Privacy Advocates Split on Whether To Support USA Freedom Act
With Section 215 of the Patriot Act to sunset June 1, some privacy advocates and tech organizations backed changes in surveillance authorities granted to the intelligence community encouraging the passage of the USA Freedom Act, during a congressional Internet Caucus event Friday. Some like the American Civil Liberties Union don’t think the USA Freedom Act includes strong enough protections and would prefer if Section 215 were to sunset. None of the panelists at Friday’s event supported the legislation (S-1035) introduced by Sen. Mitch McConnell, R-Ky., which reauthorizes Section 215 in its current form for five years.
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The House Judiciary Committee voted 25-2 Thursday to forward to the floor the House version of the USA Freedom Act (see 1504300042). The bill would prohibit the bulk collection of any business records under Section 215 and the Foreign Intelligence Surveillance Act (FISA) pen register/trap and trace device authority, or national security letters, said House Judiciary Chairman Bob Goodlatte, R-Va., during Thursday’s markup. The USA Freedom Act “creates a narrower, targeted program” for the intelligence community to collect metadata so long as it has the prior approval of the FISA court, Goodlatte said, and includes additional privacy and transparency protections that weren't included in the legislation's 2014 version.
USA Freedom is a “major privacy victory,” said Center for Democracy & Technology (CDT) Senior Policy Director Chris Calabrese Friday. “It’s not a comprehensive package” but is an important first step in “allowing more surveillance reform in the future,” he said. ACLU Legislative Counsel Neema Singh Guliani said the ACLU doesn’t support the bill because it “isn’t the solution the public has demanded.” The bill “doesn’t go far enough,” and contains “many ambiguities” that leave the door open to expansive collection of information, Guliani said. The ACLU doesn’t oppose USA Freedom but prefers the expiration of Section 215, she said.
“The administration worked very closely with members of Congress to come up with this bill,” and “agrees bulk collection should end,” said General Counsel for the Office of the Director of National Intelligence Robert Litt. If legislation isn't passed, and Section 215 sunsets, other authorities granted to the intelligence community will be lost, Litt said. If Section 215 expires, the intelligence community will be granted pre-9/11 authority, Calabrese said. This isn’t an all-or-nothing environment, he said. There’s legal ambiguity whether bulk collection could continue if Section 215 sunsets, said Jessica Herrera-Flanigan, a lobbyist for Reform Government Surveillance, a coalition of tech companies.
The intelligence community won’t have access to certain records if Section 215 expires, Litt said. He declined to specifically name records to which the intelligence community would lose access, citing classified information, and asked why terrorists should have more protection than criminals.
CDT is concerned about the meaning of the word “relevance” in the USA Freedom bill, because there's a “wide variety of standards,” Calabrese said. Another concern for CDT is about super minimization. “If I collect information on innocent people, I should have to discard that information,” Calabrese said. The transparency provisions in the USA Freedom Act are an improvement over the status quo, but loopholes could be exploited, Guliani said. CDT believes a sunset has real benefits to privacy, Calabrese said, but USA Freedom is the most straightforward path to surveillance overhaul, he said.
Congress doesn’t have a black-and-white approach, Herrera-Flanigan said. Some want a clean reauthorization, others a sunset, she said. When you pit national security interests against privacy interests, national security interests win, she said.
President Barack Obama made clear he wanted to end bulk collection and “assuming no Easter eggs are hidden in the bill that cause problems for us,” the intelligence community supports the bill, Litt said. Legislation is needed to allow the intelligence community to “do what we need to do,” Litt said when asked why Obama couldn’t issue an executive order to end the bulk collection program. Litt didn’t say which authorities would be granted only by legislation and said a single intelligence program has never foiled a terrorist plot, but Section 215 generated useful information in the past year.
Inevitably the Fourth Amendment doctrine will be looked at in light of technological changes, Litt said. For the Fourth Amendment to mean something in the 21st century, sharing information with third parties can’t mean an individual has no Fourth Amendment protections, Calabrese said.
Given the May 22-31 congressional Memorial Day recess, the unofficial deadline for Section 215 is May 21. The House is in recess Memorial Day week, but the USA Freedom Act is expected to be brought to the House floor when Congress returns the week of June 1.