USA Freedoms

Remember back just a short way (last summer) to when post-Snowden reforms (otherwise known as the USA Freedom Act) to our scandal-ridden domestic spying machinery included appointing a civilian's representative to the FISA court.  Here's how that's working.

An independent lawyer assigned to represent Americans’ privacy interests before the nation’s top-secret spy court failed to persuade a judge to block FBI agents from searching intelligence databases to hunt for evidence of traditional crimes rather than restricting them to national security probes, according to a newly declassified court opinion.

  LATimes

Case closed.  I bet that attorney tried really, really hard.

FISA judges have approved the spying effort each time it has been submitted for review since 2008. But Hogan’s 80-page opinion was the first to rely on advice from an outside privacy advocate, known as an amicus curae, to help him determine the legality of the initiative.

The advocate was attorney Amy Jeffress, a former top national security prosecutor at the Justice Department who is now a defense attorney in Washington.

  LA Times

A privacy advocate who was a top national prosecutor at the DOJ. Hmmmm.

It is only the second publicly disclosed instance in which the court has used an outside lawyer to examine an aspect of the government's spying programs.

Last September, the court asked attorney Preston Burton to examine whether the government could retain bulk telephone metadata that it had been told to destroy. Investigators wanted to keep the data for an extra few months so it could ensure the accuracy of information it would attain under the more targeted procedures enacted last year by Congress. Burton agreed that it was permissible to do so.

Keeping Americans free.

...but hey, do what you want...you will anyway.

The "USA Freedom" Act

Exactly two years after journalists Glenn Greenwald and Laura Poitras traveled to Hong Kong to meet an NSA whistleblower named Edward Snowden, Congress has finally brought itself to reform one surveillance program out of the multitude he revealed — a program so blatantly out of line that its end was a foregone conclusion as soon as it was exposed.

The USA Freedom Act passed the House in an overwhelming, bipartisan vote three weeks ago. After hardliner Republicans lost a prolonged game of legislative chicken, the Senate gave its approval Tuesday afternoon as well, by a 67 to 32 margin. The bill officially ends 14 years of unprecedented bulk collection of domestic phone records by the NSA, replacing it with a program that requires the government to make specific requests to the phone companies.

[...]

Its rejection by Congress is hardly a radical act — it simply reasserts the meaning of the word “relevant” (the language of the statute) as distinct from “everything” (how the government interpreted it).

At the same time, the Freedom Act explicitly reauthorizes — or, rather, reinstates, since they technically expired at midnight May 31 — other programs involving the collection of business records that the Bush and Obama administrations claimed were authorized by Section 215 of the Patriot Act. In fact, even the bulk collection of phone records, which was abruptly wound down last week in anticipation of a possible expiration, may wind up again, because the Freedom Act allows it to continue for a six-month transition period.

[...]

It leaves untouched formerly secret programs the NSA says are authorized under section 702 of the FISA Amendments Act, and that while ostensibly targeted at foreigners nonetheless collect vast amounts of American communications. It won’t in any way limit the agency’s mass surveillance of non-American communications.

[...]

Indeed, the Freedom Act represents the single greatest surveillance reform package since the 1970s.

But that’s a low bar.

  Dan Froomkin: The Intercept

[On June 2,] the Senate passed a version of the USA Freedom Act, a bill touted by its authors as surveillance reform that will end the NSA’s mass, suspicionless collection of Americans’ personal data. Given that parts of the Patriot Act expired on June 1st, and that the government is pretending the expiration is a “crisis” rather than an opportunity, President Obama is expected to sign the bill as soon as possible.

While the bill has many significant flaws, the USA Freedom Act vote is also historic: it’s the first time since the 1970s that Congress has indicated its intention to restrict the vast powers of intelligence agencies like the NSA, rather than exponentially expand them. It also shows the power that investigative journalism and brave whistleblowing can have on even the most entrenched government interests. Two years ago, debating these modest changes would’ve been unthinkable, and it is absolutely a vindication for Edward Snowden.

  Freedom of the Press Foundation

Too bad he can’t come home.

He doesn’t need vindication. He did his duty as an American citizen by blowing the whistle on illegal activity.

Thanks Only to Edward Snowden

The U.S. House of Representatives on Wednesday approved a bill that would end spy agencies' bulk collections of Americans' telephone data, setting up a potential showdown with the U.S. Senate over the program that expires on June 1.

As voting continued, the House overwhelmingly backed the USA Freedom Act, which would end the bulk collection program and instead give intelligence agencies access to telephone data and other records only when a court finds there is reasonable suspicion about a link to international terrorism.

  Huffington Post

Of course, just because there's a law against it doesn't mean they won't do it.

The bill's fate is much less certain in the Senate, where many key lawmakers would rather reauthorize the existing bulk data collection program than approve the Freedom Act.

And, there’s that.

...but hey, do what you want...you will anyway.

The USA Freedom Act

Christ. Why can't they just name a bill to indicate what it actually is? Oh, yes, I forgot - this is Congress - we don't really want things to be clear.

While initially proposing much for Americans, if not our friends overseas, to like, the version [of the NSA reform act] that eventually passed the House in May was, at best, utterly neutered. Today’s version, hashed out between Sen. Leahy, Obama Administration officials, and civil liberties proponents, moves the needle much closer to the original version.

Of course, as this USA Freedom Act moves through the Senate, the bill could change. And if it passes the Senate, the House will have to reconcile this version with its own gelded one.

But for now, there are things to like, things to hate, and things remaining to fear in USA Freedom.

  Just Security

Read the article for the breakdown.

...but hey, do what you want...you will anyway.

Typical Government Reform

The Reform Government Surveillance coalition—whose members include Google, Facebook, Microsoft, AOL, Apple, Twitter, LinkedIn, DropBox, and Yahoo—issued a statement Wednesday announcing it was pulling its support of the USA Freedom Act. The legislation would take the storage of phone records out of government hands and keep them with phone companies.

But newly amended language in the bill has "moved in the wrong direction" of true surveillance reforms, the tech companies said.

"The latest draft opens up an unacceptable loophole that could enable the bulk collection of Internet users' data," the coalition said. "While it makes important progress, we cannot support this bill as currently drafted and urge Congress to close this loophole to ensure meaningful reform."

The loophole referred to is the Freedom Act's definition of a "specific selection term," which underwent changes in the newest version of the bill released this week. Earlier drafts, including the one passed two weeks ago by the House Judiciary and Intelligence committees, defined selectors as "a person, account or entity." But the new language—which adds words like "address and "device" and the non-limiting term "such as"—is seen as more broad.

  National Journal

”Such as” is appropriate wording in a law??? That’s not a loophole, that’s freeway access.

Several privacy groups have already revolted against the bill, citing similar concerns with the new language. Harley Geiger, senior counsel with the Center for Democracy & Technology, said the bill would allow for "an unacceptable level of surveillance."

Just like they made Bush’s torture and warrantless wiretapping programs legal after the fact.

The House on Thursday passed the most sweeping changes to the country’s intelligence operations in over a decade, voting to limit the National Security Agency’s ability to snoop on communications. The USA Freedom Act, which passed 303-121, had run into opposition from some of the NSA's biggest critics, who warned that the legislation had been gutted in recent weeks. Fifty-one Republicans and 70 Democrats voted against the bill.

[...]

Now the bill heads to the Senate, where Judiciary Chairman Patrick Leahy (D-Vt.) has pledged to take it up this summer.

Leahy, who authored the Senate version of the bill, and other lawmakers backing reform like Sen. Richard Blumenthal (D-Conn.), Mark Udall (D-Colo.) and Ron Wyden (D-Ore.), have voiced concerns about key measures that were scaled back in the House

[...]

Rep. Justin Amash (R-Mich.), another outspoken civil liberties advocate and original cosponsor, voted no. “This morning's bill maintains and codifies a large-scale, unconstitutional domestic spying program,” he wrote in a post on Facebook.

  The Hill

...but hey, do what you want...you will anyway.

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.

[...]

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.

[...]

[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.

[...]

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

[...]

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.

[...]

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.

[...]

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.

[...]

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