On May 7, the Second Circuit Court of Appeals ruled that the NSA's bulk collection of phone records was illegal, putting Congress in a difficult position. However, legislation in Congress may dilute attempts to reform surveillance practices.
The USA Freedom Act was once hailed by privacy advocates as a step toward reining in the controversial practices leaked to the public by former NSA contractor Edward Snowden. Various versions of the bill have been introduced in the House of Representatives, but have been criticized by reformers for being watered down.
The latest version of the USA Freedom Act passed the House last week 338-88. The bill purports to end the government's bulk collection of phone records and other data and requires the NSA to use terms that specifically search for relevant records.
However, as independent journalist Marcy Wheeler wrote last week, the "Specific Selection Term [SST] has not been changed to require the government to more narrowly target its searches." She continued that the bill's language will be biased toward the government rather than the privacy of the individuals involved because it:
"...still subjects the narrowness of the SST to a 'greatest extent reasonably practicable' standard, which in the past we've seen amount to prioritization of the practicability of spying over privacy interests."
At the UK Guardian, journalist and lawyer Trevor Timm writes that the language in the bill is simply too ambiguous:
"The problem with the USA Freedom Act is also a confusing conglomeration of vague clauses and definitions that some lawyers think could allow the NSA to twist and warp in secret to allow them to continue to abuse the privacy of the American people. Given the courts have already gutted the NSA's convoluted legal arguments, Congress now needs to go much further and remove any doubt from USA Freedom's language."
Julian Sanchez of the Cato Institute expressed his general pleasure with the bill, but regretted that there was not a measure for "super minimization." According to the Electronic Frontier Foundation, these are "clearly mandated procedures to delete any information unrelated to the target of the investigation."
The White House supports this version of the USA Freedom Act, saying in The Hill that if the bill is not taken up by the Senate, "they will be weakening our nation's security."
The Senate defeated its version of the bill in 2014, 58-42. Although all but one of the dissenters were Republican, conservatives such as Sens. Ted Cruz (R-Texas) and Mike Lee (R-Utah) have voiced support for the current bill. Lee, for instance, called the act, "a compromise, an important compromise that will enable us to protect Americans' privacy while giving the government the tools it needs to keep us safe."
As the bill proceeds to the upper chamber, eyes will likely be watching Rand Paul, a 2016 presidential candidate who voted against the USA Freedom Act last year. Over the weekend, Paul indicated he could oppose an effort such as the USA Freedom Act when he said, "I don't want to replace with another system."
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