The stated goal of the USA FREEDOM Act (H.R. 3361) is to prohibit the NSA’s bulk collection of domestic phone, email, and other records. To achieve this goal, the bill should close loopholes in the legislative language and establish minimization procedures governing acquisition, retention and use. Further, improvements should be made to the bill’s provisions regarding Section 702 of FISA, transparency reporting, and reforms of the Foreign Intelligence Surveillance Court (FISC).
CDT released a comprehensive summary and section-by-section analysis of the USA FREEDOM Act, available here.
Although introduced to prohibit bulk collection, the version of the USA FREEDOM Act passed by the House contains significant loopholes causing it to fall short of this objective. These loopholes largely stem from last-minute changes to the definition of “Specific Selection Term” in Section 107 of the bill, which is key to the bill’s goal of requiring that surveillance target suspected wrongdoers. Concerns over these changes were so strong that the bill lost support of a broad coalition of civil society advocates, many of America’s biggest tech companies, and half of the bill’s co-sponsors. Specific problems with the revised definition are:
- Excessive Ambiguity: The concept of “specific Selection Term” does not have a history of use in law, and the bill’s definition of “specific selection term” contains a non-exclusive a “such as” clause, which makes the term highly ambiguous and vulnerable to exploitation.
- Potential Mass Collection: In light of the definition’s ambiguity and the lack of a narrow tailoring requirement, a specific selection term could encompass a major service provider or a large geographic region such as a city or state, thereby sweeping up millions of Americans in a single FISA order. During a June 5 Senate Intelligence Committee hearing, Chairman Diane Feinstein suggested that the definition is broad enough that it might be used to obtain all flight manifests of an entire airline.
- Loopholes in New Terms: “Address” and “device” were added to the definition as examples of specific selection terms, but with loopholes that could permit mass collection. For example, if “address” is read as an IP address block, or if “device” is read as a large-scale router, a single order could encompass the data of thousands of individuals.
- FISC Disclosures Are Not Sufficient: The bill’s requirement – in Sec. 401 – that the FISC publicly disclose important interpretations of law is not sufficient to prevent exploitation of the bill’s ambiguities. The bill gives the Office of the Director of National Intelligence discretion to redact these rulings, or to publicly release them in a summary form. This could lead to vague disclosures which fail to alert the public whether the FISC has interpreted Specific Selection Term in a highly broad manner to facilitate mass collection. While the declassification of significant opinions is an important reform, it cannot be relied on to effectively end bulk collection.
While there is likely no “silver bullet” to solving the bulk collection problem, making several further revisions to the USA FREEDOM Act can alleviate the risk of overbroad collection while providing government with the necessary flexibility to protect security:
- New Minimization Procedures: Congress should add new minimization procedures to the bill that would limit – to the greatest degree possible – the acquisition, retention, and use of surveillance to targets of investigations, suspected agents of foreign powers, and direct contacts of such individuals.
- Clear Statement of Purpose: The bill’s definition of “Specific Selection Term” should clearly state that its purpose is to narrowly tailor collection to affect as few extraneous individuals as possible.
- Negative Clause: A non-exclusive negative clause should be added to the bill’s definition of Specific Selection Term,” clarifying it cannot be used to denote large geographic areas such as area codes, zip codes, cities, or states.
Prohibiting bulk collection is the most critical issue regarding the USA FREEDOM Act, and support of many privacy advocates and businesses will likely hinge on this issue. However, other important reforms that the bill should address include the following:
- Section 702: While more Americans are currently affected by the NSA’s ongoing bulk collection program, significant problems exist regarding the PRISM and Upstream programs conducted under Section 702 of FISA. As CDT has stated before, the serious issues with Sec. 702 infringe upon American’s Fourth Amendment rights, harm the human rights of individuals abroad, and are drastically damaging the American tech industry globally. The USA FREEDOM Act should remove its reference to “about” communications, which have never been authorized by statute, and close the backdoor search loophole, which permits the NSA to deliberately seek out Americans’ communications without court approval. Further, Congress should commit to a comprehensive review of Section 702 in the future.
- Transparency: Sec. 604 of the USA FREEDOM Act provides valuable improvements to transparency by permitting new company reporting, however greater reporting can be allowed without compromising ongoing operations. The bill should permit reporting on separate legal authorities in bands of 250, rather than require – as the bill currently does – that companies lump orders under all authorities together. Further, the bill should enhance reporting accuracy by permitting reporting of “accounts affected” rather than “selectors targeted.”
- Special Advocate: Currently, Sec. 401 of the USA FREEDOM Act merely encourages amicus participation, with no statutory charge regarding what issues to advocate. The bill should create a special Advocate, specifically tasked with vigorously defending privacy, civil liberties, and transparency in important FISC proceedings. This would more effectively prevent unnecessarily broad surveillance, enhance the value of Court declassifications, and help restore public trust in the FISC.
Reform of overbroad surveillance is a pivotal civil liberties and human rights issue of our time, and the USA FREEDOM Act is one of the most significant privacy bills in several decades. As such, it is critical that the bill actually prohibits mass surveillance of individuals with no connection to terrorism or an investigation. While the USA FREEDOM Act takes some positive steps forward, the House passed a version that ultimately falls well short of this goal. It is now up to the Senate to make the bill effective, and the reforms described above would be an excellent start.