President Barack Obama has said that he wanted to reform how the NSA collects and stores metadata. What he says and what he does, again, are two different things.
The “Consult with Congress” Stage of USA Freedumb
By Marcy Wheeler, emptywheel
Remember how, in the days after President Obama announced his principles for reforming the dragnet, his Senior Administration Official pretended that any efforts to make the scope of the program worse would come from Congress? [..]
Well, it looks like the Administration isn’t so passive after all. They’re working with House leadership to gut the bill.
TROUBLE FOR USA FREEDOM? – House leadership and Obama administration officials met with committee members Sunday to negotiate changes to key NSA reform legislation, parting late in the evening without reaching a final resolution, said a congressional staffer close to the process. Still, it seems clear that the USA FREEDOM Act, approved by the House Judiciary and Intelligence committees little more than a week ago, will not reach the House floor intact. Some passages have been watered down already, the staffer acknowledged, declining to go into specifics. The bill is set for “possible consideration” this week, according to the schedule circulated by House Majority Leader Eric Cantor’s office.
Word of the talks caused some of the bill’s most ardent privacy and civil liberties backers to cry foul and say they could withdraw support. Areas of concern to watchdogs include possible removal of transparency language allowing companies to tell their customers about the broad numbers of lawful intercept requests they receive; and a debate on whether the search terms used by the NSA to search communications records should be narrowly defined in statute.
“The version we fear could now be negotiated in secret and introduced on the House floor may not move us forward on NSA reform,” said human rights organization Access. “I am gravely disappointed if the House leadership and the administration chose to disrupt the hard-fought compromise that so many of us were pleased to support just two weeks ago,” said Kevin Bankston, policy director of the New America Foundation’s Open Technology Institute.
And while it’s not clear these secret changes would broaden the scope outside of counterterrorism (though I think that’s possible already), it does seem clear the Administration is pushing for these changes because the already weak bill is too strong for them.
Congress is no better.
Advocates fear NSA bill is being gutted
By Kate Tummarello, The Hill
To win the support of NSA defenders, lawmakers abandoned some reform provisions in Sensenbrenner’s original bill. One of the major changes was dropping the appointment of a constitutional advocate to the Foreign Intelligence Surveillance Court, which approves the NSA’s spying requests, and substituting it for a panel of experts.
The bill was also stripped of language that would have allowed tech companies to publish more specific information about the number and types of government requests for user data they receive.
During Judiciary consideration, an amendment to allow less specific reporting was added back into the bill, but some worry that provision is in danger now because the administration thinks it’s already reached a deal that allows tech companies to publish more information about the NSA requests.
While pro-reform advocacy groups and members hailed the House bill as a positive first step, many lamented the revisions and said the legislation will be in trouble on the floor if it undergoes further changes.
A Deep Dive into the House’s Version of Narrow NSA Reform: The New USA Freedom Act
By Mark Jaycox, Electronic Freedom Foundation
Here’s how the House version of the USA Freedom Act compares to the Senate’s version, what the new House version of the USA Freedom Act does, and what it sorely lacks.
The Senate’s Version of USA Freedom Act
As we mentioned when the original USA Freedom Act was first introduced, it proposed changes to several NSA activities and limited the bulk collection of all Americans’ calling records. It would fix a key problem with Section 702 (.pdf) of the Foreign Intelligence Surveillance Amendments Act (FISAA), bring more transparency to the Foreign Intelligence Surveillance Act Court (FISA court), and introduce a special advocate to champion civil liberties in the FISA court.
The House’s New Version of the USA Freedom Act:
The new USA Freedom Act concentrates on prohibiting the collection of all Americans’ calling records using Section 215 of the Patriot Act. Other sections of the bill would allow the FISA Court to assign amici, or non-parties who can brief issues before the court; create new government reports about the spying powers; and create new company reports detailing how many accounts and customers are affected by FISA Court orders.
First and foremost, the bill introduces a different conceptual approach to prohibiting mass spying under Section 215. Unlike the Senate version, which tries to stop the mass collection of calling records by mandating that the records sought “pertain to” an agent of a foreign power or their activities-an approach that we’ve worried about because “pertains to” and “relevant” are so similar-the House version mandates that a “specific selection term” (currently defined as uniquely describing a person, entity, or account) be the “basis for the production” of the records. The overall language may be stronger than in the old USA Freedom Act, but “specific selection term” must be further defined as “entity” could be construed expansively. After the order is filed, the government can obtain up to “two hops“-which may be too expansive for many investigations-from the selection term.
The bill also tries to tighten the “minimization procedures” that apply to government collection of records using Section 215 and other spying authorities like national security letters and the FISA Pen Register/Trap and Trace (PR/TT) provision. But the procedures only touch the FBI, not other agencies-like the NSA-that may be obtaining records using Section 215. In addition, the House version uses language we’ve seen in Section 702’s minimization procedures. If you remember, those procedures are horrendous. They allow for the overcollection, overretention, and oversharing of Americans’ communications “mistakenly” collected. The House must draft stronger minimization language to completely ensure improper information about untargeted users is not collected. For instance, simply inserting the word “acquisition” or “collection” would help.
End the NSA’s Mass Spying
Tell Congress: Support the USA FREEDOM Act. Stop the FISA Improvements Act & Other Fake Reforms.
There’s a powerful reform proposal moving through Congress. H.R. 3361, the House’s version of the USA FREEDOM Act, would limit bulk collection of phone records and add transparency to the egregious NSA spying.
If it passes, the USA FREEDOM Act will be the most meaningful reform of government surveillance in decades. While the USA FREEDOM Act doesn’t address every issue with NSA surveillance, it’s a powerful first step.
But certain members of Congress don’t want reform. Representatives Mike Rogers and Dutch Ruppersberger have introduced a bill that attempts to make NSA spying worse. And Senator Dianne Feinstein is promoting the FISA Improvements Act, a bill posing as reform that attempts to legalize the worst aspects of NSA surveillance.
We can’t let NSA apologists preserve the status quo. Demand real reform. Stop mass spying.