FISA: 702 Collection

Who Is Saying What About the Leahy Surveillance Bill

By Jodie Liu
Wednesday, July 30, 2014, 2:00 PM

Below you'll find a compilation of public statements on Senator Patrick Leahy's new and improved USA Freedom Act, which he unveiled yesterday.

Suffice it to say:  the reviews are generally positive, give or take some rather qualified, less committal remarks from the Chairs of the Senate and House Intelligence Committees.

Administration

Ned Price, Spokesman for the President’s National Security Council:

Chairman Leahy has done remarkable work reflecting the equities of intelligence professionals while crafting privacy enhancements, and these efforts have yielded significant progress on issues vital to those stakeholders. [Politico]

Industry

Ed Black, President and CEO of Computer & Communications Industry Association:

The Senate bill is a vast improvement over the final House bill, which was unfortunately watered down. The Senate USA Freedom Act narrows key loopholes on bulk data collection and offers greater transparency, which is essential for citizens in a free democracy. We appreciate the Senate and its staff for listening to those concerned about civil liberties and to the tech industry to make thoughtful improvements so that the bill would address the reforms lawmakers and the public have been demanding.

The House bill was not just a case of the devil in the details, but legislative language reversing the bill’s purpose in the details — whether intentionally or not. We are encouraged that this is a product of hard work between both the Senate Judiciary and Intelligence Committees and the White House.

The House ambiguously defined the “specific selector term” — potentially allowing the very type of bulk surveillance that the law was aimed at preventing. We appreciate those committed to surveillance reform for wading into the details and offering a Senate bill that would deliver real surveillance reforms. There are other areas or related reform that will need to be addressed in the future, but this is a long-awaited step in the right direction. [CCIA]

Reform Government Surveillance, a coalition of tech companies including Google, Facebook, Apple, Microsoft, Yahoo!, Twitter, LinkedIn, AOL, and Dropbox:

This bill will help restore trust in the Internet by ending the government's bulk Internet metadata collection and increasing transparency around U.S. surveillance practices. [National Journal]

Alex Fowler, Global Privacy & Public Policy Lead of Mozilla:

We’re pleased to see the Senate propose limits on mass surveillance but more reform is needed to repair the damage inflicted on Internet users and the Web economy. We hope the Senate will hold firm to the bill’s language and forgo loopholes that would further undermine trust, such as allowing bulk collection through broad ‘selector terms’ that sidestep the problem. [The Guardian]

Brad Smith, Executive Vice President and General Counsel of Microsoft:

I would like to thank Senators Leahy, Lee, Heller and Franken for their efforts to bring meaningful reform to government surveillance. By establishing a panel of advocates to argue before the Foreign Intelligence Surveillance Court and requiring it to issue statements about its decisions, the Senate bill strengthens our privacy rights and civil liberties. We’re also pleased that the bill bans the bulk collection of data and allows companies to be more transparent about requests we receive from the government.” [Microsoft]

Andy Halataei, Senior Vice President of Government Affairs at Information Technology Industry Council:

It’s vital for Congress to pass meaningful surveillance reform in order to restore the public's trust in the technology sector and the U.S. government. Today’s introduction of the USA FREEDOM Act by Sen. Leahy is an important part of moving this process forward. This bill improves bipartisan legislation already passed by the House of Representatives by effectively putting an end to bulk collection and enabling companies to be more transparent about the orders they receive. We urge Congress to act in a bipartisan fashion and swiftly pass the USA FREEDOM Act. Without it, the open and borderless Internet that our innovation economy depends on will be at risk and the tech sector will continue to feel significant economic impacts that directly translate into lost American jobs. [ITIC]

Civil Liberties Groups

Laura W. Murphy, Director of the ACLU Washington Legislative Office:

We commend the Senate Democratic and Republican co-sponsors of this version of the USA Freedom Act, which significantly constrains the out-of-control surveillance authorities exposed by Edward Snowden. While this bill is not perfect, it is the beginning of the real NSA reform that the public has been craving since the Patriot Act became law in 2001. The Senate bill is an improvement over the version passed by the House, but problems remain. It is important that the public understand that there is much more work to be done to narrow the government’s overbroad surveillance authorities to bring them in line with our Constitution and values. This is a marathon, not a sprint, and we have miles left to go. [ACLU]

Elizabeth Goitein, Co-Director of the Liberty and National Security Program at the Brennan Center for Justice:

The bill would take a key step forward by prohibiting bulk collection of Americans’ phone, financial, and credit records. . . . This would be the first significant restriction Congress has placed on intelligence agencies’ ballooning spy apparatus since 9/11.

This version of the bill restores many of the reforms that were stripped from the companion bill as it moved through the House. . . . It’s a much stronger, more privacy-oriented bill than what the House passed two months ago. But it would not be a cure-all. The bulk collection program is the tip of a massive iceberg. Until Congress addresses the collection and use of Americans’ calls and e-mails under authorities that supposedly target foreigners, the privacy of all of our communications is at risk. [Brennan Center]

Nuala O’Connor, President & CEO of the Center for Democracy & Technology:

This new version of the USA FREEDOM Act would be a significant step forward in protecting Americans from unnecessary and intrusive NSA surveillance. . . . This legislation is a major improvement over the version that passed the House in June. The bill would end bulk collection and enact other important reforms, while also providing government with the necessary flexibility to protect national security. We encourage the Senate to pass this bill as is, and the House to quickly follow suit without weakening the bill. [CDT]

Amie Stepanovich, Senior Policy Counsel at Access:

Swift passage of the USA FREEDOM Act is the first step we can take toward shutting down the NSA’s panopticon. . . . The intelligence community has received a blank check to conduct surveillance for far too long, and our elected leaders need to send a clear message that broad and foundationless surveillance is not acceptable.

The surveillance activities that will be reformed under the USA FREEDOM Act represent only the iceberg’s tip of the programs the NSA and its brethren are currently conducting. As we learn more about other authorities that are even broader and less accountable, we will expand our calls for change, including immediate reform of Executive Order 12333. [Access]

OpenTheGovernment.org, in a letter to Congressional leadership undersigned by twenty other privacy and civil liberties groups:

We did not support the version of the USA FREEDOM Act passed by the House of Representatives, in part because the bill’s most important transparency provisions were deleted before it came to the floor. Instead of requiring the Director of National Intelligence (DNI) to provide annual reports or good faith estimates of the number of individuals and U.S. persons whose communications were collected under the Foreign Intelligence Surveillance Act (FISA), the House bill required reports only on the number of ‘orders issued’ under and ‘targets affected’ by various sections of FISA. We feared— and subsequent government and newspaper reports have confirmed—that these statistics would understate the scope of government surveillance by orders of magnitude.

The Senate bill, however, requires the government to report on the total number of individuals or unique accounts—not only the number of ‘targets’—whose information is collected under different surveillance authorities. It also requires a report on the number of those who were likely U.S. persons, or, if that is not technically feasible to determine, the number who were likely located in the United States.

The bill, negotiated during two months with extensive input from the intelligence community, and civil society, is a true compromise and a crucial step in the right direction. The negotiated bill does not, however, fully restore the provisions that the House bill omitted, or take all the steps needed to restore democratic accountability to NSA surveillance.

At the intelligence community’s apparent insistence, there are some loopholes in the reporting requirements. The Director of National Intelligence can avoid providing an estimate on the number of U.S. persons whose communications are collected under section of 702 of FISA by certifying to Congress that such an estimate ‘cannot be determined accurately, including through the use of statistical sampling’ and explaining why he considers an accurate estimate impossible. The bill contains useful new provisions requiring a report on the number of ‘back door searches’ for Americans’ communications under section 215, section 702, and other authorities—but exempts the FBI from this requirement even though the FBI likely conducts more back door searches for Americans’ information than any other agency.

The bill also does not guarantee public access to decisions of the Foreign Intelligence Surveillance Court. It requires a declassification review of significant FISC decisions, but the government can choose to release a summary or redacted version that omits essential information about the court’s ruling. It does not address other forms of secret law, or provide any public information about surveillance conducted under Executive Order 12333, the surveillance authority that a government whistleblower recently said was the greatest threat to Americans’ privacy.

For those reasons, we believe this version of the USA FREEDOM Act is a beginning, not an ending, to the necessary transparency reforms. But if signed into law, it will be the most important step Congress has taken to reform surveillance, and secrecy about surveillance, since the passage of the PATRIOT Act in 2001. We believe that this carefully crafted compromise, unlike the House-passed bill, has the support of transparency and privacy groups and the votes needed to pass both chambers of Congress. [OpenTheGovernment.org]

Lawmakers

Sen. Mark Udall (D-CO) and Sen. Ron Wyden (D-OR), Members of the Senate Select Committee on Intelligence, in a joint statement:

Congress must take aggressive steps to rein in excessive surveillance and end the bulk collection of law-abiding Americans' phone records. Senator Leahy's bill is a vast improvement over the U.S. House of Representatives’ ‘reform’ bill and includes strong language aimed at ending the bulk collection of Americans’ records . . .The bill would also strengthen transparency and make important reforms to the secret Foreign Intelligence Surveillance Court.

While this progress is encouraging, this legislation unfortunately lacks important provisions that reformers have proposed to end the backdoor and warrantless searches of Americans' personal electronic communications under Section 702 of the Foreign Intelligence Surveillance Act. Congress clearly intended this authority to be used to collect the communications of foreigners — not Americans — yet the Director of National Intelligence recently confirmed that the NSA, CIA and FBI conduct warrantless searches of communications of Americans that are swept up under this authority.

Congress needs to close this loophole, and we look forward to working with Chairman Leahy and our colleagues to address this issue when the bill comes before the full U.S. Senate. [Udall; Wyden]

Sen. Dianne Feinstein (D-CA), Chairwoman of the Senate Select Committee on Intelligence:

[Feinstein] said she still has “a couple of issues” with the bill, though she declined to detail them. [Politico]

Rep. Mike Rogers (R-MI), Chairman of the House Select Committee on Intelligence:

“We’ve got a lot of issues to work through on it, so we’ll see,” said House Intelligence Committee Chairman Mike Rogers (R-Mich.) “Certainly, we should be open to all of it, just like they should be open to the House version.” [Politico]

Sen. Martin Heinrich (D-NM), Member of the Senate Select Committee on Intelligence:

“It’s a half a loaf,” [Heinrich] told The Hill. “I just think that it’s probably what we can get done in this Congress and I will continue to fight . . . for what isn’t in this legislation.” [The Hill]

Sen. Ted Cruz (R-TX), Member of the Senate Committee on the Judiciary:

Republicans and Democrats are showing America that the government can respect the privacy rights of law-abiding citizens, while at the same time, giving law enforcement the tools needed to target terrorists. . . . The USA FREEDOM Act of 2014 ends the government’s bulk record collection program and implements other necessary surveillance reforms. Importantly, it also sends a strong signal that a bipartisan coalition in Congress is working to safeguard our privacy rights. I am honored to work with my colleagues on both sides of the aisle toward delivering this bill to the President’s desk for his signature. We need to protect the constitutional rights of every American. [Cruz]