Nearly two years to the day after the initial Snowden revelations about top-secret U.S. surveillance programs, the government has passed major surveillance reform into law. Tuesday afternoon, the U.S. Senate passed the House version of the USA FREEDOM Act, and President Barack Obama swiftly signed it into law.
The bill is the first major national security reform in the U.S. since the 9/11 terrorist attacks in 2001.
Shortly after the Senate passed the bill, 67 to 32, on Tuesday afternoon, Obama tweeted:
Glad the Senate finally passed the USA FREEDOM Act. It protects civil liberties and our national security. I'll sign it as soon as I get it.
— President Obama (@POTUS) June 2, 2015
The new law reinstates three surveillance provisions that had been shut down since portions of the USA PATRIOT Act expired Sunday night.
More significantly, the USA FREEDOM Act ends the National Security Agency’s (NSA's) formerly secret interpretation of Section 215 of the USA PATRIOT Act, which gave it carte blanche access to every American's telephone call metadata. The bulk collection of telephony data, notably, was one of the first leaks provided by former government contractor Edward Snowden.
Once the six-month transition period to the new law has ended, government officials wanting telephone metadata must go to the telephone companies with a Foreign Intelligence Surveillance Court (FISC)-issued warrant.
Additionally, the FISC will now include an adversarial process involving a panel of privacy and civil liberties advocates making arguments when the government requests surveillance data. The FISC must also declassify some of its most significant decisions.
In comments provided to The Privacy Advisor, Prof. Peter Swire, CIPP/US, who was among five experts appointed by Obama to review U.S. surveillance and privacy, said, "I applaud passage of the USA FREEDOM Act. Its limits on bulk collection, transparency improvements and role for amicus participation in the FISA court all are consistent with recommendations of the President's Review Group on Intelligence and Communications Technology."
Sen. Patrick Leahy (D-VT), who has helped lead the charge for surveillance reform, called Tuesday’s events an “historic moment,” adding, “We’ll protect the security of the United States, but we’ll also protect the privacy of Americans."
But not all senators agreed. “It does not enhance the privacy protections of American citizens, and it surely compromises American security by taking one more tool from our war fighters, in my view, at exactly the wrong time,” said Senate Majority Leader Mitch McConnell (R-KY), whose attempts to add amendments to the bill failed, thanks partly to a combination of Senate Democrats and Republicans.
Conversely, Sen. Ron Wyden (D-OR), who has been a vocal critic of U.S. surveillance law, said, “This is only beginning … There’s a lot more to do.” He said he wants to harness this momentum to change Section 702 of the Foreign Intelligence Surveillance Act (FISA), another program leaked by Snowden, when it’s up for renewal in 2017. Section 702 allows intelligence agencies to access the content of some Internet communications.
Similarly, the ACLU’s Jameel Jaffer called the law a “milestone” but said it doesn’t do enough to curb U.S. surveillance powers. Likewise, Georgetown Prof. Alvaro Bedoya, a former staffer for Sen. Al Franken (D-MN), wondered whether the new law will prevent future misuses of power. He also questioned whether there is enough in the law to help Congress make informed decisions about surveillance and privacy. “Unfortunately,” he wrote, “there is nothing in the bill to ensure that all members of Congress—and their staffs—have the access they need to fully understand the truths behind the government’s secrets. This is a mistake.”
Snowden also commented on the reforms during a live video-stream with Amnesty International UK, saying the changes—particularly to Section 215—were “not enough,” but adding, “It’s a first step, and it’s an important first step.”
What Awaits the Telcos?
After 10 years of collecting Americans’ phone records in bulk, the government will no longer have the legal right to do so, now putting the onus on telephone companies to maintain customer records and provide access when a warrant is provided. The law, however, does not mandate whether telephone companies must retain metadata. Currently, a Federal Communications Commission rule requires land-line metadata to be retained for 18 months, but that does not include wireless phone metadata.
The Wall Street Journal (WSJ) reports that this “shifts a tremendous amount of national security power to the nation’s large telecommunications firms, particularly AT&T, Inc., and Verizon Communications, Inc.” Industry representatives have said the burden now falls on government officials who are seeking customer records.
Sen. Susan Collins (R-ME) was critical of the new law, saying, “The telecom companies sell our personal data, including our names, our phone numbers, our addresses, to the highest bidder for telemarketing and other purposes, and some of that data ends up in the hands of con artists.”
According to the WSJ report, the White House has said it will notify Congress if telephone companies change their data-retention policies, effectively allowing Congress to revisit the law.
The White House has also not indicated what will happen to the billions of records currently under government control prior to Sunday night's expiration date. Technically, such records could be used during the six-month transition period, the report states.
The U.S., EU and Safe Harbor
The passage of the USA FREEDOM Act could also have international implications, particularly with the EU-U.S. Safe Harbor Agreement. Of the 13 recommendations given by the EU to the U.S. to maintain the vital data-sharing agreement, two hinge on U.S. intelligence-gathering capabilities.
However, U.S. Undersecretary of State for Economic Growth, Energy and the Environment Catherine Novelli said a new data-sharing agreement will come “very, very soon.” At a press event in Brussels, she said, “We are very optimistic that we are going to be able to come to an agreement soon on Safe Harbor.” When asked to clarify her comments, Novelli said it would not take months to reach an agreement.
“It’s very important that we find ways to preserve data flow,” she explained. “Because so much of this is business-to-business and because of the cross-investment, we don’t want to be shooting ourselves in the foot by hampering this economic activity.”
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