UPDATED: TCP Supports USA FREEDOM Act of 2015 Reining In NSA Domestic Surveillance

On April 28, a bipartisan group of lawmakers introduced legislation in the U.S. House and Senate to roll back domestic surveillance by the National Security Agency.

Called the USA FREEDOM Act of 2015, the proposed legislation not only ends bulk collection, but also enhances transparency and accountability by improving reporting requirements to both Congress and the public regarding the scope of surveillance being conducted under certain laws.  It also includes important improvements to the Foreign Intelligence Surveillance Court.

“We support this significant step towards reining in the government’s widespread, suspicionless surveillance of the American people, including the collection of our telephone call records revealed by Edward Snowden nearly two years ago. This bipartisan bill attempts to protect fundamental civil liberties and privacy by prohibiting bulk collection of our private records, while still preserving the ability of the intelligence community to gather the targeted information it needs to help keep us safe,” said TCP President Virginia Sloan.

“Despite these meaningful reforms, there is more work to be done and we will push to strengthen several provisions as the legislation moves through the process. We will also continue to oppose any efforts to extend the Patriot Act without meaningful reforms that put an end to bulk collection,” Sloan said.

As introduced, the USA FREEDOM Act of 2015 would:

  • end the bulk collection of Americans’ records, including records collected under Section 215 of the Patriot Act, the FISA pen register statute, or National Security Letters by requiring the government to narrowly tailor its collection;
  • increase transparency by allowing communications providers to disclose in more detail the number of surveillance orders they receive;
  • require declassification of significant opinions issued by the secretive Foreign Intelligence Surveillance Court (FISC), or preparation of a summary for the public if declassification is not possible; and
  • require the FISC to appoint a panel of security cleared lawyers to advise the Court in cases involving novel or significant interpretations of law. Among other duties, these “friends of the court” may present legal arguments that advance the protection of individual privacy and civil liberties. The Constitution Project released a report in May 2014 urging the appointment of such an advocate and setting forth requirements for making the advocate effective.

Similar surveillance reform legislation was introduced in the last Congress, but it stalled in the Senate on a procedural vote.  This new version enjoys even broader bipartisan support.  House Judiciary Chairman Bob Goodlatte (R-Va.), ranking member John Conyers (D-Mich.), and Reps. Jerrold Nadler (D-N.Y.) and Jim Sensenbrenner (R-Wisc.)—the original author of the Patriot Act—are all original cosponsors of the House version.  Senators Patrick Leahy (D-Vt.) and Mike Lee (R-Utah) are chief sponsors of the Senate version.

Unfortunately, Senate Majority Leader Mitch McConnell (R-Ky.) recently introduced legislation that would unwisely reauthorize the business records provisions of the Patriot Act without any reforms to surveillance programs or oversight mechanisms.

Sloan said she hoped that as the USA FREEDOM Act moves forward Congress will strengthen, not weaken, its provisions. In particular, Sloan urges Congress to enhance the government reporting provisions in the new bill by requiring the government to disclose the number of individuals whose information is collected under the business records provision of the Patriot Act, the FISA pen register/trap and trace statute, and Section 702 of FISA.  In addition, Congress should strengthen the provisions for a special advocate at the FISC by including a mandate to advance privacy and civil liberties. Congress should also restore the provisions from last year’s Senate bill that require the deletion of data on individuals who are not targets of an investigation or agents of a foreign power.

Regrettably, however, the new bill contains an unrelated provision that would increase the maximum sentence for material support of foreign terrorist organizations from 15 years to 20 years. Cutting off support of terrorist activity is an important and legitimate part of the United States’ counterterrorism strategy. But in providing the legal authority to prohibit and punish such conduct, it is essential that the law respect constitutional freedoms. As The Constitution Project Liberty and Security Committee outlined in its report on reforming the material support laws, the existing statute raises serious concerns under the First and Fifth Amendments because it defines “material support” so expansively and vaguely as to criminalize pure speech furthering only lawful, nonviolent ends. Congress should not exacerbate these problems by increasing the penalties without first addressing the statute’s infringement on our constitutional rights, Sloan said.

Sloan called on Congress to quickly pass the USA FREEDOM Act with these improvements, putting an end to the bulk collection of our phone records once and for all, and to then address other invasive surveillance programs, including the massive “incidental” collection of U.S. person communications under Section 702 of the FISA Amendments Act and Executive Order 12333, which govern surveillance of non-US persons abroad.

UPDATE: On May 6, more than 25 companies, industry associations, and civil society organizations joined TCP in sending a letter in support of the USA FREEDOM Act to key Senate and House members.

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