Sen. Patrick Leahy (D-VT) and Rep. Jim Sensenbrenner (R-WI), one of the original authors of the USA PATRIOT Act, jointly introduced an NSA reform bill on October 29. Rep. Sensenbrenner has clearly not lost any of his love of elaborate nationalistic acronyms in the intervening years, and named his bill the ‘Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and On-line Monitoring Act”, or “USA FREEDOM ACT”. For once, the content of a bill proposed in Congress may actually bear some relation to its title, in that it appears to be a sincere effort to rein in several of the worst abuses at the NSA.
However, what has not been clear in the reporting on the Act is the specifics of what the Act actually does. A quick look at the original text shows why. As one activist lamented, “Unfortunately, the text is exceptionally hard to read … It would be much easier to read if the full text was collated with the current statutes.” Indeed it would. Luckily, Digital Fourth is on hand to provide a more detailed guide to its (very densely written) contents than is presently available.
For those who want a high-level summary of the bill, the ACLU has provided one here. What follows is a low-level, section-by-section summary of how the bill changes current law. We welcome updates and corrections as we go forward.
Title I, Section 101(a): Nondisclosure Orders
This section tries to deal with an ongoing issue, where the NSA has refused to disclose to people surveilled by its programs that they were under surveillance. Without that disclosure, it’s impossible for anyone to sue to challenge the constitutional validity of the surveillance program. The Supreme Court’s 5-4 ruling for the government in Amnesty v. Clapper, that the plaintiffs did not have standing to sue, rested on a representation by Solicitor-General David Verrilli that the government would have disclosed the fact of surveillance to the plaintiffs if they were in fact being surveilled. Verrilli found out that in fact no target under the NSA’s mass surveillance programs had ever been informed of their surveillance. Furious at having been placed in a position where he lied in front of the Supreme Court, Verrilli fought within the administration to ensure that such surveillance would be disclosed in future cases. The first such disclosure has just occurred. These provisions codify a fairly weak procedure that would make it harder for the NSA routinely not to disclose the fact of surveillance to surveillance targets.
Title I, Section 101(a)(1)
Requires applicants for an order requiring the seizure of “tangible things” under the PATRIOT Act, if they want the order to not be disclosed to its target, to explain why disclosure would pose a danger.
Title I, Section 101(a)(2)
Requires applicants to actually use `minimization procedures’, which would typically strip out of the intercepted “things” material that belongs to U. S. persons, but sets no penalties for not using them.
Title I, Section 101(a)(3)
Explicitly permits targets of such orders to disclose the existence of the order to their attorney, to whoever is necessary in order to comply with the order, and to other people by permission of the FBI Director or their designee.
Title I, Section 101(a)(4)
Explicitly permits, but does not require, a judge to evaluate the applicant’s compliance with minimization procedures; extends minimization to cover data acquisition as well as retention.
Title I, Section 101(b): Who Gets To Say When You Can Disclose?
Removes the requirement of such a judge to abide by the assessment of executive-branch officials that disclosure would harm national security; must exercise their own independent judgement. The presumption is that a nondisclosure order would expire unless an affirmative case is made that it would harm national security. The actual language is that it would expire unless it “endanger[s] the life or physical safety of any person; [or would encourage] flight from investigation or prosecution; destruction of or tampering with evidence; intimidation of potential witnesses; interference with diplomatic relations; alerting a target, an associate of a target, or the foreign power of which the target is an agent, of the interest of the Government in the target; or otherwise seriously endangering the national security of the United States; and that the nondisclosure requirement is narrowly tailored to address the specific harm identified”; so, basically, any harm is allowed, and the only change comes in who gets to decide that the nondisclosure is narrowly tailored to prevent the harm.
Title I, Section 101(c): Emergency Access to Phone Metadata
This section creates procedures allowing the Attorney-General to require of telecommunications providers the production of phone metadata for a maximum of seven days in cases where they do not have time to get an order through the regular channel dealt with in the prior sections. What this section appears to do is to eliminate the ongoing mass surveillance of phone metadata uncovered by Edward Snowden’s disclosure of the Top Secret FISC order to Verizon (and presumably to all major phone companies) requiring ongoing, renewable, total disclosure of all phone metadata for all calls in the United States.
Title I, Section 102: Inspector-General Reports on FISC Orders
This section reauthorizes the Inspector-General to audit the orders of the Foreign Intelligence Surveillance Court for the period 2010-2013, an authority that apparently expired in 2006. It also introduces for the first time an audit of compliance with minimization procedures, and of the overall importance of the information gained by NSA mass surveillance programs. These reports must be sent to the House and Senate Judiciary and Intelligence Committees. I can’t help wondering what is being left undisclosed that happened in 2007-2009. A political observation here is that this bill, originating as it does with the Chairs of the Judiciary Committees, seeks to ensure that the intelligence community is accountable to Judiciary as well as to the Intelligence Committees in both Houses. The present chairs of the Intelligence Committees have acted chiefly to cheerlead for the value of NSA mass surveillance, and to work to prevent disclosure of NSA activities even to other committee members.
Out of time for today; I’ll continue this analysis tomorrow, and link back as I go. Feel free to start the discussion on these provisions in the comments. If you’re finding it valuable, please donate to Digital Fourth here!