Senators Should Oppose Senator McConnell’s Amendments and Pass a Clean Version of the USA FREEDOM Act

This past
Sunday night, the Senate took the historic step of voting 77-17 to allow debate on the USA FREEDOM Act (H.R. 2048)
as well as any proposed amendments to the bill. Unfortunately, it looks like
all of the amendments to be offered on that surveillance reform bill, which New
America’s Open Technology Institute supports, are intended to water down or
delay implementation of its reforms. We therefore urge Senators to oppose those
amendments and pass a clean version of the bill, which is the result of nearly
two years of intense debate, negotiation, and bipartisan compromise.

Last month,
the House overwhelmingly approved the USA FREEDOM Act with a vote of 338-88, and the vast majority of “no” votes came from members who do not believe the
bill’s reforms go far enough. With this much support for strong surveillance
reform in the House, any amendment to weaken USA FREEDOM will seriously endanger
the bill’s ability to pass the House again—which is why the both the Republican
and Democratic leaders of the House Judiciary Committee have called on the Senate
to quickly pass the bill as is. Particularly if Senate leaders want to minimize
the amount of time that key USA PATRIOT Act provisions are not in effect due to
the June 1st “sunset” of those
provisions, the fastest, easiest, and most responsible thing for the Senate to
do is to simply pass the House bill without amendment and immediately send it to
the President for his signature.

Instead,
Senate Majority Leader Mitch McConnell (R-KY) has introduced four amendments
that would undermine USA FREEDOM’s reforms, while making clear he will not
allow votes on any amendments that would strengthen the bill. Those four
amendments will likely be debated and voted on in the next day or two, after which
the Senate is expected to vote on final passage of the USA FREEDOM Act. While
the Open Technology Institute (OTI) supports the House-passed bill and would support and welcome amendments that would strengthen its reforms, we strongly oppose any
amendment that would weaken the bill such as those proposed by Senator
McConnell.

Senator McConnell has made very clear that he believes that Sunday night’s sunset
of PATRIOT Act Section 215 puts the nation in danger. However, under his
leadership, the Senate’s national security hawks allowed these provisions to expire by trying
to block the USA FREEDOM Act that would have preserved those authorities while also
protecting Americans’ privacy. The bill even has the support of the Director of National
Intelligence (DNI) and
the Attorney General, who have not only assured Congress that it “preserves
vital national security authorities,” but also that it “preserves the essential
operational capabilities of the telephone metadata program and enhances other
intelligence capabilities needed to protect our nation and its partners.” The Director
of the National Security Agency (NSA) also wrote to the Senate, making clear that the NSA knows of “no
technical or security reasons why [information collection consistent with the
USA FREEDOM Act] cannot be tested and brought online within the 180 day period”
currently provided for in the bill.

Given the broad
support of the Intelligence Community, Congress, the Administration, the American tech industry, and privacy advocates, it is unclear why Senator McConnell is
playing games with authorities that he deems essential to Americans’ safety by
pushing for amendments that would delay or threaten their reinstatement. As we
explain in more detail below, all of these amendments seek to address problems
that the leaders of the Intelligence Community have already stated do not
exist. Rather than stalling this bill and lengthening the lapse in these
authorities, the Senate should reject these amendments and move forward on
passage of a clean bill.

What follows
is a brief explanation of each amendment, and the serious concerns they would
raise:

Amendment No. 1452: This amendment would require –

· Removal
of the Requirement to Declassify Significant FISA Court Opinions: Currently the USA FREEDOM Act requires
the DNI to review all significant FISA Court decisions and either declassify
and publicly release the opinions or release summaries of the opinions that
would be sufficient to inform Americans and Congress of the general context of
the decision, the legal issues in question, and how the court ruled. If this
amendment passed, the DNI would no longer have to conduct a declassification
review of FISA Court decisions or release any new information about them.

o
Why This Is A Problem: This
is one of the most important accountability mechanisms in the bill. The release
of significant FISA Court decisions is essential to ensuring that the
government and the FISA Court are interpreting the surveillance authorities as
Congress intended, and to ensuring that secret law cannot again be used to authorize
massive spying programs that Congress did not intend, as was the case with bulk
collection under Patriot Act Section 215. Additionally, no one in the
Intelligence Community has suggested that this declassification provision would
be harmful to national security. This amendment would therefore needlessly reduce
transparency and accountability while providing no countervailing benefit.

· Watered-Down
Amicus Provision: Under the
House-passed bill, the FISA Court must appoint an amicus curiae (“friend of the
court”) to serve in any case that “presents a novel or significant
interpretation of the law,” or issue a written finding that an appointment is
not appropriate. The amicus would, as appropriate, provide the court with legal
arguments that advance the protections of privacy and civil liberties,
information relating to intelligence collection or technology, or any other
relevant legal arguments, and it would have access to all legal or other
materials that the court deems relevant to its duties. The amendment would
significantly weaken this provision by removing the requirement that the FISA
Court provide written notice about when and why it chooses not to appoint an
amicus. It would also limit the amicus’ duties to whatever the court assigns,
without any mention of the duty to advocate for the advancement of privacy and
civil liberties. Additionally, the amicus would only have access to
applications, certifications, petitions, and motions at the discretion of the
court and would not necessarily have access to legal precedent or other relevant
materials.

o
Why This Is A Problem: The amicus provision in the House-passed bill
is already crafted in a way that gives the FISA Court an enormous amount of
discretion in deciding when and how to call upon an amicus. This amendment
would needlessly further weaken this provision, which was already significantly
watered-down from the version included in the 2014 Senate bill, and in the
process render it completely toothless. All this despite any indication from
the Intelligence Community that the House-passed provision would harm national
security or interfere with the FISA Court’s ability to expeditiously carry out
its function.

· A
Notice Requirement for Data Retention: This
amendment would require electronic communications service providers (phone and
Internet companies) that hold call detail records (CDRs) and have previously received
government orders requesting CDRs to give the Attorney General at least 180
days advance notice if they intend change their retention policies, where that
change would result in their holding customer records for less than 18 months.

o
Why This Is A Problem: This amendment is entirely unnecessary given
the DNI’s statements that no new data retention
requirement is needed, and that
the Intelligence Community would immediately inform Congress if that were to
change. Requiring private businesses to alert the government ahead of time
before it can change its internal data retention policies is harmful to
innovation, threatens privacy, and could be intended as a prelude to a
requirement that companies keep certain records for a specified period of time.
Such a mandate is bad public policy and would be uniformly
opposed by the House, the tech industry,
and the privacy community. This
amendment too would likely meet the same strong opposition from all of these
groups, and is strongly opposed by OTI.

· Certification
of Effectiveness to Congress:
This amendment would require the DNI to certify to Congress 30 days before the
deadline for final implementation of the reforms in USA FREEDOM that the new
processes and procedures work, that they will not harm national security, and that
they will effectively protect classified information.

o
Why This Is A Problem: Again, this amendment is unnecessary. The DNI has already written to Congress
confirming that the USA FREEDOM Act “preserves
the essential operational capabilities of the telephone metadata program and
enhances other intelligence capabilities.”
Like the delay in implementation of the bill’s reforms, and the other
provisions that this amendment seeks to weaken, this certification adds no
benefit, but if passed, the amendment would stall passage of the bill, and is also
likely designed to give opponents of the bill the opportunity to interrupt the
implementation process, or roll back its important reforms.

Amendment No. 1450:

· Doubled
Wait Period Before Implementation of Reforms: The current bill requires
the government to implement the required reforms in 180 days. This amendment
would extend the implementation period to 12 months.

o
Why This Is A Problem: Like the data retention provision of the
amendment, this provision is also entirely unnecessary. The Director of the NSA wrote to Senator
McConnell assuring
him that there are “no technical or security reasons” why the changes to the NSA’s CDR
program that would be made in response to USA FREEDOM could not be brought
online within the 180 day period set forth in the bill. Given that there is no technological or operational
reason to delay the implementation of these important reforms, this amendment
is likely intended to give opponents of reform additional time to interrupt the
process and roll back the reforms in USA FREEDOM, and would likely be staunchly
opposed in the House.

The following
two amendments offered by Senator McConnell draw on individual portions of the first
Amendment (No. 1452). They include the
following changes to the underlying House-passed bill:

Amendment No. 1449:

· Notice Requirement for Data Retention

· Certification of Effectiveness to Congress

Amendment No. 1451: Watered-Down Amicus Provision

Instead of
taking the last five months to consider and debate reform legislation, Senate
national security hawks’ stalled and obstructed passage of the USA FREEDOM Act,
and promulgated myths about problems with the bill that simply never existed. Their
actions caused the lapse of the very authorities they were attempting to
preserve. Now, instead of moving forward on the swift passage of the
House-passed bill, Senator McConnell has introduced and is expected to allow
votes on four amendments that would unnecessarily weaken the bill and threaten
its final passage. The USA FREEDOM Act not only has the backing of a vast
majority of the House of Representatives,
it also has the support of the Intelligence Community, the Administration, the American tech industry, and major privacy and advocacy groups. It is time for the Senate to follow the
House’s lead by rejecting these problematic amendments and passing a clean
version of the USA FREEDOM Act.