Compliance Management, Privacy

Diluted Freedom Act passes House to privacy advocates’ dismay

The House has passed significantly amended legislation, which was once expected to bring reform to NSA's bulk data collection practices.

On Thursday, the USA Freedom Act gained majority approval in the House via a 303-121 vote, but in a so-called “gutted” state which lacked key privacy provisions, former supporters said.

The move comes after the bill unanimously passed the House Judiciary Committee on May 7, with the aim to prohibit the mass collection of Americans' telephone data under Section 215 of the Patriot Act, parts of the Foreign Intelligence Surveillance Act (FISA) and National Security Letter orders.

In particular, Section 215 of the Patriot Act authorizes the collection of call records, including the date and time of calls and outgoing and incoming phone numbers. While the government says it does not record the content of calls under law, other information, like the duration of the call and the origin of the metadata record, are within the NSA's reach.

Now, groups that long supported the USA Freedom Act – including the Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT), the American Civil Liberties Union (ALCU) and New America Foundation's Open Technology Institute – have rescinded their efforts to help champion the bill.

On Tuesday, EFF activists took their website (in anticipation of the House vote) to call out concerning amendments that “gutted” the USA Freedom Act.  

“In particular, we are concerned with the new definition of ‘specific selection term,' which describes and limits who or what the NSA is allowed to surveil,” the EFF blog post said. “The new definition is incredibly more expansive than previous definitions. Less than a week ago, the definition was simply ‘a term used to uniquely describe a person, entity, or account.' While that definition was imperfect, the new version is far broader.”

Activists later added that, given the “government's history of twisted legal interpretations, this language can't be relied on to protect our freedoms.”

In a Wednesday blog post, Kevin Bankston, the policy director for the Open Technology Institute, addressed other major grievances with the bill, including weakened transparency reporting provisions for private companies dealing with government requests for data.

Of note, the most recent version of the bill also does not take a stance against a contested allowance of FISA, which allows the NSA to scan the contents of communications about surveillance targets (as opposed to just communications that specifically come from or to targets), Bankston wrote. 

On Wednesday, Bankston provided the latest markup of the bill (PDF), which was slated to be presented before lawmakers the following day.

In a turn of events, Sen. Patrick Leahy, D-Vt. – who introduced the bipartisan legislation alongside Jim Sensenbrenner, R-Wisc., last October – even released a statement expressing his disappointment with the bill.

Leahy said that even though the bill did “not include some of the meaningful reforms contained in the original USA Freedom Act,” he would continue to fight for necessary privacy inclusions as the legislation moves forward.

“I will continue to push for these important reforms when the Senate Judiciary Committee considers the USA Freedom Act next month,” Leahy said.

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