OTI Supports New, Stronger USA FREEDOM Act to Rein in NSA Surveillance

Washington, DC — Today, Senator Leahy re-introduced a new version of the USA FREEDOM Act intended to reform the National Security Agency’s surveillance programs. The Open Technology Institute (OTI) supports the new version of USA FREEDOM as a strong first step toward comprehensive surveillance reform, and urges the Senate and the House to quickly pass the bill without weakening it again.

The new version of the bill includes many of the improvements that the Open Technology Institute (OTI) and a coalition of privacy and civil liberties groups demanded after the version of the bill that was approved by the House of Representatives was so watered-down that privacy groups withdrew their support. The re-introduction of the newly-strengthened bill coincides with today’s release of the new OTI report Surveillance Costs: The NSA’s Impact on the Economy, Internet Freedom, and Cybersecurity, which catalogues the significant costs of the NSA programs beyond their impact on privacy and civil liberties.

As OTI and its allies pressed for in their original letter to Senate leaders, the new version of the bill: - Strengthens and clarifies the ban on “bulk” collection of records, including by tightening definitions to ensure that the government can’t collect records for everyone in a particular geographic area or using a particular communication service, and by adding new post-collection minimization procedures; - Allows much more detailed transparency reporting by companies—and requires much more detailed transparency reporting by the government—about the NSA’s surveillance activities; and - Provides stronger reforms to the secret Foreign Intelligence Surveillance Court’s processes, by creating new Special Advocates whose duty is to advocate to the court in favor of privacy and civil liberties, and by strengthening requirements that the government release redacted copies or summaries of the court’s significant decisions.

“This new, stronger version of the USA FREEDOM Act would go a long way toward stemming the costs of the NSA’s spying programs and restoring trust in the American Internet industry, by prohibiting bulk records collection and providing substantially more transparency around the NSA’s surveillance programs,” said Kevin Bankston, OTI’s Policy Director and an author of today’s report. “But ensuring that a strong version of USA FREEDOM becomes law is only the first step toward repairing the damage that the NSA has done to America’s tech economy, its foreign relationships, and the security of the Internet itself.”

Today’s bill unfortunately does not close the so-called “back door search” loophole and require that the NSA obtain a court order before searching its databases for information about Americans, a requirement that the House approved as an amendment to the Defense Appropriations bill last month. Thankfully, however, it also does not include any requirement that phone companies store data for a fixed period of time to facilitate the NSA’s surveillance, an idea for which Senate Intelligence Committee Chairman Dianne Feinstein has voiced support. Such a data retention mandate would likely garner fierce opposition from privacy advocates as well as telecommunications and technology companies.

“For the first time in decades, Congress has the opportunity to pass serious reforms that will significantly increase protections for Americans’ privacy and civil liberties,” said Robyn Greene, OTI Policy Counsel specializing in surveillance and cybersecurity issues. “The version of the USA FREEDOM Act that Senator Leahy introduced today is a vast improvement over the House-passed bill. OTI supports it as a much more effective ban on bulk collection and an important first step toward comprehensive reform.”

Greene continued, “If Congress passes this version of the USA FREEDOM Act, it would be a historic win for Americans’ privacy and civil liberties – but Congress’ work on surveillance reform has only just begun. After passing this bill, Congress must push forward on reining in the NSA’s other programs, including its mass collection of Internet communications under FISA Amendments Act Section 702 and under Executive Order 12333, which we were recently warned is the authority under which the bulk of the NSA’s surveillance occurs. Members of Congress must start asking questions about what kinds of surveillance and cyber operations the NSA engages in under these authorities, and whether they are making the Internet and our country less secure.”

Bankston added, “We desperately need more comprehensive reforms to address the mass Internet surveillance being done inside the United States under Section 702 of the FISA Amendments Act and outside of the country under the President’s authority. Congress also needs to protect the security and popularity of U.S. tech products and services by prohibiting the NSA from weakening them with surveillance ’back doors,’ a prohibition that the House of Representatives supported by a vote of nearly three to one just last month. In the NSA reform debate, it’s high time for us to move away from a simplistic debate over privacy versus security and start weighing the full costs of these surveillance programs to our tech economy and our cybersecurity.”