UPDATE—Thursday, May 7: The day after we posted this article, the US Court of Appeals for the Second Circuit in New York declared the NSA’s domestic phone metadata program illegal, on the ground that the USA Patriot Act provision on which the NSA program had rested did not in fact authorize bulk collection of every American’s phone records. In other words, the NSA’s domestic phone-records program was illegal from the outset, and never should have been created. The court’s unanimous and well-reasoned decision, noting the profound privacy interests we all have in our phone records, and the unprecedented scope of the NSA program, should inform the upcoming legislative debate on the USA Freedom Act. It underscores the crying need for NSA reform. But as the article below argues, passing the USA Freedom Act will only be a first step on that path.
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On April 30, the House Judiciary Committee approved the USA Freedom Act, a bill to rein in dragnet surveillance by the National Security Agency (NSA), by a lopsided 25-2 vote. A front-page New York Times story heralded the bill’s approval as “the strongest demonstration yet of a decade-long shift from a singular focus on national security at the expense of civil liberties to a new balance in the post-Snowden era.”
If enacted, the USA Freedom Act will mark the first time since 9/11 that Congress has reined in any national security surveillance program. But to call it the sign of a fundamental shift is wishful thinking. The real reason the bill has such support, including from the White House and reportedly the NSA itself, is that if Congress does nothing, even more radical change would transpire: Section 215 of the USA Patriot Act, on which the NSA domestic phone data program rests, will expire on June 1 unless Congress acts. In truth, the USA Freedom Act addresses only a small fraction of the NSA’s dragnet surveillance operation, and will leave most of the problematic programs Edward Snowden disclosed untouched.
The USA Freedom Act, which has been endorsed by Silicon Valley corporations, human rights groups, privacy defenders like Senators Ron Wyden and Pat Leahy and Representative John Conyers, as well as staunch conservatives such as Representative James Sensenbrenner and Senator Mike Lee, has much to commend it. It would end the NSA’s “bulk collection” of virtually every American’s phone records, and instead authorize the NSA to access phone data and other personal records only when a court finds that there is reasonable suspicion that records relate to specific names, accounts, or addresses linked to international terrorism. It would impose reporting requirements on the agencies using such authorities, and permit companies served with official demands for their customers’ records to report publicly, in limited fashion, on the volume of such requests. And it would improve proceedings before the Foreign Intelligence Surveillance Court, the judicial body that reviews intelligence surveillance requests. That court currently operates entirely in the dark, where it hears only from the government. The new law would mandate the appointment of a panel of special lawyers who would be directed to defend privacy and civil rights with respect to any surveillance request that “presents a novel or significant interpretation of the law,” and require publication of declassified summaries of the court’s opinions where feasible.