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.


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  • icon
    Ninja (profile), 12 May 2015 @ 9:07am

    While I did not agree with EFF supporting the Freedom Act (I cringe when I read freedom in an act that's everything but) it was reasonable to support it to take baby steps forward but with this blasting ruling said bill would actually allow surveillance where the court said there should be none.

    Now they'll have to make the bill stand up to its name for it to be worth again. And EFF will have a hard battle ahead as the Govt will most likely do everything it can to shot down that ruling. Can't bring in core Constitutional questions, can we?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2015 @ 11:09am

    Let your congresscritter know...

    I'm happy that my representative regularly sends out polls asking about controversial upcoming bills... when I received the poll about the "usa freedom act", I let him know I do not wish to have section 215 renewed AT ALL.

    It is important that our elected officials know how we feel - even if they intend to ignore their constituents, at least they'll do so knowing they're pissing people off.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2015 @ 11:27am

    Smoke and Mirrors

    I remember when everyone was lambasting Ted Cruz for not supporting the Net Neutrality bill.

    Let me ask this.

    Ted is a politician, so is Obama. How can you take your own self so seriously when Obama does nothing about this, pushes the TPP with those shitty repukes, and then gets a bunch of you ninnies to gush when he says he supports net neutrality while several bitch talk someone else saying it won't work out like you think it will?

    The reactions here are enough to spell out the fact that we are doomed.

    Additionally since the EFF and many here supported this act well... guess what... tells me that the same idiots with blinders on in this forum are the same type of idiots running around out there picking and choosing which bills or retarded politicians to support.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 12 May 2015 @ 11:29am

      Re: Smoke and Mirrors

      It's called positive reinforcement - it usually works on children. Politicians may not be quite as receptive to it, unfortunately.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 May 2015 @ 11:42am

        Re: Re: Smoke and Mirrors

        Yes, its good for everything BUT politics and here is why.

        Everything you use positive reinforcement to say we really like this, you are additionally saying, that there was nothing wrong "legally" with how they did it in the past.

        Here is a good example. The patriot act, essentially written to remove a citizens right by nothing more than being accuses to terrorism. Meanwhile the government was pushing that this was only for non-citizens and that it could not affect citizens except in the most dire of situations.

        Well, if its not for citizens, then why did they need this anyways? They can already do whatever the hell they want with terrorists as it is... this only did two things... confer illusory rights on non-citizens and remove rights from actual citizens, and everyone bought like cheap hookers.

        Supporting this bill in the first place was like saying that the illegal collection was okay but now we want to reign it in.

        We need to stop this garbage and start going for the careers of these politicians doing nothing but running their flapping mouths without any real sense of danger of punishment. Boehner, Reid, and Pelosi are the very example of corrupt and evil politicians yet they are still there being voted in. I will never feel sorry for anyone in the states that voted these scum into power.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 12 May 2015 @ 11:57am

          Re: Re: Re: Smoke and Mirrors

          Sorry for the terrible spelling. I was in a rush.

          I should have added Feinstein to the shit list as she is another evil politician.

          reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 12 May 2015 @ 1:41pm

      Re: Smoke and Mirrors

      I remember when everyone was lambasting Ted Cruz for not supporting the Net Neutrality bill.
      Ted Cruz wasn't in this article, so I am not so sure why you bring him up here, both leading with a mention of him and giving that mention its own paragraph.
      Let me ask this.

      Ted is a politician, so is Obama. How can you take your own self so seriously when Obama does nothing about this, pushes the TPP with those shitty repukes, and then gets a bunch of you ninnies to gush when he says he supports net neutrality while several bitch talk someone else saying it won't work out like you think it will?
      So what you are saying is that one bad political stance means every single political stance they ever make is tainted? We can't support a positive political message while still arguing against the bad ones? Not sure how that is supposed to improve the political process.

      Additionally since the EFF and many here supported this act well... guess what... tells me that the same idiots with blinders on in this forum are the same type of idiots running around out there picking and choosing which bills or retarded politicians to support.
      Most notably the people writing the articles were generally not liking the Act, and were supporting it as a stopgap measure. However, the realities from which the EFF established its stance of support changed. And that caused a change in policy as well. The downsides of the USAFA were generally known (they were discussed which wouldn't happen if we all had 'blinders'), but it was thought the benefits outweighed the problems. The recent ruling from a top court, which both argued that the law did not support the metadata program and that it makes a mockery of the 4th amendment (it didn't rule on constitutional grounds, but laid the groundwork for that ruling if it were to be needed), changed that cost/benefit analysis.

      You also, in your later post, most made several incorrect statements about the nature of the collection and the laws that apply.

      Here is a good example. The patriot act, essentially written to remove a citizens right by nothing more than being accuses to terrorism. Meanwhile the government was pushing that this was only for non-citizens and that it could not affect citizens except in the most dire of situations.

      Well, if its not for citizens, then why did they need this anyways? They can already do whatever the hell they want with terrorists as it is... this only did two things... confer illusory rights on non-citizens and remove rights from actual citizens, and everyone bought like cheap hookers.
      Well the Patriot act did a lot of things to try to mitigate terrorism. And many of them dealt with Citizens directly, such as all the additional scrutiny of banks. So to say they claimed it was all about non-citizens is a lie. The claims of the Metadata program only being used against non-citizens only came recently. You also claim they can "do whatever the hell they want with terrorists as it is", which isn't even true of non-citizens, let alone citizen terrorists. Visitors here legally are generally conferred the protections of the Bill of Rights. And not everyone bought it, this site and its followers have long been an opponent of the power expansion of the Patriot Act.

      Supporting this bill in the first place was like saying that the illegal collection was okay but now we want to reign it in.
      I've never seen it that way, and it has never been argued that way politically, so I am unsure how you came to this conclusion.

      Everything you use positive reinforcement to say we really like this, you are additionally saying, that there was nothing wrong "legally" with how they did it in the past.
      So, for instance, if I say "Good job plugging the loophole in the X bill that would allow some renegade scientists to legally engineer and release a virus to kill off [racial group X]", what I am really saying is "I totally support every single vote you have ever made, you have a spotless record?" That seems like a strange leap of logic.

      We need to stop this garbage and start going for the careers of these politicians doing nothing but running their flapping mouths without any real sense of danger of punishment. Boehner, Reid, and Pelosi are the very example of corrupt and evil politicians yet they are still there being voted in. I will never feel sorry for anyone in the states that voted these scum into power.
      And by what mechanism would you suggest? Perhaps a website that highlights their failures in policy so that others can see their failures and not vote for them in the next election? We could even focus it so as to appeal to specific audiences. I suggest we start with one that highlights the intersection of technology and constitutional protections. Oh wait.....

      And given you don't even necessarily need a majority vote to be elected into office, and gerrymandering of congressional districts, and political polarization, and party lock-in preventing multiple representatives from the same party, a state can end up with a representative that is not a representative of the majority view of the state, and quite possibly representative only of how much they hate the guy on the other side. So not having any sympathy for any Californian because some of them voted for Feinstein seems to highlight the same kind of political polarization which leads to the political gridlock in the first place.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2015 @ 12:06pm

    If it was a step in the right direction before it's still a step in the right direction. The ruling will likely be appealed and who knows what which court decides is legal in the future.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 12 May 2015 @ 1:22pm

      Re:

      Not necessarily. While the ruling will be appealed, should it win the appeal then this act is not a step forward at all. The best thing to do is to scuttle it right now: if the USA "Freedom" Act passes, then that's what we'll be stuck with. There will be no second bite at that apple.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2015 @ 2:45pm

    I made the point several times while the NSA apologizers and apologizer-in-chief were saying that the NSA was operating legally and lawfully that those supposed laws had not been tested in court. Until they were, they were not legal.

    It has been the policy of this administration to stonewall in every manner possible any revealing of troublesome claimed legal processes from getting it's day in court. You want to know which processes border on illegality or are plainly illegal, look to which ones they fight all FOIA requests on. Oh, wait, that's nearly all of them. What does that tell you? It tells you the government and it's branches know where the sore points are but are determined to do them anyway.

    Obama and crew have used the US government as the hammer for anything they don't like while cutting deals that would not stand the light of day. In fact, Dan Bongino claimed that while he was a Secret Service agent he heard such often but can't reveal them due to NDA.

    This has been one crooked administration. I'll be glad to see this one end. Not that I have hopes of a better replacement but this one has been worse than George Bush's and I thought that one was the bottom of the barrel until after Obama got started.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2015 @ 9:31pm

    The USA Freedom Act started out with strong Constitutional protections, but now it's just a pile of turd. I stopped caring about the USA Freedom Act long ago after it got watered down by Congress.

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 13 May 2015 @ 8:56am

    Or here is a radical idea.

    Why not just arrest and impeach those government officials that have been caught violating the laws instead of prettying up the laws after the fact to justify their illegal actions.

    reply to this | link to this | view in chronology ]


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