US: Modest Step by Congress on NSA Reform

The US House Judiciary Committee took a long overdue step on May 7, 2014, with its move to reform one aspect of the government’s mass surveillance programs, Human Rights Watch said. The committee approved unanimously a revised version of the USA Freedom Act that would aim to end the government’s bulk collection of telephone metadata and other records in the United States.

Ending bulk metadata and records collection is a critical component of the reforms needed to rein in the US government’s mass surveillance programs, Human Rights Watch said.

“The USA Freedom Act revision would help end one of the most problematic programs Edward Snowden revealed last year,” said Cynthia Wong, senior Internet researcher at Human Rights Watch. “However, the bill does not address needed reforms to surveillance programs that affect millions of people outside US borders.”

The compromise bill aims to prohibit bulk collection of records by the government, including phone and internet metadata, under several existing laws. These changes address key reforms that many nongovernmental organizations, including Human Rights Watch, have urged.

However, several proposed reforms that were also much needed from the prior version of the USA Freedom Act have been removed or weakened. For example, there is no longer a provision that creates a special advocate to argue the public’s interest in the secret Foreign Intelligence Surveillance Act (FISA) court. The amended version also fails to incorporate another provision from the original draft, which removed a requirement that a judge considering a challenge to a gag order must treat government claims that disclosure would harm national security as conclusive.

On May 8th, the House Permanent Select Committee on Intelligence was expected to review the USA Freedom Act, as well as its own bill. Although many important reforms remain outstanding, the intelligence committee should pass the amended USA Freedom Act without further weakening it, and Congress should move swiftly to advance the proposal, Human Rights Watch said.

The compromise version of the bill incorporates many of the proposals put forward this year by President Barack Obama. It intends to prohibit the type of sweeping collection of records that has been authorized in the past by requiring agencies to at least designate “specific selection terms” as the basis for a request. This requirement is intended to prevent collection of all phone records, as well as other kinds of business records, under Section 215 of the Patriot Act and other relevant laws. The effectiveness of this requirement will depend on how this term is interpreted in practice.

The bill also creates new government reporting requirements, allows companies to report limited information about the orders they receive, provides a mechanism for emergency requests, and establishes a panel of experts that the FISA court may ask to intervene in specific cases.

But the bill would do little to increase protections for the right to privacy for people outside the US, a key problem that plagues US surveillance activities. Nor would the bill address mass surveillance or bulk collection practices that may be occurring under other laws or regulations, such as Section 702 of the FISA Amendments Act or Executive Order 12333. These practices affect many more people and include the collection of the actual content of internet communications and phone calls, not just metadata.

“Without deeper reform, the US risks helping to create a world in which nobody can feel safe communicating online,” Wong said. “It’s time for Congress to correct course, not only by quickly approving this bill but also by promptly bringing about deeper reforms to NSA surveillance.”