Tag Archives: surveillance

Senator Rand Paul (R-KY) Filibusters USA FREEDOM Act; Future of Section 215 Uncertain

On Wednesday, May 20, 2015, Senator Rand Paul (R-KY) took the Senate floor to filibuster the USA FREEDOM Act.  While the Senate was considering a bill on trade promotion authority or “fast track” legislation, Senator Paul’s filibuster was intended to stall consideration of a vote of the USA FREEDOM Act.  Senate procedural rules mean that the Senate would not be able to take a procedural vote on the USA FREEDOM Act or Senator McConnell’s bill to allow clean reauthorization of Section 215 until at least Saturday, unless there is an agreement to shorten the addition 30 hours of debate permitted.

Senator Paul has been a sharp critic of government surveillance, including under Section 215 of the PATRIOT Act which is also known as the “library records” or “business records” provision.   This provision has been relied upon by the National Security Agency (NSA) to engage in bulk collection of telephone metadata, though the Second Circuit recently ruled that such bulk collection was unlawful under Section 215.  While the USA FREEDOM Act provides for new safeguards, Senator Paul has opposed the extension of Section 215 and other provisions of the PATRIOT Act.  Although he opposes the current text of the USA FREEDOM Act, Paul has announced his intention to offer several amendments to the legislation.

Senator Paul’s filibuster was supported by Senators Daines (R-MT), Lee (R-UT), Heinrich (D-NM), Coons (D-DE), Tester (D-MT), Cantwell (D-WA), Blumenthal (D-CT), Wyden (D-OR) and Manchin (D-WV).

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Image: Word Cloud of Senator Paul’s Filibuster of USA FREEDOM Act, Joseph Hall (CC-BY)

Additionally, while Senator McConnell has now filed motions to proceed on the USA FREEDOM Act and his reauthorization bill, both would still need to clear the hurdle of 60 votes for cloture.  It is not clear whether there are enough votes for either bill.  While there have been suggestions that Congress could pass a very short-term reauthorization — for example, a two-moth reauthorization — to provide time to forge compromise legislation, the House may not be able to consider such legislation before the June 1 sunset.  There is, therefore, a possibility that Section 215 of the PATRIOT Act might sunset, which could greatly change the dynamic of the discussions on surveillance reform.  Should Section 215 sunset, any reform legislation would essentially be seen as granting or reinstating authorization for surveillance under this provision once again rather than simply extending existing authorities, thus changing the political dynamic and potentially creating a basis for stronger reform to protect privacy and civil liberties.

House of Representatives Passes USA FREEDOM Act; Senate To Act Quickly

On Wednesday, May 13, 2015, the U.S. House of Representatives voted in favor of the USA FREEDOM Act, legislation that bans bulk collection under Section 215 of the USA PATRIOT Act as well as other authorities, such as the Foreign Intelligence Surveillance Act (FISA) pen/trap statute and national security letters (NSL) by an overwhelming majority of 338 to 88. ARL is pleased that the House of Representatives has passed stronger reform than its 2014 version and considers this development a step forward in surveillance reform.

Since 2006, the National Security Agency (NSA) has engaged in the practice of bulk collection of phone records under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision. The 2015 USA FREEDOM Act, backed by the White House, specifically addresses this issue and prohibits bulk collection, only permitting limited surveillance orders that focus on a specific selection term. The Court of Appeals for the Second Circuit also addressed this issue recently, ruling that the NSA’s practice of bulk collection exceeded the authority under Section 215 and therefore unlawful.

The 2015 version of the USA FREEDOM Act passed by the U.S. House of Representatives also includes several amendments to the Foreign Intelligence Surveillance Court (FISC) and transparency measures, representing an improvement over the version passed during the last Congress. The bill will now go to the Senate and must be considered quickly, given the upcoming expiration date of certain provisions of the PATRIOT Act, including Section 215.

While the version passed today by the House of Representatives includes better reforms to surveillance practices than in the 2014 bill, the USA FREEDOM Act is just one step forward in a series of necessary reforms. The Court of Appeals for the Second Circuit’s recent unanimous decision that the NSA’s bulk collection practices exceeded the scope of authority granted under Section 215 demonstrates the egregiousness of the NSA’s interpretation of its authority and the willingness of FISC to approve such broad application of the law. Congress should take care to ensure that provisions under USA FREEDOM Act are not similarly interpreted in an overly-broad manner by the NSA to infringe on the privacy rights of those in the United States. ARL looks forward to continuing to work with Congress to ensure that privacy rights are respected and hopes that additional reforms will be made.

ARL Joins Coalition Letters Supporting USA FREEDOM Act, Opposing Clean Reauthorization of “Library Records” Provision

On May 6, 2015, ARL joined two broad coalition letters to the leadership of the U.S. Senate and House of Representatives, one supporting the USA FREEDOM Act while the other opposes straight reauthorization of Section 215 of the PATRIOT Act.

On April 28, the USA FREEDOM Act (S.1123, H.R. 2048) was re-introduced in the Senate and House.  ARL joined a letter with 26 other groups to express support for the USA FREEDOM Act because it “enhances privacy rights, transparency, and accountability.”  ARL supports swift passage of this bill because it would provide meaningful reform of current NSA surveillance practices, particularly the bulk collection of data taking place under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision.  The letter notes that while this version of the USA FREEDOM Act “is not as comprehensive or protective of civil liberties as we would prefer . . . we believe the bill would significantly improve the status quo.  We urge Congress to consider USA FREEDOM to be but one step towards reform. . .”  Section 215 is set to expire on June 1st, 2015.  CDT has a great comparison chart of the 2014 version of the USA FREEDOM Act that passed the House, the 2014 version that fell just two votes shy of cloture in the Senate, and the 2015 version.

ARL also joined a letter opposing “straight reauthorization” of Section 215.  Senator McConnell proposed reauthorization through 2020 which provides no amendments to this provision that has been used by the NSA for bulk collection of telephone records.  The letter, signed by 52 diverse groups, points out that “bulk surveillance programs raise serious constitutional concerns, erode global confidence in the security of digital products, and are unnecessary for national security.”  Additionally, the letter points out that “In the absence of meaningful reform, it is unacceptable to rubber stamp reauthorization of any authority that the government has used to spy on millions of innocent Americans.”

USA FREEDOM Act Reintroduced in House and Senate; ARL Urges Swift Passage

On April 28, 2015, members of the U.S. House of Representatives and Senate introduced new versions of the USA FREEDOM Act. This legislation would put an end to the current bulk collection practices of the National Security Agency (NSA) taking place under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision. ARL supports meaningful and effective surveillance reform, such as that provided by the USA FREEDOM Act of 2015.

Section 215 is currently set to sunset on June 1, 2015. However, Senator McConnell (R-KY) introduced a bill last week that would reauthorize Section 215 through 2020 with no amendments to protect privacy or limit bulk collection of data. Bipartisan efforts have been underway to promote meaningful reform to Section 215 and other provisions of the USA PATRIOT Act that impact civil liberties.

The current version of the USA FREEDOM Act represents a better version of the bill that passed the U.S. House of Representatives in the last Congress. In May 2014, the House of Representatives passed a bill that had been severely watered down twice and resulted in many co-sponsors, as well as civil society organizations and associations including ARL, withdrawing their support for the bill. The Senate version of USA FREEDOM Act in the last Congress represented meaningful reform and would have advanced further transparency measures, but fell two votes shy of the necessary 60 votes for cloture. The current version of the USA FREEDOM Act is essentially a compromise between the House and Senate versions from the last Congress.

ARL supports this version of the USA FREEDOM Act because it would effectively end bulk collection of records under Section 215 and other authorities. It also provides some measure of transparency, providing for government reporting and declassification or summaries of FISA Court decisions. While the current version could go further in protecting civil liberties, as the 2014 Senate version did, the current USA FREEDOM Act still represents effective and meaningful reform and is highly improved from the version that passed the House of Representatives last year. ARL urges Congress to move swiftly to pass the USA FREEDOM Act of 2015, restore privacy and civil liberties, and ensure that bulk collections are no longer permitted.

ARL Opposes Senator McConnell’s Bill to Reauthorize Section 215 “Library Records” Provision

On April 21, 2015, Senate Majority Leader Mitch McConnell (R-KY) and Senate Select Intelligence Committee Chairman Richard Burr introduced S.1035, a bill that would extend Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision, through 2020. The bill would not make any reforms to Section 215 and is a pure reauthorization of this provision that is set to expire on June 1, 2015.

Section 215 has been used by the National Security Agency (NSA) to conduct mass surveillance, including the bulk collection of phone records. ARL, as well as many other organizations, have urged Congress and the Administration to pass reform that protects privacy and civil liberties. Minimum components to meaningful surveillance reform require ending bulk collection practices.

The upcoming expiration of Section 215 provides the opportunity to address the serious infringement on civil liberties caused by mass surveillance. Rather than endorsing and extending these practices for another five years, Congress should end bulk collection of records.

ARL Joins Letters to House and Senate Expressing Concerns Over Cybersecurity Bills

On April 20, 2015, ARL joined a coalition of 36 privacy and civil liberties organizations and 19 security experts and academics raising concerns regarding the Protecting Cyber Networks Act (PCNA, H.R. 1560) and the Cybersecurity Information Sharing Act of 2015 (CISA, S.754).  The letters urge members of Congress to oppose these bills because the proposed legislation, “threatens privacy and civil liberties, and would undermine cybersecurity, rather than enhance it.”

With respect to PCNA, the letter raises the following concerns that the legislation:

  • Authorizes companies to significantly expand monitoring of their users’ online activities and permits sharing of vaguely defined “cyber threat indicators” without adequate privacy protections prior to sharing.
  • Requires federal entities to automatically disseminate to the NSA all cyber threat indicators received, including personal information about individuals.
  • Authorizes overbroad law enforcement that goes far outside the scope of cybersecurity
  • Authorizes companies to deploy invasive countermeasures or “defensive measures.”

The CISA letter raises the same four concerns above, but also raises additional issues that the legislation:

  • Permits companies to share cyber threat indicators, which may include information about innocent individuals, directly with the NSA.
  • Authorizes companies to deploy countermeasures or “defensive measures” that could damage data and computer systems of innocent third parties who did not perpetrate the threat.  The CISA bill would potentially cause greater harm than PCNA with respect to this point because it specifically authorizes “negligent use of defensive measures that could cause significant, though not substantial harm to a third party’s information system.”

 

ARL Joins Broad Coalition Calling for Surveillance Reform

On Wednesday, March 25, 2015, ARL joined a coalition of 47 advocacy groups, technology companies and trade associations in sending a letter to President Obama, Director of National Intelligence James Clapper, Attorney General Eric Holder, Director of National Security Admiral Michael Rogers, and Congressional leadership advocating for significant surveillance reform. Key portions of the PATRIOT Act, including Section 215 (known as the “business records” or “library records” provisions), which has been used as the basis for bulk collection of records, are set to sunset on June 1, 2015.

While these groups hold differing opinions on the best and most appropriate reforms, all came together in agreement that reform must include: 1) Ending bulk collection under Section 215 provision, as well as under Section 214, the provision governing pen registers and trap and trace deices; and 2) Transparency and accountability measures for government and company reporting as well as declassifications of Foreign Intelligence Surveillance Act (FISA) court decisions.

These elements are minimum components to a surveillance reform package. The letter concludes, “It has been nearly two years since the first news stories revealed the scope of the United States’ surveillance and bulk collection activities. Now is the time to take on meaningful legislative privacy, transparency, and accountability.”

Given the quickly approaching June 1 deadline, Congress must move swiftly to pass surveillance reform.   Last November, the U.S. Senate failed to advance the USA FREEDOM Act, falling two votes shy of the necessary 60 votes for cloture, which would have provided meaningful reform to current NSA practices. The Senate version of the USA FREEDOM Act, introduced by Senator Leahy (D-VT) would have ended the current practice of bulk collection of phone records, would have made meaningful reforms to the FISA Court, and included enhanced transparency. ARL urges Congress to act now and pass meaningful reforms, such as those proposed by Senator Leahy’s bill.

ARL Joins 47 Civil Society Organizations and Security Experts Opposing Cybersecurity Information Sharing Act of 2015 (CISA)

On March 2, 2015, ARL joined a coalition of civil society organizations, security experts and academics in sending a letter to Senate Select Committee on Intelligence Chairman Richard Burr and Vice Chairman Dianne Feinstein explaining how the Cybersecurity Information Sharing Act of 2015 (CISA) would undermine privacy and civil liberties.  The letter urges the rejection of CISA in its current form.

The letter notes particular concerns with respect to the following:

  • Automatic NSA access to personal information shared with a governmental entity;
  • Inadequate protections prior to sharing;
  • Dangerous authorization for countermeasures; and
  • Overbroad authorization for law enforcement use

The full text of the letter is available here.

USA FREEDOM Act Fails to Advance in Senate

Cross-posted from ARL News

ARL is disappointed that the US Senate failed to advance the USA FREEDOM Act (S. 2685), a bill that would have provided meaningful reform to current National Security Agency (NSA) surveillance practices and protect civil liberties. A November 18, 2014, evening vote on Senate Majority Leader Harry Reid’s (D-NV) cloture motion to proceed with the USA FREEDOM Act fell two votes shy of the necessary 60 votes.

The USA FREEDOM Act, reintroduced by Senate Judiciary Committee Chair Patrick Leahy (D-VT) in July, would have ended the current practice of bulk collection of phone records and prevented bulk collection of other records under Section 215 of the USA PATRIOT Act, also known as the “library records” or “business records” provision. Additionally, S. 2685 included several reforms to the Foreign Intelligence Surveillance Court (FISC), such as requiring unclassified summaries of FISC opinions with information necessary to understand the impact on civil liberties and creating a Special Advocate position charged with protecting privacy and civil liberties. Leahy’s bill also included enhanced transparency provisions.

The USA FREEDOM Act had broad support of advocacy groups and technology companies. The bill also gained support from key individuals, including President Obama, Director of National Intelligence James Clapper, and Senate Intelligence Committee Chair Dianne Feinstein (D-CA).

Section 215 of the PATRIOT Act will expire in June 2015 unless the US Congress votes to reauthorize the provision, and a continued fight over this provision is expected. Last year, revelations about the NSA program, including the breadth and scope of bulk collection of data, raised serious concerns regarding curtailment of civil liberties and the compatibility of these programs with the Fourth Amendment to the US Constitution. Even prior to these disclosures, the library community expressed reservations regarding overly broad national security powers and has repeatedly urged for necessary reforms.

While ARL is disappointed that the US Senate failed to address the serious civil liberties concerns raised by NSA surveillance practices and bring the USA FREEDOM Act to a vote, the Association remains hopeful that meaningful reform can still be achieved as the fight over bulk collection of records continues. ARL is grateful to Chairman Leahy for his leadership on NSA reform and looks forward to continuing to work with his and other offices on these important civil liberty issues in the future.

Senate to Vote on Future of USA FREEDOM Act

Today, November 18, 2014, the U.S. Senate is expected to vote on a cloture motion by Majority Leader Harry Reid (D-NV) on the USA FREEDOM Act (S.2685), determining whether the Senate will move forward with a vote on this important piece of legislation. The motion needs sixty votes to proceed to the floor. Senator Leahy (D-VT) re-introduced a new version of the USA FREEDOM Act on July 29, 2014, which includes significant improvements over the version passed in the House (H.R. 3361) in May. Leahy’s bill, which has bipartisan support, provides for meaningful reform and protects civil liberties.

Leahy’s bill would end the current practice of bulk collection of phone records and prevent bulk collection of other records under Section 215 of the PATRIOT Act, also known as the “library records” or “business records” provision. It would also make several reforms to the FISA Court, such as requiring that unclassified summaries of FISC opinions include information necessary to understand the impact on civil liberties and create a Special Advocate position charged with protecting privacy and civil liberties. Leahy’s version of the USA FREEDOM Act also includes enhanced transparency provisions.

ARL, along with a broad coalition of advocacy groups, supports this bill and has called for swift passage of this new version, without any dilution or amendment. The White House has now endorsed the bill, as well.

Senator Leahy’s USA FREEDOM Act represents a significant step forward in reforming NSA surveillance practices. ARL urges the Senate to move forward on the USA FREEDOM Act and pass the bill in its current form.