House Passes ‘Gutted’ NSA Surveillance Reform Bill

Giuseppe Macri Tech Editor
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The U.S. House of Representatives passed the National Security Agency reform bill, the USA FREEDOM Act, by a bipartisan vote of 303 to 121 Thursday in the most significant legislative step toward ending bulk surveillance yet.

Passage of the bill comes after more than six months of delay and two weeks of markup, debate and amendment in the House, during which it sustained multiple significant changes and watered-down language that have led many of its initial tech community and  privacy and civil liberties advocates to retract their support.

Co-written and sponsored by PATRIOT Act author and Republican Wisconsin Rep. Jim Sensenbrenner, the bill was, in its original form, the most in-depth overhaul of NSA legality and procedure since the leaks of classified Internet and telephone bulk surveillance programs by former agency contractor Edward Snowden last year.

The bill specifically addresses PATRIOT Act Section 215 and FISA Section 702, which are the primary sources of legal justification for the mass collection and surveillance of Americans’ and foreign citizens’ phone records, Internet communications, metadata and more.

If passed in the Senate and signed in the White House, which endorsed the bill Wednesday, the bulk collection and storage of Americans’ phone records and data would be taken out of the NSA’s hands. Private companies would be tasked with holding the data themselves for 18 months, forcing the signals intelligence agency to obtain court orders to access only specific targets’ data.

It would also prevent the FBI’s use of national security letters and Foreign Intelligence Surveillance pen registers to make bulk data requests, and change the makeup of the FISA Court, which approves agencies’ subpoenas for data. Companies would also have more freedom to publicly share more information about the data requests they receive from the government.

Vermont Democrat, president pro tempore and Senate Judiciary Chairman Patrick Leahy wrote the Senate version, where the bill already carries significant bipartisan support.

Shortly before Thursday’s vote the House Rules Committee released the amended the version of the bill, which cited major changes including reducing the amount of information companies can reveal about data requests from the government, putting the director of national intelligence in charge of declassification reviews instead of the attorney general, and letting the NSA collect information “about” a target, as opposed to just the online communications between targets.

The most worrisome change was to the search terms the NSA can use to explore call records, according to the Electronic Frontier Foundation. In the House Judiciary Committee version a “specific selection term” was defined as “a term used to uniquely describe a person, entity, or account,” while in the passed version it was amended to “a discrete term, such as a term specifically identifying a person, entity, account, address, or device.”

Adding two categories broadens the scope of acceptable search terms, and expands the definition from just specific items to things similar to those items.

On Tuesday the EFF described the bill as “gutted,” “severely weaken[d],” and “potentially allowing bulk surveillance of records to continue.”

“Congress has been clear that it wishes to end bulk collection, but given the government’s history of twisted legal interpretations, this language can’t be relied on to protect our freedoms,” the organization said.

Apple, Facebook, Google, Microsoft and other Silicon Valley giant’s joint Reform Government Surveillance organization has also withdrawn its support for the same reason, calling it an “unacceptable loophole that could enable the bulk collection of internet users’ data” in statement.

A number of House members protested the suspension of the rules which preceded the vote, preventing members from debating amendments and forcing all or nothing support.

“This is not the bill that was reported out of the Judiciary Committee unanimously,” California Democratic Rep. Lofgren said. “I voted for that bill not because it was perfect, but because it was a step in the right direction. After the bill was reported out, changes were made without the knowledge of the committee members, and I think the result is a bill that will actually not end bulk collections, regretfully.”

Others disagreed, and insisted the bill defined the appropriate balance between privacy and security.

“Those that say this bill will legalize bulk collection are wrong,” Maryland Democratic Rep. Dutch Ruppersberger said. “They’re trying to scare you by making you think there are monsters under the bed. There aren’t. We end all collection of metadata records.”

“This bill strikes the balance to allow this transparency for civil liberties but while it underscores the ability of our intelligence community to do their job,” New Jersey Republican Rep. Frank LoBiondo said.

Despite withdrawing specific support for the bill, groups and members agree its a move in the right direction. The EFF in particular expressed optimism for the bill’s debut in the Senate, where Leahy has indicated his intention to include stronger privacy measures.

“We are encouraged by Senator Leahy’s commitment to continue with the more comprehensive version of the USA FREEDOM Act over the summer and look forward to working towards NSA reform in the Senate.”

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