The USA Freedom Act, a bill meant to end NSA surveillance of phone records, has passed the House of Representatives. After several rounds of amendment and debate over the past weeks, the House passed it by a margin of 303 to 121, putting the ball in the Senate's court. The first anti-NSA surveillance bill to be passed since the first classified documents leaked last year, the USA Freedom Act requires the NSA to leave phone records in the hands of telephone companies for 18 months, making searches for specific terms only after getting court approval, instead of collecting them in bulk and storing them for years. It's also meant to limit how the agency collects online communications and make it easier for companies to report the orders they receive. Many former supporters, however, now see it as more of a paper tiger than a real solution.
The USA Freedom Act passed the Judiciary and Intelligence committees earlier this month, but only after revisions that dampened enthusiasm among reform advocates. Despite this, it still garnered broad support, and the House was expected to send it through without further changes. Shortly before today's vote, however, the House of Representatives Rules Committee reported a significantly amended version of the bill. The USA Freedom Act was already a compromise, but the amendment tipped it still further towards the status quo. A summary by the New America Foundation’s Open Technology Initiative notes that under the new text, the Director of National Intelligence will be allowed to lead declassification reviews, rather than the Attorney General. Companies can reveal less about the orders they’ve received than they could in previous versions. While the NSA could previously only look at the online communications of Americans with messages to or from targets, the amendment also allows it to collect material "about" the target.
'Specific selection terms' are no longer so specific
But the biggest problem may be a change to the definition of a "specific selection term" — the queries agencies can use to look for individual call records. In the text that passed the House Judiciary Committee, a selection term was "a term used to uniquely describe a person, entity, or account." Under the amendment, it’s "a discrete term, such as a term specifically identifying a person, entity, account, address, or device." That adds two categories of acceptable search terms and broadens the scope, changing the definition from a series of items to things like those items. "Congress has been clear that it wishes to end bulk collection, but given the government's history of twisted legal interpretations, this language can't be relied on to protect our freedoms," said the EFF in a statement about the new, "gutted" bill.
This expansion in particular led a wide swathe of Silicon Valley to drop its support for the bill. Reform Government Surveillance, an organization made up of tech companies including Apple, Facebook, Google, and Microsoft, issued a statement calling it an "unacceptable loophole that could enable the bulk collection of internet users' data." Several other organizations that wholeheartedly supported the original USA Freedom Act — and were willing to get on board with the amended version — have withdrawn their endorsements as well. Kevin Bankston from the New America Foundation’s Open Technology Institute, for example, originally called the bill "a milestone" in surveillance reform. Now, he says, the institute can no longer support it. "The original USA Freedom Act was a great leap forward on surveillance reform, and the compromise version of two weeks ago was still a big step forward, but today’s version is merely leaning in the right direction."
How could anyone support a bill that doesn't require probable cause to spy on Americans?— Rush Holt (@RushHolt) May 22, 2014
On Wednesday, the White House threw its weight behind the bill, urging quick passage in the House and Senate. "The bill ensures our intelligence and law enforcement professionals have the authorities they need to protect the Nation, while further ensuring that individuals’ privacy is appropriately protected when these authorities are employed," it said. "Overall, the bill’s significant reforms would provide the public greater confidence in our programs and the checks and balances in the system." Given the Obama administration’s lackluster privacy reforms so far, this wasn’t a particularly good sign.
"This is not the bill that was reported out of the Judiciary Committee unanimously."
Unlike in the Judiciary Committee vote, there was no chance for members of Congress to restore the old provisions. The Rules Committee didn’t allow debate on amendments, leaving only the chance for House members to either protest or support the full bill. Some, like Rep. Zoe Lofgren (D-CA), changed their previous positions, saying that the bill had been watered down beyond recognition. "This is not the bill that was reported out of the Judiciary Committee unanimously," said Lofgren. "I voted for that bill not because it was perfect, but because it was a step in the right direction. After the bill was reported out, changes were made without the knowledge of the committee members, and I think the result is a bill that will actually not end bulk collections, regretfully."
"They're trying to scare you by making you think there are monsters under the bed."
Rep. Dutch Ruppersberger (D-MD), by contrast, said that the amendments allayed his fear that the original USA Freedom Act "set too high a standard for intelligence collection. In short, it would have threatened America's safety by cutting off the building blocks of foreign intelligence investigations." He disagreed with Lofgren and others, saying that they had mischaracterized the changes. "Those that say this bill will legalize bulk collection are wrong," he said. "They're trying to scare you by making you think there are monsters under the bed. There aren't. We end all collection of metadata records." Ruppersberger, along with Rep. Mike Rogers (D-MI), authored the Intelligence Committee's FISA Transparency and Modernization Act, an alternative bill that would have let the NSA collect data without prior court approval.
Though many of them no longer support the bill, privacy advocates still see its passage as a net benefit. With the USA Freedom Act through the House, they can focus their attention on the Senate, where bill sponsor Patrick Leahy (D-VT) has previously promised to push for greater privacy protections. "Make no mistake that the version passed by the House is starkly different than the Senate version," says Mark Jaycox of the EFF. "The Senate must continue with its version and put forth comprehensive, and strong, NSA reform."