EFF Withdraws Support For USA Freedom Act After Last Week's Court Ruling
from the changing-the-legal-landscape dept
There has been some concern all along that the new USA Freedom Act, isn’t necessarily a good deal — but for the most part folks in the civil liberties world tended to agree with the general view well presented by Access, that the USA Freedom Act is “better than nothing, but less than we deserve.” That is, it is reform in the right direction, if very limited. Yes, there were some who disagreed, leading to a bit of a split among individuals and groups who are normally together on issues like this. Last week’s big ruling about NSA surveillance under Section 215 throws a wrench in just about everything, however.
It was a huge win, but it immediately raised a bunch of questions. Currently on the table (and requiring some sort of vote before June 1st — or Section 215 disappears…) are two main proposals. The USA Freedom Act, which renews Section 215, but somewhat limits the ability of the NSA to use that authority for bulk collection, and Mitch McConnell’s bill that just re-authorizes Section 215 straight up, through 2020. Before the ruling last week, McConnell’s plan seemed absolutely ridiculous. But revisit it under last week’s ruling. One could make the argument that if Congress just took up McConnell on his offer, and renewed 215… it would still lead to the end of the bulk data collection, because the Second Circuit has now said that Section 215 doesn’t authorize such a program. This, of course, would be subject to an appeal and a big fight and an eventual Supreme Court decision, so there’s some risk involved and it might not end up where things are now. But, suddenly, one could argue that McConnell’s bill actually would cut off the program that people are so focused on killing off (leaving aside the other surveillance programs).
And, given that fact, the USA Freedom Act seems like even less of a good deal, because it actually lays out more specifically ways in which the NSA can collect data, if probably not quite everyone’s data. So, under that ruling again, it’s arguable that the current USA Freedom Act would lead to greater NSA surveillance than even renewing Section 215! That’s kind of mixed up and crazy.
Either way, this shakeup has made people realize that USA Freedom may no longer be the best option on the table. There’s a new ground floor to deal with here — and that means that folks like the EFF, who grudgingly supported USA Freedom as an interim step, have now pulled their support, arguing that USA Freedom needs much more in it to make it worthwhile again:
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.
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.
As the EFF statement notes:
This is also an opportunity and a new context for Congress to address the shortcomings of the newly introduced USA Freedom Act that we previously wrote about. Congress should put back key provisions that were dropped along the way as well as remove those that were introduced at the behest of the intelligence community.
First, the “super minimization” procedures, which were key privacy procedures that mandated the deletion of any information obtained about a person not connected to the investigation, should be reintroduced. Key provisions establishing a higher legal standard and compliance assessment for the use of pen register/trap-and-trace devices, legal standing to sue the government over surveillance practices, and the original transparency provisions allowing government and corporate disclosure of surveillance orders should also be resuscitated.
Second, provisions introduced by the intelligence community that must be deleted include an increase in the maximum sentence for material support to terrorism to 20 years. Another change was the introduction of a clause allowing the intelligence community to obtain an emergency exception to spy within the United States on a ?non-United States person? for 72 hours?without any court order. These were added as ?sweeteners? without any public showing that they are necessary.
The next few weeks are going to be rather interesting. At the very least, last week’s ruling threw a bit of a wrench into the way most people expected this fight to play out.
The Second Circuit decision has changed the playing field. Members like Senators Leahy and Mike Lee and Representatives Jim Sensenbrenner, Robert Goodlatte, and John Conyers should be applauded for working incredibly hard to get the USA Freedom Act through Congress. Yet as a result of the Second Circuit decision, the USA Freedom Act’s modest changes appear even smaller compared to the now judicially recognized problems with the mass collection of Americans? records. We’ve supported the USA Freedom Act through all three iterations, more reluctantly each time, but with this new court opinion we?ve decided that Congress can significantly strengthen the bill if we are to support it.
The Second Circuit aptly compared the current debate to the troubled times of the 1970s. Two years ago Senator Leahy mentioned that his first vote in the Senate was for the Senate resolution that created the Church Committee. The Church Committee investigated the intelligence community for three years and ushered in the Foreign Intelligence Surveillance Act in 1978?one of the most robust surveillance reform bills ever. In that same speech, Senator Leahy vowed to “recalibrate” a failing surveillance system via the USA Freedom Act.
We urge Senator Leahy and others to draw upon the vigor of that first vote to push for a stronger reform bill. The Second Circuit?s decision mandates we not settle for less and that we strengthen the USA Freedom Act so it better protects our rights and freedoms.