UPDATE: A prior version of this story incorrectly noted that the bill revisions included a clause that would require an earlier re-authorization to the PATRIOT Act, when in fact the revisions push that re-authorization date more than two years further into the future.
The House Judiciary Committee has added a variety of new language to a bill that would rein in much of the government’s surveillance operations as permitted under the USA PATRIOT Act. While some of the revisions have received praise, certain phrases repeated throughout the bill have drawn negative attention for their lack of clarity or definition.
First made public in late October of last year, the USA FREEDOM Act was designed to counteract “the dragnet collection of data by the National Security Agency (NSA) and other government agencies, increase transparency of the Foreign Intelligence Surveillance Court (FISC), provide businesses the ability to release information regarding Foreign Intelligence Surveillance Act (FISA) requests, and create an independent constitutional advocate to argue cases before the FISC.”
Some key revisions added in during the mark-up phase include, more stringent rules limiting the powers granted under the Foreign Intelligence Surveillance Act (FISA), operational and structural reforms to the Foreign Intelligence Surveillance Court (FISC), changes to the way the government uses National Security Letters (NSLs), and further FISA transparency reporting requirements.
Lee Tien, a senior staff attorney at the Electric Frontier Foundation, acknowledges that the digital advocacy group is still reviewing the bill but lauds its new language as a powerful approach to curbing the mass collection of phone records.
The EFF is urging the House of Representatives to move forward with further measures designed to reform the current state of government surveillance.
The new FISA guidelines would require that parties seeking access to detailed communication records from businesses demonstrate “there are reasonable grounds to believe that the call detail records sought to be produced” are only to protect against international terrorism or by showing “a reasonable, articulable suspicion” that communications are associated with a foreign power or an agent thereof. Furthermore, there would be no open-ended invitations with the new language. Investigators would be granted access to communications data in 180-day blocks that can be extended under a new application for access. The government will also be required to destroy all collected information within five years of receipt.
These FISA revisions repeatedly refer to “call detail records,’ which include session identifying information, a telephone calling card number, or the time or duration of a call. Such records do not extend to communications content, location data, or customer names, addresses, or financial information.
The pen register trap and trace reforms seek to limit the exposure of U.S. citizens caught up in the surveillance of foreign citizens. In the event that a pen register or trap and trace device is monitoring the communications of a U.S. citizen in order to gather data about a foreign target, law enforcement officials will be barred from sharing or disseminating information that could identify the citizen in question. Outside such devices, the new language more broadly prohibits the retention and dissemination of data where the sender and recipient are determined to be a United States person or located in the United States, except in cases where there is an immediate threat to human life.
Changes to the FREEDOM Act also include the establishment of five individuals as amicus curiae (friends of the court) within the FISC. Those individuals would be called upon to review applications to the court that “present novel or significant interpretation of the law” or for other reasons deemed necessary by the court.
NSL reforms are written into the marked up bill primarily for the purpose of making clear that court applications for NSLs must use “a specific selection term as the basis for a request.”
In fact, the phrase “selection term” shows up again and again without a meaningful definition in the revised version of the FREEDOM Act.
“Nonetheless,” Tien wrote in a statement, “we are deeply concerned about the number of ‘hops’ that the bill would permit, as well as the undefined phrase ‘selection term,’ which may leave the door open to government attempts to take a non-intuitive interpretation of the language.”
Tien noted to Threatpost via email that the intent of the phrase ‘selection term’ may be to require a specific predicate or identifier for a request, but that it is ultimately impossible to tell because the bill fails to define that phrase.
In general, the transparency related revisions will give businesses more leeway to report the total numbers of specific types of requests that are granted, denied, or modified. Also included is a new provision that would establish a permanent select committee tasked with creating an annual report on the orders submitted under each section of the PATRIOT Act, and how many of those orders were accepted, modified, or denied, as well as the number of times one of the amicus curiae are asked to serve in the FISC. All of this information would then be collected, put together, and posted on a publicly available website.
Lastly, the new version includes a sunset provision that would require that the PATRIOT Act be reauthorized in December 2017 rather than June 2015, the original sunset date.
Regarding the bill in its entirety, Tien wrote the following:
“We are also concerned that this bill omits important transparency provisions found in the USA FREEDOM Act, which are necessary to shed light on surveillance abuses. Finally, we strongly believe this bill should do more to address mass surveillance under Section 702 of Foreign Intelligence Surveillance Amendments Act, a section of law used to collect the communications of users worldwide.”
Rep. Jim Sensenbrenner (R-Wisc.), who introduced the bill, also issued the revisions to it and will take part in live committee meeting to discuss those edits tomorrow. It’s likely that many of the unclear elements of the bill will be resolved before the FREEDOM Act ever comes to a vote. Ironically, Sensenbrenner also introduced the very PATRIOT Act that the FREEDOM Act aims to limit.
