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The USA FREEDOM Act -- a limited version of phone call metadata seizures -- will now take effect, for better or worse

Over the weekend after nearly a decade and a half of rancor, America's infamous carte blanche surveillance bill expired.  And while the 2001 USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act) had lapsed the debate was just heating up about what comes next.

In a 67-32 vote the U.S. Senate wrote the next chapter in what is to follow, passing the so-called USA FREEDOM Act (H.R. 2048).  (The full title is a mouthful: "Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015".)  Proponents say it will bring an end to mass surveillance.  But critics argue this freedom isn't so free.

I. An Act vs. The Constitution

While there's virtually no hard evidence that the PATRIOT Act blocked terrorism, its proponents have been vocal in noisily suggesting otherwise.  That noise in part pushed Congress to restore the controversial domestic surveillance in some form.

The key question was whether the PATRIOT Act could truly be reworked in such a way that it no longer encourages mass warrants and sweeping searches of millions of Americans' digital records, searches which federal courts have deemed unconstitutional on numerous occasions.

Hands off my metadata
Americans have expressed growing outrage at Orwellian programs of sweeping federal surveillance.
[Image Source: Getty Images]

Today the Senate voted 83-14 in favor of cloture, just days after a similar cloture vote failed by a 45-54 margin.  Cloture -- forcing of a vote -- was used to end Senator Randal Howard "Rand" Paul (R-Kentucky) spirited filibuster, which he had employed to successfully block the vote for nearly a week

Once moved to the floor to bill passed after in roughly 6 hours on Tuesday. As the House already approved it, and as no amendments were added in the U.S. Senate, the bill now goes to the desk of President Barack Hussein Obama II (D) who vowed to promptly sign it. The passage is sure to provoke lively controversy about how the bill measures up to the PATRIOT Act and what it will mean for the civil rights of Americans.

in scope the bill primarily covers one specific part of the PATRIOT Act -- provisions relating to the collection of call metadata.  The PATRIOT Act had installed such collection authorizations with Section 215 (50 U.S.C. § 1861) of the U.S. Code of Law.  In its original form, this section effectively nullify traditional due process and allowed special federal surveillance courts to issue bench warrants covering millions of law-abiding Americans.

EFF fight back

 

Critics and proponents alike agree that on paper the USA FREEDOM Act does substantially recraft Section 215.  Debate revolves on whether it still goes too far and whether it's worth the cost to taxpayers.

To limit its damage to due process the bill explicitly constrains the scope of federal agents' call metadata searches such that they target only specific individuals or small groups of individuals interacting with a specific suspect.  This constraint will ostensibly act to drastically narrow the scope of America's state surveillance programs.

That's a major shift.  Previously, poor codification of how broad searches could be empowered spy agencies such as the U.S. National Security Agency (NSA) to carry out campaigns of  "data dominance" against Americans.  These programs targeted millions of citizens with intrusive searches, that even federal auditors admit frequent broke the law.

The USA FREEDOM Act will not do that -- not directly at least.

Metadata
[Image Source: The Verge]

However, while it limits the scope of data inspection, it effectively only modifies the premise of ubiquitous collection.  Under the Act, the government would cease its direct collection and storing of call metadata.  Instead it would pay/force telecoms to a six month history on caller metadata, which federal agents could access via records requests related to a specific search term.  In that sense, the measure in some regards represents a privatization of the NSA data collection machine.

It's important to note that under the bill telecoms (e.g. AT&T, Inc. (T)) can not opt out.  Storage is mandatory.  Further, the bill blocks citizen lawsuits against telecoms complying with the program.  And perhaps most importantly, the government will compensate telecoms for the cost of storing the call metadata, something some fear will actually increase costs of the collection program beyond what they were when the government was directly collecting the data itself.

Fiber Optic cables
Under the plan data collection will be shifted to and distributed amongst multiple telecoms.
[Image Source: AP]

Some have argued that keeping the data in the hands of the companies that manage it in the first place will curb abuse versus allowing the government to amass the data in a central site.  Many are skeptical decentralization will truly help, and they point that these troves of data still pose substantial security and privacy risks, even if such risks no longer come from within the government.

Critics also remain skeptical regarding apparent loopholes in the bill.  And at the end of the day, the bill is still putting a procedure in place that allows federal law enforcement to circumvent due process.  Even if the bill truly narrows the scope of data collection, it's still issuing warrants that ambiguously allow the data seizure of persons relating to certain kinds of narrow "selection terms".  The Fourth Amendment to the U.S. Constitution guarantees:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

However, the bench warrants used under Section 215 only require reasonable suspicion that a targeted user interacted with a suspected terrorist.  The warrants do not, notably, require the targeted user to be currently under suspicion of committing a crime, and thus appear to infringe upon the due process rights guaranteed by the Fourth Amendment.

Further, the orders are approved by the Foreign Intelligence Surveillance Court (FISC) and are generally sealed so the public has no access to them, and businesses are not allowed to talk about them should they get one.  The USA FREEDOM Act appears to do little improve this transparency, although it is worded as such to sound as if it is ordering new auditing and bookkeeping in an attempt to avoid the kind of egregious abuse the existed in recent years (abuse in which audits reported agents to be breaking the law thousands of times a year "accidentally").

II. Majority Leader McConnell Fails Miserably in Attempt to Rewrite, Hijack Bill

The cloture vote was proceeded by a vote on whether to reconsider (revote on) cloture, which passed 77-17.

A silver lining perhaps is that the Senate struck down three amendments proposed by Senate Majority Leader Addison Mitchell "Mitch" McConnell, Jr. (R-Kent.) which would have "watered down" the strict language in the current version of the bill.  These amendments proposed...
  • ...extending the wind-down of U.S. National Security Agency (NSA) bulk records collection from 6 months to 12 months. (S.Amdt.1450) (voted down 54-44)
     
  • ...would have drastically extended the scope of the bill including adding language to the U.S. Code allowing for new powers to supress rioters and those believed to be committing "unlawful acts". (S.Amdt.1449) (voted down 56-43)
     
  • ...the appointment of an "amicus curiae" who would advise the FISC and Supreme Court of the U.S. via briefs or direct discussions on behalf of the U.S. Director of National Intelligence (DNI).  In effect this would have installed a persuasive voice likely in support of approving spying requests in the court. (S.Amdt.1451) (voted down 56-42)
Other proposed amendments by Senators McConnell (visible in the links above) were declined to be taken to vote on the Senate floor.  I recommend reading them over as they're true bizarre and somewhat alarming.  Regardless of your opinion on the USA FREEDOM Bill, it's alarming to see these kinds of blatant attempts to hijack legislation by committing to such voluminous additions that the bill ends up in effect an entirely new law from the original one under debate.

If McConnell wanted to discuss riot police, nuclear proliferation, and other topics, perhaps he should try to get bills explicitly on those topics passed, not try to sneak in pages upon pages of these mandates into mostly unrelated legislation.  It's sneaky at best, downright dishonest at worst.

III. The Votes

Let's now turn to the votes themselves, to avoid any ambiguity.

U.S. Capitol Dome
[Image Source: Cloudflare]

Those opposing McConnell's (mostly) egregious failed amendments notably included: Notably in support included: When it came to cloture those who supported bringing the bill to a forced vote (and ending Sen. Paul's filibuster delays) included:
  • Senator Cruz (R-Tex.)
  • Senator Leahy (D-Verm.)
  • Senator McConnell (R-Kent.)
  • Senator McCain (R- Ariz.)
  • Senator Wyden (D-Oreg.)
Those opposed included:
  • Senator Paul (R-Kent.)
  • Senator Rubio (R- Flor.)
  • Senator Sanders (Independent/Democrat -- Verm.)
  • Senator Udall (D-New Mexico)
When it came to the ultimate vote, those in favor of passage, included:
  • Senator Cruz (R-Tex.)
  • Senator Leahy (D-Verm.)
  • Senator Udall (D-New Mexico)
  • Senator Wyden (D-Oreg.)
Those opposed included:
  • Senator Tammy Suzanne Green Baldwin (D-Wisc.)
  • Senator McConnell (R-Kent.)
  • Senator McCain (R- Ariz.)
  • Senator Paul (R-Kent.)
  • Senator Rubio (R- Flor.)
  • Senator Sanders (Independent/Democrat -- Verm.)
The final vote, and passage came at around 4 p.m. on Tuesday.

IV. McConnell Makes Bizarre Claim That Obama is Anti-NSA

The passage votes show some interesting surprises and topics worthy of mention.  

Notably, Republican Presidential hopefuls Sens. Rand Paul and Marco Rubio voted against the bill, as did Independent Democratic Presidential hopeful Sen. Bernie Sanders.  By contrast Republican Presidential hopeful Senator Cruz surprising sided with the Democratic majority in helping to pass the bill.

Sen. Cruz was effusive about the bill, saying he was happy to work with the President on something they both agreed on.  He commented in a press release:

The USA FREEDOM Act is the right policy approach. It protects the civil liberties of every American. It ends the federal government's bulk collection of personal data from law-abiding citizens. And at the same time it ensures that we maintain the tools that are needed to target violent terrorists and prevent acts of terror. That's why the House passed it overwhelmingly, and today the Senate passed it with a two-thirds majority. That's why I'm proud to be one of the original cosponsors of this bipartisan legislation. The USA FREEDOM Act strikes the right balance between protecting our privacy rights and our national security interests, and I am pleased that today Congress has passed this bill and is sending it to the President's desk.

Cruz -- pro USA FREEDOM Act
Sen. Ted Cruz (R-Tex.) [Image Source: AP]

Senate Majority Leader McConnell, Sen. Rubio, and Senator McCain were among the Republican minority who opposed the bill, but they opposed to do so in the sense that it was stricter than the PATRIOT Act.  

Senator Marco Rubio
[Image Source: Getty Images]

Senator Rubio stated in a press release that he felt the best course would have been full renewal of the PATRIOT Act program of ubiquitous surveillance.  He states:

Because the U.S. remains the freest nation on earth, we will always be targeted by those who attempt to exploit our society’s openness to further their twisted ideology. Unfortunately, weak presidential leadership combined with a politically motivated misinformation campaign have now left the American people less safe than we’ve been at any point since the 9/11 attacks.

The failure to renew the expiring components of the PATRIOT Act was a mistake. The ‘USA Freedom Act’ weakens U.S. national security by outlawing the very programs our intelligence community and the FBI have used to protect us time and time again. ‎A major challenge for the next president will be to fix the significantly weakened ‎intelligence system that the current one is leaving behind‎.

In that regard despite finding themselves in the same group as Sen. Paul and Sen. Sanders, their opposition appeared of a very different nature.

Mitch McConnell
Senate Majority Leader Mitch McConnell [Image Source: Getty Images]

Senate Majority Leader McConnell alluded to this, in his statement to USA Today, commenting:

I cannot support passage of the so-called USA Freedom Act.  It does not enhance the privacy protections of American citizens. And it surely undermines American security by taking one more tool form our warfighters at exactly the wrong time.

Before scrapping an effective system that has helped protect us from attack in favor of an untried one, we should at least work toward securing some modest degree of assurance that the new system can, in fact, actually work.

In a press release he further ratcheted up the rhetoric to bizarre heights accusing -- of all people -- President Obama of trying to "destroy" NSA surveillance. He states:

I will repeat: The President has been a reluctant Commander-in-Chief. And between those two bookends, much has occurred that has undermined our national security.

...

The President’s efforts to dismantle our counterterrorism tools have not only been inflexible — they are especially ill-timed. And today the Senate will vote on whether or not we should take one more tool away from those who defend this country every day: the ability of a trained analyst, under exceedingly close supervision, and only with the approval of the Foreign Intelligence Surveillance Court, to query a database of call data records based on a reasonable articulable suspicion.

No content. No names. No listening to the phone calls of law-abiding citizens. We are talking about call data records.

And these are the provider’s records, which is not what the Fourth Amendment speaks to. It speaks to: ‘The right of the people to be secure in their persons, houses, papers and effects.’ And let me remind the Senate, the standard for reasonable articulable suspicion is that the terror suspect is associated with a ‘foreign terrorist organization’ as determined by the Court.

The President’s campaign to destroy the tools used to prevent another terrorist attack has been aided by those seeking to prosecute officers in the intelligence community, diminish our military capabilities, and despicably, to leak and reveal classified information — putting our nation further at risk.

Is it just me or is that seemingly implying that the President and whistleblower Edward Snowden are in cohoots?  Intriguing.  Unless this is intended as some sort of very unexpected satirical jab at the President or as perhaps overt disinformation on behalf of the Obama administration, I'm unsure what to make of this, other than to say Sen. McConnell's statement is purely insane.

Sen. McConnell w/ Obama
Sen. McConnell shares a laugh with the President. [Image Source: Getty Images]

President Obama voted to extend the PATRIOT Act in 2006, while a Senator.  And he notably petitioned to expand the Bush era surveillance program in 2011.  His administration charged NSA whistleblower Edward Snowden.  And while his plan to reorganize spying was forced by Snowden's leaks, he remains among the strongest proponents of domestic surveillance, a fact that I've written many a critical commentary on.

Yes We Scan
[Image Source: Patheos]

Sen. McConnell's rant can thus be likened to accusing President George Walker Bush of having had too friendly a policy towards the Saddam Hussein regime.

Moving on from that purely insane take, we see others like Senate Minority Leader Leahy and Sen. Wyden praising the end result as a bill that will truly end mass surveillance by installing a more confined replacement.  Let's hope they're right, but I'm skeptical of their statements.

In Sen. Wyden's case he may truly be meaning his vote to be one of pragmatism, committed to with noble intentions.  But at the end of the day, drinking the koolaid when it comes to nullify due process -- even in limited more granular instances -- seems to be a major mistake for Sen. Wyden and a big departure from his past voting record.

V. Sanders, Baldwin Bravely Back Paul in Losing Fight

Sen. Sanders support was unexpected by some, as he had appeared uncertain in his press statements over the weekend on whether he could support the bill.

Many believed he would follow the example of Sen. Ron Wyden -- a longtime opponent of the PATRIOT Act -- who nonetheless supported the so-called USA FREEDOM Act after being satisfied that the specificity of its language would prevent mass surveillance on the scale seen under the original PATRIOT Act.  Ultimately Senator Sanders went his own way, which to anyone who's familiar with his independent spirit actually is not as big a surprise at it seemed.

Senators Paul and Sanders
Senators Rand Paul (R-Kent.) and Bernie Sanders (I-Verm.) stood resolute agains the majority on the grounds of resisting even a reduced suveillance program. [Image Source: AP/Reuters]

Sen. Sanders commented:

We must keep our country safe and protect ourselves from terrorists, but we can do that without undermining the constitutional and privacy rights which make us a free nation. This bill is an improvement over the USA Patriot Act but there are still too many opportunities for the government to collect information on innocent people.

This is not just the government. It’s corporate America too.  Technology has significantly outpaced public policy. There is a huge amount of information being collected on our individual lives ranging from where we go to the books we buy and the magazines we read. We need to have a discussion about that.
Sen. Paul -- facing a vigorous backlash from the neoconservative, pro-surveillance ranks of his party -- echoed that sentiment.  On Monday anticipating eventual defeat he stood resolute, remarking:

Often we use fear, and we say, ‘We won’t be able to catch terrorists.  We already don’t catch terrorists with collecting all the data.  So should we put television monitors in every house to try to prevent terrorist attacks? There is a zero-sum game here that leads us down a slippery slope to where there would be no freedom left.

Some conservative observers suggested the stand would kill his presidential hopes.  Peter Weber of The Week, sounded genuinely supportive of Sen. Paul's actions, but the title of his piece sums up the sentiments of many conservatives -- "Rand Paul just sacrificed his presidential campaign for his libertarian principles."

Sen. Rand Paul
[Image Source: Getty Images]

Another noteworthy vote was that of Sen. Baldwin who joined Sen. Sanders -- an Independent by affiliation who caucauses with the Democrats and hence is sometimes lumped together with them -- in opposing the bill.  Sen. Baldwin marked the only party Democrat to vote in opposition.  

Sen. Baldwin
Sen. Tammy Baldwin (Wisc.) was the only Democrat voting against the bill. [Image Source: TeaParty.org]

In a press release she explained her vote, commenting:

I voted against the PATRIOT Act more than a decade ago because I believed it would open the door to government overreach. Since then, we have seen that secret, domestic surveillance programs at the National Security Agency have crossed the line.

The USA FREEDOM Act makes important reforms, including putting an end to the government’s bulk collection of Americans’ phone records and improving transparency of secret FISA courts. But it doesn't go far enough to protect the privacy and freedoms of law abiding Americans.

I believe the abuses authorized by sections of the Patriot Act should have been more thoroughly addressed by Congress and I am concerned that the USA FREEDOM Act doesn’t do enough to protect civil liberties. Instead of voting on amendments to weaken the bill the Senate should have worked together to make the legislation stronger. I want to close the loophole that allows for warrantless searches of the content of Americans' personal communications. That is why I cosponsored a bipartisan amendment to close this loophole sponsored by Senators Wyden and Paul. This reform deserved a vote but Majority Leader McConnell refused to give us a vote.

I voted against this bill because it doesn’t take action on the warrantless search loophole and still allows for government overreach, abuses and infringement on the freedoms guaranteed by our constitution. I look forward to getting this right and working to help Congress pass legislation that protects our constitutional freedoms and strengthens our counterterrorism efforts.

Senator Baldwin deserves some credit for having the bravery to break with her party so as to follow her principles.

VI. The Next Battle -- Sen. Wyden and Paul Back Rejoin to Fight Other PATRIOT Act Provisions

For both the proponents and critics alike the debate is far from over, though.  Sen. Wyden and Paul -- having briefly found themselves as adversaries this week -- have joined together to support a new set of amendments which are proposed as a standalone set of changes to trim back other aspects of the PATRIOT Act.

Senator Wyden
Oregon Senator Ron Wyden has joined with Sen. Paul to push for more reversals of the PATRIOT Act. [Image Source: AP]

The pair explain in a press release:

Sen. Ron Wyden, D-Ore., and Sen. Rand Paul, R-Ky., announced nine amendments to reform U.S. surveillance programs, enhance protections for American’s personal information and improve transparency regarding intelligence activities. Wyden and Paul called on Republican leaders to allow votes on amendments to strengthen privacy protections, rather than forcing votes on amendments that would water down the USA Freedom Act.

The joint amendments would:
·  Amendment 1446: Require the government to get a warrant before collecting personal information from third parties
·  Amendment 1441: Raise the standard for government collection of call records under FISA from “reasonable grounds” to “probable cause”
·  Amendment 1442: Limit the government’s ability to use information gathered under intelligence authorities in unrelated criminal cases
·  Amendment 1443: Make it easier to challenge the use of illegally obtained surveillance information in criminal proceedings
·  Amendment 1454: Prohibit the government from requiring hardware and software companies to deliberately weaken encryption and other security features
·  Amendment 1444: Clarify the bill’s definition of “specific selection terms”
·  Amendment 1445: Require court approval for National Security Letters
·  Amendment 1455: Prohibit the government from conducting warrantless reviews of Americans’ email and other communications under section 702 of the Foreign intelligence Surveillance Act
·  Amendment 1460: Strengthen the bill with additional provisions from previously introduced surveillance reform legislation.

To list but one highlight these provisions would strike down effectively-warrantless seizures of other types of sensitive data including email, chat logs, journals, bank records, and internet request metadata, among others.

NSA Angry eagle
[Image Source: Wired/Christoph Niemann]

Ultimately the effort to pass that set of changes may prove more crucial to shuttering America's police surveillance state than the USA FREEDOM Act, which critics and supporters alike seem to agree held some modest changes/reforms.  Expect pro-surveillance leaders like President Obama and Senate Majority Leader McConnell to fight this new effort tooth and claw.

Sources: U.S. Senate Votes Record, Sen. Paul [press release w/ Wyden], Sen. Sanders [press release], Sen. McConnell





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