Q & A on the USA FREEDOM Act of 2015

Today Members of both the House and Senate introduced new versions of the USA FREEDOM Act to end the NSA’s bulk collection of Americans’ communications records. CDT supports this bill and considers it a significant first step in broader government surveillance reform. Here is a quick Q &A on why we support the bill, what it addresses, what it doesn’t, and what is next.

Q1: Why does CDT think the USA FREEDOM Act of 2015 is better than sunset of Sec. 215 of the PATRIOT Act?

A1:  The sunset would only affect Sec. 215 – so it would not stop bulk collection under, for example, the FISA pen/trap statute. The USA FREEDOM Act would end bulk collection under Sec. 215, the FISA pen/trap statute, and national security letters. In addition, the bill would include significant new transparency requirements and FISA Court reforms. However, CDT believes Sec. 215 should sunset if Congress does not enact legislation to end bulk collection.

Q2:  Why is this bill worth supporting when it doesn’t address 702 backdoor searches or the DEA‘s criminal bulk collection authority?

A2:  CDT is definitely invested in addressing these problems, and we’d certainly prefer to see the USA FREEDOM Act make far more reforms than it does. However, it is not an omnibus surveillance reform bill. The USA FREEDOM Act addresses one category of problems, mainly domestic bulk collection under the PATRIOT Act. [Note: the DEA authority is criminal and was not created in the PATRIOT Act.] Congress should view the bill through this lens too – as one step, not the final step. We believe that enacting effective reform to domestic bulk collection under the PATRIOT Act will create a more favorable environment in Congress to enact reforms in other areas – especially around the sunset for Sec. 702 in 2017.

Q3:  How do we know the USA FREEDOM Act won’t enable bulk collection through a stretched interpretation of “specific selection term” (SST)?

A3:  The bill’s transparency provisions will make it much more likely that stretched SST interpretations will become known. A feature of the bill we strongly support is a requirement that the government must declassify significant FISA Court opinions, and the bill specifically requires disclosure of FISA Court opinions of any novel or significant construction of SST. [Sec. 402] Other transparency provisions require the court to publicly report the number of Sec. 215 applications with SSTs that do not specifically identify an individual, account, or personal device. [Sec. 601] Absolute certainty is impossible, but the government will be under more pressure than ever before not to do anything funny with SSTs under Sec. 215.

Q4:  What if the Administration shut down the NSA’s phone record bulk collection program unilaterally?

A4:  CDT believes the Administration should shut down the program unilaterally. However, that wouldn’t change the legal precedent underlying the bulk collection program. The point of the USA FREEDOM Act isn’t just about ending one bulk collection program; it’s about dealing with the government’s statutory interpretation of “relevance,” which government officials believe gives them legal authority to collect records in bulk under Sec. 215 of the PATRIOT Act and other laws. If USA FREEDOM passes, mere “relevance” to an investigation would not be enough to authorize bulk domestic surveillance under national security laws, no matter how expansive the government’s view of “relevance” becomes. If Congress cannot pass effective reform that ends bulk collection, we think it becomes all the more important that Administration shut down the program.

Q5:  Does this bill do anything for non-US persons?

A5:  Only in a narrow sense. The USA FREEDOM Act outlaws bulk collection of telephone calls to, from, and within the US, regardless of the citizenship of the person making or receiving the call. To the extent a non-US person, whether inside or outside of the US, makes calls to a person in the US, the person outside the US will benefit from the end of bulk collection under Section 215. In addition, the bill’s FISA Court opinion declassification requirement is not limited to domestic laws, so it should give some insight into how US surveillance authorities apply to non-US persons. The bill’s company reporting provisions [Sec. 604] will also shed light on the volume and type of surveillance requests – both domestic and international – the government is making on US internet and telecom companies. Other than that, there is little that is helpful to non-US persons. They are still subject to targeted surveillance under FISA Section 702, and to targeted and bulk surveillance under Executive Order 12333. However, our view is that passing successful reform for domestic PATRIOT Act surveillance is critical to prompting Congress to take on reforms in others areas, such as non-US person surveillance.

Q6:  What about the pending lawsuits against the bulk collection program? The 2nd Circuit Court seemed willing to declare the program illegal, thought the 9th Circuit seemed inclined to uphold the program. If Congress passes this bill, won’t that moot the 2nd Circuit’s decision?

A6:  The plaintiffs in litigation at the Circuit Court level argue that the Sec. 215 bulk collection program is illegal under Sec. 215 because Congress did not authorize it. No matter what happens – whether Congress passes USA FREEDOM, a straight reauthorization of Sec. 215, or lets Sec. 215 sunset – the statutory grounds for the litigation will be mooted and the cases may proceed based on constitutional grounds. We believe it is preferable for the statutory grounds to be mooted because Congress outlawed the program rather than because Congress did not authorize it. That latter ruling could invite legislation to authorize the program.

Q7:  What happens if Congress, especially the Senate, weakens the USA FREEDOM Act before passage?

A7:  We believe it is a real risk that the Senate will weaken the USA FREEDOM Act right before the sunset deadline, forcing the House to accept a weaker bill. Until then, CDT will call it as we see it. If the bill is significantly weakened in a critical area – especially the SST definition and/or FISC opinion transparency – then we would have to oppose the bill in favor of sunset of Sec. 215.