It's been a long road to reform, and even still we have a ways to go. This bill comes after more than a year of shocking revelations about the NSA's bulk surveillance and cyber programs. It also follows protracted negotiations over legislative language. A few months after the Snowden leaks began, Senator Leahy and Representative Sensenbrenner introduced the original version of the USA FREEDOM Act (S. 1599, H.R. 3661), which offered comprehensive reforms, and which OTI along with dozens of other advocacy groups and companies supported.
When the bill finally came up for a vote, it had been seriously watered downafter a series of backdoor deals between House leadership and Intelligence Community officials. Advocacy groups and companies alike, including OTI, withdrew our support. We also sent a letter to the Senate laying out six ways that the House's bill needed to be improved.
So, the negotiations between Congress and the Administration began again – and this time, they went better than in the House. Senator Leahy's new bill doesn't do everything we'd want, but it does make significant improvements upon the House's bill and it addresses many of the significant concerns we raised in our earlier letter. In particular, the bill:
- Prohibits indiscriminate bulk collection of records and communications data under Patriot Act Section 215, Foreign Intelligence Surveillance Act (FISA) authorities for pen register and trap & trace surveillance, and National Security Letter (NSL) authorities;
- Increases transparency through company and government reporting; and
- Improves up the Foreign Intelligence Surveillance Court (FISC) process by beefing up the Special Advocates' duties, and increasing transparency around the FISC's significant decisions.
The bill also removes the language that could have implicitly codified controversial "about" searches, and limits the collection of phone records under Section 215 to counterterrorism purposes. And, it doesn't include any new data retention requirements for Internet and telecommunications companies, which would have caused OTI, and likely many other advocacy groups and companies, to jump ship and make as much noise as possible on our way out.
What the bill doesn't do is attempt to deal with FISA Amendments Act Section 702 and Executive Order (E.O.) 12333 authorities, under which the NSA operates its other gravely concerning bulk surveillance and cyber operations. These programs account for the majority of the NSA's collection, and as we conclude in our new paper, "Surveillance Costs," result in a wide array massive costs to our economy, Internet freedom, and cybersecurity.
As our coalition's letter states, we support S. 2685 and urge Congress to pass it quickly, and further urge Congress to "immediately conduct public oversight and work to reform [Section 702 and E.O. 12333] authorities, which pose grave threats to privacy, civil liberties, and Internet security."