The sun may have set at midnight on Section 215 of the PATRIOT Act, putting a temporary halt to the NSA’s bulk collection of phone call metadata, but privacy champions and legal experts point to May 7 as the day the lights dimmed on that facet of the government’s surveillance efforts.
On that Thursday, the U.S. Court of Appeals for the Second Circuit cut the legs out from under Section 215, calling the government’s bulk collection of phone call data illegal, and shining a spotlight on just how much attitudes among Americans and its lawmakers had reversed.
“I think what this shows is that there was not even close to a consensus among Americans that the government should have been doing bulk domestic collection,” said Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society.
And while this is a victory for those opposed to this type of dragnet surveillance, it is, albeit, closes the books on only three provisions inside of Section 215: the phone metadata, or business records provision; a roving wiretap provision that allows the government to track a suspect believed to be connected to a terrorist group, rather than their phone number; and a lone wolf provision for terror suspects operating independently.
Next up this week is debate on the USA FREEDOM Act, a stand-in for Section 215 which will allow phone business records to remain with the telecommunications carriers and require the FBI to get a Foreign Intelligence Surveillance Court order for specific business records. The bill is expected to pass the Senate this week and be sent to President Obama to be signed into law. Some, however, would like to see the debate period extended and further reforms added to the bill.
The Electronic Frontier Foundation’s Mark Jaycox and Rainey Reitman wrote in April that the first version of USA FREEDOM that failed to move past the Senate in 2014 included stronger reforms over the FISA court, in addition to ending bulk collection. Broader, weaker language in the bill, they said, also leaves a generous scope for records collection, even if the telecoms are holding the data instead of the government. Other changes, they say, weaken the legislation, including a lack of mandates to delete information on individuals unrelated to suspects in an investigation, for example, which Granick said protects innocent people from having illegally collected data used against them in the future.
“This shows that there’s a really serious lack of consensus as to what the government surveils in our name, and what we really want as Americans,” Granick said. “This gives us a platform and an opportunity to have these conversations now that we have the sunset and the 2nd Circuit Court opinion. And yes, the devil is in the details and we have to be careful with what happens next, but now should take this time to have conversations about what kind of information is collected and under what circumstances.”
What the USA FREEDOM Act fails to address is reforms surrounding the FISA Court. As it stands, FISA Court rulings are classified and there are no provisions for reviews of their secret interpretations of laws. Those should be declassified, Granick said. The FISA Court should also be made to adopt an adversarial system within its processes, i.e., bringing in security experts to advise or provide counterarguments on potential rulings.
USA FREEDOM also fails to address Section 702 of the FISA Amendments Act which allows the NSA to collect content from phone calls, emails, chats, browsing history and more, the EFF said. Add to that pile the FBI’s continued calls for backdoor access to devices and sustained suspicions over the integrity of some security technologies, and privacy experts will tell you a bit of work remains.
At 11:59 NSA and GCHQ will shut down their cable taps and stop decrypting HTTPS at massive scale. (J/k something to do with phones.)
— Matthew Green (@matthew_d_green) June 1, 2015
“Many of the problems we are facing today stem from rampant secrecy and lack of oversight,” wrote Jaycox and Reitman. “Surveillance abuses will not be resolved until our broken classification system—which shields matters of public importance from public scrutiny—is fixed.”
In the meantime, privacy champions are reveling in last night’s first steps toward what they hope will be reform, courtesy of the Second Court opinion in conjunction with legislative leadership.
“Two years ago, we were in a different situation than we are now,” Granick said, referring to the early days of the Edward Snowden revelations. “Now is the time to be forward looking.”
