Tag Archives: civilliberties

The Day We Fight Back: NSA Reform Bills To End Mass Surveillance and Provide Greater Transparency

Today, February 11, 2014, individuals and groups are participating in “The Day We Fight Back,” a day of action protesting the government’s mass surveillance programs. Revelations about the NSA programs, including the breadth and scope of bulk collection of data conducted under Section 215 of the PATRIOT Act (also known as the “library records provision”) have raised serious concerns regarding curtailment of civil liberties and the compatibility of these programs with the First and Fourth Amendments.

Following revelations about the NSA bulk collection of data, members of Congress have introduced various bills to address concerns regarding privacy and civil liberties. Members of Congress have also cited concerns regarding the lack of public trust resulting from the secrecy of the FISA Court, which involves a non-adversarial proceeding where only the government’s views are heard and the opinions have been kept secret. As Benjamin Franklin stated, “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” Members of Congress have likewise noted that the choice between security and liberty is a false one; civil liberties represent a cornerstone of the very American values Congress’ sought to defend in enacting provisions to enhance national security.

Even prior to these disclosures, the library community expressed reservations regarding legislation granting the government overly broad national security powers and urged necessary reforms to Section 215 and the national security letters (NSLs) program (which allows collection of data and communication without a warrant). These recommendations included, among others, requiring clear connections to a terrorist or spy for a valid order collecting information, greater judicial oversight and review of FISC decisions, prevention of bulk surveillance of categories of persons, rational limits on the scope of NSLs, and promotion of greater transparency.

Reform efforts are currently underway, some addressing changes previously advocated for by the library community. Last week, the House Judiciary Committee held a hearing examining proposed reforms to FISA, and tomorrow the Senate Judiciary will hold a hearing on reforms proposed by the Privacy and Civil Liberties Oversight Board (PCLOB). With Congress prepared to take an active, and likely swift, role in reforming statutes related to intelligence gathering, three bills show promise in better protecting privacy and civil liberties, promoting greater transparency, and restoring the public trust: the USA FREEDOM Act, the Intelligence Oversight and Surveillance Reform Act, and the Ending Secret Law Act/FISA Court in the Sunshine Act of 2013. The USA FREEDOM Act and Intelligence Oversight and Surveillance Reform Act are comprehensive bills, addressing not only transparency, but also the core issues regarding the collection of data.

USA FREEDOM Act

Representative Sensenbrenner (R-WI) and Senator Leahy (D-VT) introduced identical bills known as the USA FREEDOM Act, on October 29, 2013. The House bill, H.R. 3361, initially had seventy-eight bipartisan co-sponsors. As noted by Ranking Member Conyers (D-MI), the bill now has 130 supporters, with an even split between Republicans and Democrats. The Senate bill, S. 1599, now has nineteen bipartisan co-sponsors.

The USA FREEDOM Act would effectively end bulk collection of data currently collected by the NSA. The amendments proposed by the USA FREEDOM Act would permit the government to request only the records of that “pertain to” a “foreign power or an agent of a foreign power,” the records about the activities of such person under investigation, and records of individuals in contact with such person.

The bill would reform the NSLs program, which currently allows the FBI to request communication and other data without a warrant. The bill seeks to harmonize NSLs with the amendments proposed to the Section 215 program and is designed to prevent bulk collection of records.

With respect to the FISA Court, also known as FISC, the bill would create an Office of the Special Advocate, designed to advocate on behalf of interpretations that protect privacy rights and civil liberties and effectively ending the current ex parte proceedings wherein only the government’s view is heard. The Special Advocate would also be permitted to appeal FISC decisions. In addition to providing a voice for the public’s privacy rights, the USA FREEDOM Act would enhance transparency by requiring the government to make regular reports estimating the total number of individuals subject to FISA orders regarding electronic surveillance, pen registers, and business records. The bill would also direct the Attorney General to declassify decisions or summarize FISC decisions of significant interpretation, consistent with national security considerations.

The USA FREEDOM Act would not only promote greater transparency of FISC opinions and orders, but would also allow companies to publicly report the number of FISA orders and national security letters received and the number of users or accounts where information was demanded under such orders. It also places an obligation on the government to publicly report estimates of the total number of individuals and U.S. persons subject to FISA orders or NSLs.

The USA FREEDOM Act introduces a number of meaningful and necessary reforms.. This bill could be further improved, however, if it incorporated key elements of the USA PATRIOT Amendments Act of 2009, a bill that was introduced but never passed. That bill included several other reforms, including the prohibition of the use of Section 215 orders to obtain personally identifiable information about patrons from libraries, greater judicial review of both Section 215 orders and NSLs, and minimization procedures to ensure destruction of information obtained under national security powers once they are no longer relevant to an ongoing investigation.

Intelligence Oversight and Surveillance Reform Act

In September 2013, Senator Wyden (D-OR) introduced the Intelligence Oversight and Surveillance Reform Act. The bill now has thirteen co-sponsors, also with bipartisan support. Both the Intelligence Oversight and Surveillance Reform Act and the USA FREEDOM Act propose comprehensive reform to the surveillance programs. While the bills are not identical, many of the provisions are substantially similar and largely address the same issues, including effective prohibition of bulk collection under Section 215, harmonization of NSLs with the reforms to Section 215, providing special advocates in FISC proceedings, and greater transparency of FISC opinions and program’s collection of data.

Ending Secret Law Act/FISA Court in the Sunshine Act of 2013

Two bills designed to provide greater transparency of FISC orders, opinions and decisions (currently kept secret) were introduced into both the Senate and House. The Senate bill, Ending Secret Law Act, S.1130 was introduced by Senator Merkley (D-OR) and has bipartisan co-sponsorship. A nearly identical bill entitled FISA Court in the Sunshine Act, H.R. 2440, was introduced by Representative Jackson Lee (D-TX) and also has bipartisan support.

The bill would require the Attorney General to disclose each FISC decision and order, unless such opinion or order cannot be declassified without harming national security interests. If declassification is not possible, the Attorney General is directed to disclose a summary of the opinion. If a summary of the opinion is not possible, the Attorney General is required to make a report available to the public on the “status of the internal deliberations and process regarding the declassification.”

The Ending Secret Law Act/FISA Court in the Sunshine Act would provide greater transparency to FISC decisions and orders than the USA FREEDOM Act by requiring disclosure of each decision, order or opinion, not just those involving significant interpretations. Certainly, the reforms proposed by these bills are welcome as they promote greater transparency and enhance public debate surrounding the important intersection of security and civil liberties.

Observations from House Judiciary Committee Hearing on Surveillance and FISA Reforms

On February 4, 2014, the House Judiciary Committee held a hearing on “Examining Recommendations to Reform FISA Authorities.” The written testimony of the six witnesses and the statement of Chairman Goodlatte (R-VA) are available here. Ranking Member Conyers’ (D-MI) opening statement is available here.

The witnesses were divided into two panels. The first panel included James Cole (Department of Justice), Peter Swire (President’s Review Group on Intelligence and Communications Technology), and David Medine (Privacy and Civil Liberties Oversight Board). The second panel included Steven Bradbury (Dechert, LLP), Dean Garfield (Information Technology Industry Council) and David Cole (Georgetown University Law Center). The vast majority of the time and questioning from Members of Congress was spent on the first panel.

The focus of the hearing was on Section 215 of the PATRIOT Act (the section known as the library records provision under which the NSA claimed authority to collect bulk data of telephone records; this provision could also be used to obtain other “business records” including library records). Some questions also covered the Section 702 program, which targets non-U.S. persons. The majority of the Committee members appeared to support reforms to the program, with numerous members pointing to their support for the USA FREEDOM Act. Several members also focused on the need to restore trust amongst the American people.

During opening statements, Chairman Goodlatte noted that President Obama had not articulated how the bulk collection of telephony metadata had thwarted terrorist plots. He also questioned the President’s proposal to transfer the storage of bulk data to private companies, pointing to recent security breaches of Target and Yahoo!.

Ranking Member Conyers called the Section 215 bulk collection program ineffective, inconsistent with American values and inconsistent with the statutory language. He pointed out that Section 215 of the PATRIOT Act is scheduled to sunset on June 1, 2015 and if the bulk collection issue is not addressed, the Government risks losing Section 215 in its entirety. Conyers praised H.R. 3361, the USA FREEDOM Act, which has 130 House Members supporting the bill with an even split between Democrats and Republicans (Senator Leahy introduced an identical bill in the Senate), a point reiterated by several other members of the Judiciary Committee. The bill, among other things, would amend Section 215 to prohibit bulk collection and require showing a nexus between the business records sought and the person targeted.

First Panel

James Cole, Deputy Attorney General at the U.S. Department of Justice (DOJ), statement focused on President Obama’s January 17, 2014 speech laying out proposed reforms, including having third party storage of the bulk data, establishing an independent voice before the FISA courts, and establishing greater transparency. He also argued that the bulk collection of telephony metadata was constitutional and permitted under the PATRIOT Act.

Several members questioned Cole regarding the value of the bulk collection of telephone data and the appropriate metric in assessing its benefits. He repeatedly asserted that the program was useful and that pointing to the number of terrorist plots thwarted was not an appropriate metric in assessing the value of the Section 215 program, though Cole did not provide an alternative metric other than to call the program “helpful.”

Peter Swire of the President’s Review Group (PRG) gave an overview of the makeup of the review group and the scope of their report. He noted that while the Privacy and Civil Liberties Oversight Board had done legal analysis around the statutory language of Section 215 and the First and Fourth Amendments, this analysis was not undertaken by the President’s Review Group.

In response to criticisms regarding the risks of permitting third parties to house the bulk data, particularly in light of security breaches, Swire pointed out that the NSA has had leaks and all databases are at risk. He also noted that telephone companies already collect the data and requiring them to store such data would not create any new harms.

David Medine, Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), gave an overview of the conclusions of the recently issued report on Section 215, noting that PCLOB would be issuing a separate report on Section 702 in the coming months. He pointed to the PCLOB’s majority conclusion that the Section 215 program violated the statutory parameters of the PATRIOT Act, but also raised serious concerns regarding the First and Fourth Amendments. He noted that the benefits of bulk collection were “modest at best” and such benefits were outweighed by the concerns regarding civil liberties and privacy. The Board recommended termination of the Section 215 bulk collection program.

Medine also pointed out that the Administration’s interpretation of Section 215 takes an overly expansive view of the term “relevant.” He noted that Congress intended to put limits on Section 215 when it was created, but that these limits were ignored with an interpretation that “relevant” covered everything.

Representative Sensenbrenner (R-WI) pointed out that he was the principal author of the PATRIOT Act as well as its two reauthorizations (Sensenbrenner also introduced the USA FREEDOM Act into the House) and that the revelations about how Section 215 was being used were a shock, a sentiment later echoed by Representative Lofgren (D-CA). Sensenbrenner asserted that there was no way that the PATRIOT Act, as interpreted by the Administration, would have been approved or reauthorized if debated in Congress and that no fair reading of the Act could support the bulk collection of telephony metadata. When Cole stated that the DOJ had not taken a position on the USA Freedom Act, Sensenbrenner suggested that the DOJ quickly take a position because the Government is faced with a choice between the USA Freedom Act or having no authority when June 1, 2015 comes around and Section 215 expires. These sentiments were echoed by Representative Nadler (D-NY)

Representative Bachus (R-AL) seemed to be one of the few Committee members that did not want to see changes made to the program. He cited a letter by Judge John Bates, which expressed concerns in allowing a public advocate participate in FISA Court hearings.

Representative Lofgren (D-CA) asked what data, other than telephone data, could be collected. She asked whether credit card information or Internet browser cookies could be collected. Cole argued that not everything could be collected, only what was “necessary.”

Both Lofgren and Representative Issa (R-CA) asked whether the telephony metadata of Members of Congress had been collected. Swire said that to his knowledge, nothing had been screened out. Cole agreed that there was no reason to think otherwise, but argued that because the data had been collected into a database did not mean that it had been looked at. Issa also asked whether telephony metadata of the Executive Branch, including the President’s, as well as the records of the numerous embassies in the United States, had also been collected and Cole stated that he believed every phone number’s metadata was included in the database.

Representative Poe (R-TX) asked Cole to name a criminal case that had been filed as a result of the metadata program. Cole stated that there may be one material support case, but argued that the point of the statute was not to pursue criminal cases but to gather foreign intelligence.

Second Panel:

Steven Bradbury, attorney at Dechert, LLP and former head of the Office of Legal Counsel at the DOJ, argued that the NSA programs did not violate any statutory or constitutional laws. He argued that numerous FISA court judges had upheld the programs. He also asserted that all Members of Congress were informed about or had the opportunity to be briefed on the details of the Section 215 and 702 programs during their reauthorizations. He stated that the programs were critically important and argued against any changes, expressing disappointment with President Obama’s proposals to reform the programs.

Dean Garfield, President and CEO of the Information Technology Industry Council, pointed to the impacts that the revelations about bulk collection of data have had on the information and communications technology sector. He stated that the revelations about the programs had eroded trust in U.S. companies and the security of the data they collect. He also warned that forcing localized storage could result in “Balkinization” of the Internet. He advocated for greater transparency and oversight, as well as clarification of what Section 215 permits.

Some members raised concerns about how U.S. companies could be disadvantaged globally as a result of the NSA revelations, a point on which Garfield agreed. He noted that concerns included cost, storage concerns, and the public lack of trust, including the perception that companies are not independent from the U.S. Government.

David Cole, Professor of Constitutional Law and National Security at Georgetown University Law Center, expressed support for the USA FREEDOM Act. He pointed out that because of evolving technology, privacy law must be adapted in light of the increased ease of collecting massive amounts of data. He also argued against defenders of the NSA collection practices by pointing out that the former NSA general counsel had stated that metadata can reveal an enormous amount about a person’s life and with enough metadata, content is unnecessary.

Chairman Goodlatte questioned Bradbury, pointing to concerns about privacy when bulk data is collected. Bradbury responded that there were hypothetical concerns about abuse, but these concerns did not match the reality of the programs. He also pointed out that the Securities and Exchange Commission, Federal Trade Commission and Consumer Financial Protection Bureau also collect massive amounts of data and that the NSA should not be singled out.

Lofgren raised concerns regarding the expectations of privacy in the modern world. In response, Cole stated that the defining question is how to preserve the right to privacy in the face of new technologies and that it was the responsibility of Congress to address these issues. He said that without Congressional action, there is a risk of surrendering privacy to the digital age.

Representative Nadler called the FISA court a “kangaroo court” because of its one-sided and secretive nature. He pointed out that while technology evolves and metadata is collected, people still have an expectation of privacy. Cole then pointed out that the metadata collection programs were the same as issuing a general warrant.