, or account."
Given the intelligence community's success at getting FISA judges to reinterpret obvious language—e.g. "relevance"—in counter-intuitive ways, people wondered what this new language might mean. There's deep public mistrust for the intelligence community and for the FISA court, which conspired to allow bulk collection under spurious legal justifications for years. Worse, there's deep public mistrust for the law itself, since the intelligence community's "nuanced" definitions of normal words have made the public realize that they do not understand the meaning of words like "relevance", "collection", "bulk", or "target".
Additionally, in December of 2013, Deputy Attorney General James Cole testified before the Senate Judiciary Committee that the NSA might continue its bulk collection of nearly all domestic phone call records, even if the original USA FREEDOM ACT passed into law. As I wrote at the time, this testimony shows that the Administration and the intelligence community believe they can do whatever they want, regardless of the laws Congress passes, so long they can convince one of the judges appointed to the secretive Foreign Intelligence Surveillance Court (FISC) to agree. All they need is some legal hook they can present with a straight face.
In the face of this uncertainty, the civil liberties consensus on the Managers' Amendment was that it might end bulk collection of everything, but it wouldn't end "bulky" collection of information relating to millions of innocent people so long as agents were asking for some subset of everything based on some selector.
Yesterday, a new version of the bill was released after, according to the National Journal, "more than a week of intense backdoor negotiations among House leadership, the White House, and the intelligence community." The latest version gets rid of the "uniquely describe" language. Rather "specific selection term" would be defined as:
A discrete term, such as a term specifically identifying a person, entity, account, address, or device, used by the Government to limit the scope of the information or tangible things sought pursuant to the statute authorizing the provision of such information or tangible things to the Government.
This definitional change moved the needle from might to probably won't end bulk collection under Section 215 of the Patriot Act, the NSL statutes, and the intelligence pen/trap statute, as USA Freedom was proposed to do.
The new version also codifies a fishy interpretation of law that enables NSA collection of communications "about" a target under section 702 of the FISA Amendments Act. These "abouts", as the intelligence community calls them, entail surveillance when Americans talk with friends overseas about matters of foreign intelligence interest. Since the definition of foreign intelligence information is quite broad, and includes information related to (A) the national defense or the security of the United States; as well as (B) the conduct of the foreign affairs of the United States, this kind of collection can be quite invasive. Technologically, it also means collection of purely domestic "about" communications. This is something that needs to end, not receive Congress' blessing.
As a result, NGOs have started to withdraw their support for the bill.
Reformers are still reluctant to openly oppose USA Freedom. That's partially because of the specter of the House Intelligence Committee bill, the FISA Transparency and Modernization Act, which would expand surveillance under the mantle of reform. Privacy groups seem whipsawed between the pale appearance of surveillance reform that is USA Freedom and the actual surveillance expansion that is the Intel bill.
Its also partially due to assurances from Senator Patrick Leahy (D-Vt) and others that the Senate will work to improve the current version of USA Freedom to give the definition of "specific selection term" real meaning and to include amendments to limit dragnet collection provisions under section 702 of the FISA Amendments Act.
Reformers have the summer to put the pressure on, especially in light of the fact that section 215, one of the provisions used for bulk collection, including of Americans' calling records, will sunset in 2015.
Meanwhile, it's worth asking why legislative surveillance reform has so far failed, despite huge support in Congress and in the public for ending bulk collection. What does this say about our political system, and about the influence of intelligence agency lobbying despite public sentiment in favor of more restraint?