Compromised

Six months after it was written to restrain the National Security Agency’s sweeping domestic surveillance, a privacy bill cleared a major legislative obstacle on Wednesday, even as its advocates worried that the compromises made to advance the bill have weakened its constraints on mass data collection.

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Supporters in and outside of Congress concede the latest compromises have left the USA Freedom Act less protective of civil liberties than it was when introduced in October. Its distinctions from a rival bill written by the leaders of the House intelligence committee, the NSA’s strongest Capitol Hill advocates, are somewhat blurred, prompting civil libertarians to become less enthusiastic of a measure they have championed as a fix to the broad NSA powers exposed by whistleblower Edward Snowden.

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[T]he revised USA Freedom Act permits the government to get phone data two “hops,” or degrees of separation, from the target of the order, which can mean millions of call records reaped from a single court order. The legal standard for that order, for counterterrorism purposes, will be “reasonable articulable suspicion” of connection to an agent of a foreign power, the NSA’s desired framework.

Significantly, the new version of the USA Freedom Act all but stripped out a provision preventing the NSA from combing through its foreign communications dragnets for Americans’ information, something Senator Ron Wyden of Oregon dubbed the “backdoor search provision,” an absence that has deeply upset supporters.

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Section 215 of the Patriot Act is the provision cited by the NSA and blessed by the secret Fisa Court for bulk data collection.

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As amended, the USA Freedom Act would push back the expiration of Section 215 to the end of 2017, when Section 702 is set to expire. The current expiration is 1 June of next year. Some legislators are already whispering that allowing Section 215 to expire wholesale in 2015 is a preferable reform.

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Patrick Leahy, the Vermont Democrat who sponsored the USA Freedom Act in the Senate, hailed the committee vote, but said he was concerned that the text does not reform the Federal Bureau of Investigation’s national-security letters and makes insufficient changes on transparency and to the Fisa Court.

“I will continue to push for those reforms when the Senate Judiciary Committee considers the USA Freedom Act this summer,” Leahy said in a statement.

  Guardian

The original version would have banned all bulk collection by the government, the new version still allows the government to request records up to two degrees away from the target of an inquiry as long as they get the approval of a judge on the secret Foreign Intelligence Surveillance Court. The earlier version would also have barred the NSA from gaining access to the content of Americans’ communications if collected while the agency is targeting sources believed to be abroad, dubbed “backdoor searches” by critics. The ACLU sent a letter to the judiciary committee leadership Wednesday that laid out ongoing concerns with the new version of the bill, including worries about how long the government is allowed to keep data after it obtains it. A series of amendments put forward by California Democrat Zoe Lofgren during the markup illustrated just how far the bill had moved from the original version. Lofgren proposed an amendment that would have barred “backdoor searches” that was easily voted down, with legislators indicating that any changes would alter the delicate compromise that had been reached. Sensenbrenner, referring to Lofgren’s proposal to ban backdoor searches, said the bill was on “the fast track,” and Lofgren’s amendment would “blow up” the bill’s chances of passage. Lofgren also proposed an amendment that would have raised the standard for requesting records from the “reasonable articulable suspicion” to probable cause, the same standard required for obtaining a warrant.

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That amendment was not only voted down – Lofgren’s colleagues began to lecture her on legal precedent regarding the reduced standard for third-party records. Ironically, that argument figured heavily in the Obama administration’s defense of the very metadata collection program the new legislation is designed to end.

New York Democratic Rep. Jerrold Nadler, one of the authors of the compromise, agreed with Lofgren that more protections for third-party records was needed but that her proposal was “not right” for the moment because of the need to preserve the agreement on the new legislation.

The committee did restore language proposed by Washington Democratic Rep. Suzan DelBene, which made it easier for private companies to disclose details about government requests for data.

Senator Leahy, who chairs the Senate judiciary committee, said in a statement following the vote that he would seek to restore some of the provisions in the original proposal he authored with Sensenbrenner.

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As it stands, the new, less sweeping version of the USA Freedom Act is now much closer to a rival proposal put together by the House intelligence committee.

  MSNBC