Congress Has One Month Left To Change Or Renew Controversial Bulk Phone Data Surveillance Program

(Brad Clinesmith)

It’s been two years since we found out that the NSA has been quietly scooping up basically everyone’s phone records, willy-nilly, without warrants. The revelations of widespread surveillance freaked plenty of people out, but under existing law, the agency has acted legally. To get change, then, you’d need to change the law… and Congress has 33 days remaining in which to do exactly that.

Three key provisions of the Patriot Act will expire on June 1 of this year. The biggest is known as Section 215: that’s the part of the law that lets the NSA do those huge bulk phone data sweeps, in which basically all of us have been caught up.

With the expiration date looming on Section 215 and the other two provisions, Congress has about four weeks left to take one of three actions: they can either renew them wholesale, renew them partially with changes, or let the provisions all simply expire and cease being law.

Letting sections of the Patriot Act simply sunset doesn’t require Congress to do anything at all; inaction, therefore, is a choice — and one Congress is deeply unlikely to take. Meanwhile, there is a proposed bill in the Senate that would entirely extend the authorization for all parts of the Patriot Act, as is.

And in the middle, hovering conveniently in the position of political compromise, we have a new bill introduced yesterday in the House. Its full name is the unwieldy Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015, a fancy-pants backronym that makes it the USA FREEDOM Act.

USA Freedom seems reasonably likely to end up as law (at least, as compared to most bills). A previous version of the Act passed the House in 2014 but failed to advance in the Senate before the Congressional term expired. The new version once again has bipartisan support, but it also has something the first one didn’t: a serious looming deadline. The combination of compromise (which politicians like to say they support) plus impending time crunch is a big mark in the “likely to go somewhere” column.

So what, specifically, will this legislation do?

The full proposed bill (PDF) is pretty dense. So dense, in fact, that the House Judiciary Committee has provided a TL;DR fact sheet, as well as a chart (PDF) comparing this year’s version of the bill to last year’s version.

If USA Freedom works as advertised, it would, among other things:

• End all bulk data collection under Section 215
• Prohibit “large scale, indiscriminate collection” like a batch of all records from an entire state or ZIP code
• Make FISA court decisions available to the public
• Require transparency reporting on data collection from the Attorney General and the Director of National Intelligence
• Give tech companies “a range of options for describing how they respond” to orders for data

But USA Freedom is a far cry from ending surveillance. The bill would create a new call detail records program overseen by the FISA court, which means records would still be collected.

The bill would also create a “strictly limited emergency authority” under which the emergency use of Section 215 would still be authorized. The only difference is that the government would be required to destroy the collected information after the fact if a FISA court denies the application.

Ideally, supporters say, the new transparency requirements would make “stretched interpretations” of the justification provisions less likely.

Supporters of the new version include Google, Microsoft, and Yahoo as well as several software and tech industry trade groups and some digital rights advocacy groups. Google and several others also all called for Congress to pass USA Freedom’s 2014 incarnation as well.

However, many rights groups that supported reform in 2014, like the EFF and ACLU, are notably absent from the current support roster. They are instead continuing to push hard for a complete sunset of all the Patriot Act surveillance provisions.

Meanwhile, there are still plenty of questionable surveillance programs this bill won’t touch. And the Senate, working straight to the June 1 deadline, could significantly alter or weaken the proposal

The House Judiciary Committee is set to work over USA Freedom this week, and to try to get a version through the House as quickly as possible so that the Senate can start their turn. If the new legislation does become law, it would renew the three expiring portions of the Patriot Act until December, 2019.

by Kate Cox via Consumerist