With the clock running out to pass NSA reform before certain Patriot Act provisions sunset, privacy groups are pulling support for the USA Freedom Act–a reform bill expected to pass the House in a scheduled Wednesday vote.
Reform advocates had always been half-hearted in their support of the watered-down bill, and were encouraged when a federal court ruled last week that the NSA’s phone metadata gathering is illegal under the Patriot Act.
Specifically, the court rejected the government’s expansive interpretation of Section 215, which permits the gathering of information “relevant” to an ongoing investigation. The court called this generous definition of “relevance” “unprecedented and unwarranted.”
In light of that ruling, privacy groups now believe the USA Freedom Act no longer goes far enough in curbing surveillance. The court declined to rule the program unconstitutional, and left it up to Congress to authorize should they choose to do so.
“The Second Circuit decision has changed the playing field,” the Electronic Frontier Foundation wrote in an op-ed Tuesday.
While they have supported every version of the act so far, “as a result of the Second Circuit decision, the USA Freedom Act’s modest changes appear even smaller compared to the now judicially recognized problems with the mass collection of Americans’ records.”
EFF lists several problems with the legislation, including that it is “out of sync with the court’s narrow view of permissible collection of records.” They want the bill to have a “rigorous definition” of the search terms the government can use to request records, securing any loopholes that they might exploit to continue mass data collection.
They also want the bill to clearly define “relevant” and “investigation,” lest they erase the ground gained in the court’s ruling. “This easy task will make sure that the law is not read as rejecting the Second Circuit’s reading and will help ensure that the USA Freedom Act actually accomplishes its goal of ending bulk collection.”
On Wednesday, the Sunlight Foundation released a similar statement. “As time has progressed, we’ve seen what began in 2013 as a decent, if tunnel-visioned, compromise chipped away at, including the transparency and accountability provisions, in the name of political viability,” they wrote. “Meanwhile, the sacrifices made in the bill in order to secure those modest reforms grew more dramatic.”
Although the piece includes a long list of various other concerns, they, too, cite the court case as their tipping point in pulling support.
All of this is to say that it’s unclear whether the primary goal of USA FREEDOM — the rewriting of Section 215 to stop bulk collection — is already accomplished, and whether USA FREEDOM could open us all up to more secret interpretations and new venues of surveillance.
The ACLU recently wrote in a blogpost that they do not support or oppose the bill, but their executive director Anthony D. Romero said last month that Congress should allow Section 215 to sunset. “If we don’t allow Section 215 to sunset, we risk making permanent a “new normal” of government surveillance and extending surveillance programs that haven’t yet been – and may never be – disclosed to the public.”
The organization also noted that they “think that members of Congress should demand more.”
