House Passes Fake USA Freedom Act; Fight Turns To The Senate To Fix A Broken Bill

from the losing-hope dept

As explained earlier, due to pressure from the White House and NSA's supporters in Congress, what could have been real NSA reform was completely changed at the last minute, in secret. The bill, which was substantially different than what both the Judiciary and Intelligence Committees unanimously approved, went to a floor vote and passed 303 to 121. It seems notable that many of the no votes were from people who felt the bill didn't do enough to protect the public from the surveillance state, rather than NSA fanboys worried about reform. Basically, the NSA and its supporters hijacked the reform process and got a bill they wanted, rather than one that actually protects the American public.

Rep. Jim Sensenbrenner, who was the original sponsor of the bill admitted that he was disappointed in what his bill eventually turned into -- though he still voted for it:

“Let me be clear: I wish this bill did more,” Sensenbrenner said during floor debate Thursday. “To my colleagues who lament the changes, I agree with you. The privacy groups who are upset about lost provisions, I share your disappointment.”

There had been some hope that Rep. John Conyers might flip his vote and vote against it, but he not only voted for it, he falsely claimed that this bill would "end domestic bulk collection across the board." It does nothing of the sort. The folks who really understood this stuff were much more direct in saying what a bad bill this is. Last night, I had a chance to speak to Rep. Zoe Lofgren, who still hoped that there was a chance her colleagues would recognize how the bill had been changed in secret, and how problematic that was -- and she tried to fight the good fight on the floor this morning telling her colleagues (unlike what Conyers claimed) that this "is a bill that will actually not end bulk collection, regrettably." Furthermore, she tried to remind people that this was not the bill that was voted out of committee, to highlight the last minute changes.

Unfortunately, those who aren't paying close attention don't seem to care. They just want to be able to go back to their districts and claim they did something to "reform" the NSA, when they could have done much more. But this bill doesn't do that. As Lofgren noted on the floor: "If we leave any ambiguity at all, we have learned that the intelligence community will drive a truck through that ambiguity." And this bill leaves in a ton of ambiguity. On purpose. That was put in at the last minute, with help from the White House.

Either way, the fight now shifts over to the Senate, who will have to approve their own version. Senator Leahy has a version of the bill, but he will face fierce opposition from Senator Feinstein, and the support for reform in the Senate has always been weaker than in the House anyway. Still, some hope that a strong enough public outcry may pressure the Senate into at least something better than the House version.

Filed Under: bulk collection, congress, house, jim sensenbrenner, john conyers, nsa, section 215, surveillance, usa freedom act, zoe lofgren

How Congress & The White House Are Trying To Screw You Over In Secret With The Revamped USA Freedom Act

from the and-left-everyone-with-no-alternative dept

So we already wrote about how the House completely watered down the USA Freedom Act to the point that it really does very little, leading basically all of the civil liberties community to withdraw their support for the bill. If you want to know a little more about the politics at play, I highly recommend Jennifer Granick's explanation, in which she notes the unfortunate reality: this bill no longer ends bulk surveillance at all -- and, in fact, appears to authorize some things that were previously considered questionable, such as the NSA's ability to do "about" searches, rather than just "to" and "from" searches (i.e., rather than just looking for emails from or to a certain person, they want access to emails about that person too).

You may have noticed that while all of the various civil liberties groups have pulled their support -- they have not urged lawmakers to vote against this bill. While there is some fairly contentious debates going on over whether or not some of these groups should go that far, they've basically been painted into a corner. As Granick notes, if the USA Freedom Act doesn't pass, something even worse is likely to happen:

Reformers are still reluctant to openly oppose USA Freedom. That's partially because of the specter of the House Intelligence Committee bill, the FISA Transparency and Modernization Act, which would expand surveillance under the mantle of reform. Privacy groups seem whipsawed between the pale appearance of surveillance reform that is USA Freedom and the actual surveillance expansion that is the Intel bill.

In other words, Reps. Mike Rogers and Dutch Ruppersberger, along with the White House, may have played a game of chess here. They presented their bill, which clearly would make things worse by expanding the NSA's powers, and used it as a sort of backstop. If a bad USA Freedom Act fails, they'll try to push their even worse bill through, and much of Congress could just run home to tell angry constituents that they "fixed" the NSA surveillance issue when they really made it worse. They more or less set it up so that people have to accept the lesser of two evils. But neither will do anything to fix the actual problems of the NSA's overly broad surveillance.

You can almost hear Ruppersberger laughing as he basically laughs off any concern for civil liberties groups, whose importance he couldn't care less about. Remember, the NSA is headquartered in his district:

Rep. Dutch Ruppersberger (Md.), the top Democrat on the Intelligence Committee, seemed unconcerned that the privacy activists' complaints about the changes could lead to a revolt on the House floor.

"This is the way Congress is supposed to work," he said. "Republicans and Democrats, liberals, conservatives, moderates coming together and finding a way to do things that are right for America."

But of course, this isn't all of those groups "coming together" or "finding a way to do things that are right." It's the opposite. The original bill, the one that actually fixed many of the problems had tremendous support in Congress. Enough to pass. It was (1) Congressional leadership who first watered it down, followed by (2) the House Intelligence Committee undermining the already watered down agreement (which was agreed to unanimously by both Judiciary and Intelligence committees) with demands to further water it down and (3) the White House putting even more pressure on the House to change the bill even though it already had so much support.

So, rather than all these groups coming together, it's the opposite. They came together, and were then undermined -- and the White House is now happy about this. While it had remained silent on these bills for months, it has suddenly come out in favor of the USA Freedom Act, which was weakened down in large part due to pressure from within the White House itself, which never wanted real surveillance reform in the first place.

The whole thing is fairly typical backroom political wheeling and dealing where it's the public that gets screwed. Even the tech industry, who has been fairly quiet on the bills has finally woken up to the fact that this bill does nothing to end bulk surveillance. Google, Facebook, Twitter, Linkedin, Dropbox, Microsoft and AOL all pulled their own support of the bill, but it's not going to matter. Chances are the bill is going to pass.

Folks who are actual supporters of civil liberties are quite reasonably angry about all of this. Rep. Zoe Lofgren took to the floor of the House yesterday to decry the situation, highlighting the sheer insanity of the fact that a bill that is supposedly about increased transparency concerning surveillance was changed in secret away from what was unanimously approved by the House Judiciary Committee (and the House Intelligence Committee), to create something that was less transparent. Perhaps it's not so ironic that a bill about transparency would be stripped of the transparency features in a non-transparent process. Rep. Justin Amash has noted that he's "troubled" by what's become of the bill -- and that "Americans expect Congress to protect their basic rights." Unfortunately, at this point, he may be overestimating what Americans have come to expect of Congress. We may want them to protect our basic rights, but we've increasingly learned not to expect it. In fact, we're increasingly being taught to expect the exact opposite.

If Congress wants to actually change that impression, and show that it actually wants to "do the right thing" or "protect the basic rights" of the public, it should reject this bill and go back to the drawing board (or even back to the original USA Freedom Act).

Filed Under: congress, dutch ruppersberger, transparency, usa freedom act, zoe lofgren

As Feared: House Guts USA Freedom Act, Every Civil Liberties Organization Pulls Their Support

from the tragic dept

As we feared would happen, the House, under pressure from the White House, has completely watered down the USA FREEDOM Act. After a long (and, we've heard, contentious) battle among the different players, the bill that's moving to the floor tomorrow is even less useful than the already weakened version that passed out of both the House Judiciary and Intelligence Committees. Following the revelation of the new version of the bill late Tuesday, basically every civil liberties organization pulled their support for the bill.

• EFF: Since the introduction of the USA FREEDOM Act, a bill that has over 140 cosponsors, Congress has been clear about its intent: ending the mass collection of Americans' calling records. Many members of Congress, the President's own review group on NSA activities, and the Privacy and Civil Liberties Oversight Board all agree that the use of Section 215 to collect Americans' calling records must stop. Earlier today, House Leadership reached an agreement to amend the bipartisan USA FREEDOM Act in ways that severely weaken the bill, potentially allowing bulk surveillance of records to continue. The Electronic Frontier Foundation cannot support a bill that doesn't achieve the goal of ending mass spying. We urge Congress to support uncompromising NSA reform and we look forward to working on the Senate's bipartisan version of the USA FREEDOM Act.
  
  
• CDT: Today, the Leadership of the House of Representatives gave the green light to an amendment to the USA FREEDOM Act that would significantly weaken the bill's ban on the government's bulk collection of data, despite the broader consensus that bulk collection must end. The Center for Democracy & Technology (CDT) and other civil liberties groups long supported the USA FREEDOM Act, but have withdrawn their support for the House version of the bill.
  
  "This legislation was designed to prohibit bulk collection, but has been made so weak that it fails to adequately protect against mass, untargeted collection of Americans' private information. The bill now offers only mild reform and goes against the overwhelming support for definitively ending bulk collection," said CDT President and CEO Nuala O'Connor.
  
  
• Open Technology Institute: "House leaders should have allowed a vote on the compromise version of the USA FREEDOM Act that was already agreed to, rather than undermining their own members and caving in to the intelligence community's demands. We recognize the need for the USA FREEDOM Act to move forward now, in order to avoid a worse bill or no bill at all. However, we cannot in good conscience support this weakened version of the bill, where key reforms -- especially those intended to end bulk collection and increase transparency -- have been substantially watered down. We're gravely disappointed that rather than respecting the wishes of the unanimous Judiciary and Intelligence Committees, the House leadership and the Obama Administration have chosen to disrupt the hard-fought compromise that so many of us were willing to support just two weeks ago.
  
  "The original USA FREEDOM Act was a great leap forward on surveillance reform, and the compromise version of two weeks ago was still a big step forward, but today's version is merely leaning in the right direction. Much of what has been weakened in the House version of USA FREEDOM will have to be restored in the Senate before the privacy and civil liberties community will be willing to support this bill again."
  
  
• Access: Today, the U.S. House of Representatives' Rules Committee reported a dramatically different version of the USA FREEDOM Act meant to reform NSA surveillance activities than what was unanimously approved by both the House Judiciary and Intelligence Committees two weeks ago.
  
  Yesterday, Access expressed its concern after learning that House leaders and Obama administration met over the weekend to negotiate the bill and commented, "The version we fear could now be negotiated in secret and introduced on the House floor may not move us forward on NSA reform."
  
  "It's greatly disappointing to witness House leaders succumb to the pressure applied by the Obama administration and others, turning its back on the compromise version of USA Freedom that so many supported just two weeks ago. The USA FREEDOM Act had previously passed through two committees before being secretly watered down behind closed doors. Access is forced to withdraw our support of the USA FREEDOM Act," said Amie Stepanovich, Senior Policy Counsel at Access.

This is unfortunate on many, many levels. I know many who are more cynical will suggest that this was the inevitable end to the process, but that's not true. A much stronger bill had the opportunity to move forward, but the White House -- despite President Obama's own promises -- put pressure on the House to change the bill and significantly weaken it. Basically, the White House has now made it clear that for all its talk about respecting the constitution and civil liberties, when it comes time to actually show real leadership, it won't do it, and instead will back efforts that make a mockery of basic civil liberties.

Filed Under: congress, nsa, privacy, surveillance, usa freedom act
Companies: access, cdt, eff, oti

USA Freedom Act Being Watered Down Even More... Getting Close To Useless

from the because-of-course dept

We were already disappointed that the USA Freedom Act -- which was the original "pretty good" response to NSA surveillance -- had been watered down in a manager's amendment before being voted out of committee. The original bill already had some issues, but also did fix some of the worst issues of NSA surveillance. The manager's amendment watered it down so that it was still better than nothing, but really not that great. And, of course, between passing out of both the Judiciary and Intelligence Committees, it appears that the bill (with tremendous pressure from the White House) is being gutted even further, such that the end result may be close to useless.

“Last stage negotiations” between members of the House and the Obama administration could significantly weaken provisions in the NSA bill, people familiar with the discussions say.

“Behind the scenes, there’s some nervousness,” one House aide said.

From what I've heard, that last line is an understatement. It goes beyond "some nervousness" to people recognizing that the bill has basically been stripped of nearly all important parts. As the article notes above, it appears that a casualty of the negotiations is the transparency provisions that would at least (finally) allow companies to be much more transparent about what information the FISA Court and the FBI/NSA are demanding they hand over. Taking that transparency out of the bill not only may re-raise First Amendment issues, but it also leaves a giant loophole for the NSA to continue to force companies to destroy our 4th Amendment rights, without anyone knowing about it, or being able to challenge it.

There are still a few things in the bill that would be useful, but the list is quickly dwindling, and by the time this whole process is over, the bill itself may be worse than useless.

Filed Under: congress, house, transparency, usa freedom act, white house

USA Freedom Act Passes Out Of House Judiciary Committee With Some Good And Some Bad

from the it's-meh-all-around dept

As expected, the USA Freedom Act has been passed out of the House Judiciary Committee today, moving the bill forward in a process that will likely bring some version of it to the House floor in the next few weeks. The markup include a variety of amendments, some dopier than others. One generally good amendment was added, bringing back the transparency provisions for tech companies to reveal some information about government requests they receive. Unfortunately, this wasn't as strong as it should be, keeping very wide "bands" under which the tech companies have to obfuscate how many requests they actually receive and how many users are impacted. There was some push to tighten the bands, and that is likely to continue, but it's unlikely to change. Late yesterday, the manager's amendment also added an important definition for "specific selection term" -- which if left totally undefined would easily lead to abuse. The definition is... not great. It can still be abused, but not as readily as when there was no definition.

The other major problem is that this new version strips out the attempt to close the loophole that allowed backdoor searches on Americans without a warrant. This is a big deal as the original version would have closed that loophole. The NSA apparently lobbied hard to remove it, and when Rep. Zoe Lofgren tried to amend this new version to bring back the ban, it was rejected quickly. In other words, the NSA (who has pretended this is no big deal) likely uses this "loophole" quite a bit and doesn't want to lose it.

That said, the bill is clearly a step forward, and both EFF and CDT have cautiously praised the House Judiciary Committee for moving forward on the bill, while still asking for more civil liberties protections and greater transparency.

The real question, though, is what will the House Intelligence Committee do with the bill tomorrow. As we noted earlier today, after fighting it for months, Rep. Mike Rogers has now indicated he's more comfortable with the (weakened) bill, and will be doing a dual markup of both his own bill and this new USA Freedom Act, leading many to suspect that some sort of deal has been reached to effectively incorporate parts of his (bad) bill into this USA Freedom Act -- potentially weakening it even further. We'll find out in a few hours.

Filed Under: bulk data collection, house intelligence committee, house judiciary committee, jim sensenbrenner, mike rogers, nsa, surveillance, usa freedom act

Looks Like 'Compromise' Has Been Reached On NSA Reform Bills

from the and-that-may-not-be-a-good-thing dept

On Monday, we noted that two different competing NSA reform bills had started lurching forward in Congress, though in looking through the Manager's Amendment of the "good" bill, it quickly became clear that it had been very watered down, such that it really wasn't that "good" any more. Late last night, there was a report coming out that the NSA's number one defender, Rep. Mike Rogers, was actually much happier with the USA Freedom Act. In other words, it had been watered down so much that even Mike Rogers was willing to say it was a good bill.

In a dramatic change of tone, Rep. Mike Rogers, the chairman of the House Intelligence Committee, praised a bill in the House Judiciary Committee that would sharply curb the National Security Agency's surveillance powers. His remarks suggest that the powerful lawmaker may be more willing to vote for tougher reforms than previously anticipated.

Rogers and other national security hawks have spent weeks arguing that the USA Freedom Act, the most aggressive NSA reform bill under consideration in Congress, would remove tools that the government needs to track phone calls by foreign terrorists. Rogers, a staunch NSA supporter, is the sponsor of another bill that would codify many of the surveillance practices opposed by privacy advocates, such as the dragnet collection of records.

As we speak, the House markup on the bill is ongoing. However, in a twist, tomorrow's "competing" markup for the FISA Transparency and Modernization Act -- which is Rogers and Rep. Dutch Ruppersberger's "competing" bill -- has now added a markup of the USA Freedom Act to the agenda. That means that a deal has been made, and if Rogers is willing to add USA Freedom to his committee's schedule, it means that the "deal" is one that favors the NSA and not the public.

That is not to say that the USA Freedom Act does nothing. It actually does a few things to limit the NSA, but really does not tackle the largest problems. There was a lot of good stuff in the earlier version of the bill (which still didn't go far enough on its own) and now it's significantly weaker. So, rather than fixing the overall mess, the new USA Freedom Act makes some small fixes while leaving all sorts of problems.

Filed Under: bob goodlatte, bulk collection, bulk records, compromise, congress, dutch ruppersberger, jim sensenbrenner, mike rogers, nsa, surveillance, usa freedom act

NSA Reform: Do You Support The Lesser Of Two Evils, Or Hope For Something Better?

from the not-a-good-situation dept

We wrote yesterday about Congress suddenly lurching forward with two competing NSA reform bills: the USA Freedom Act from Rep. Jim Sensenbrenner and the House Judiciary Committee and the FISA Transparency and Modernization Act from Reps. Mike Rogers and Dutch Ruppersberger and the House Intelligence Committee. As we noted, the USA Freedom Act -- which had been the general consensus choice as the best bill for actually stopping the worst of the worst NSA surveillance (while still not fixing everything) -- was actually being watered down by Sensenbrenner's manager's amendment.

Marcy Wheeler has been digging in and highlighting just how badly the bill has been weakened, and has now started calling it the USA Freedumb Act, noting that it's stripped out nearly all of the good stuff, basically wiping out most of the protections for you and me, but making sure that the telcos are well protected from any lawsuits that might emerge over them handing all of our info over to the government. The bill also wipes out the transparency requirements that the tech companies had pushed strongly for.

The problem then, becomes something of a political one. One of these two bills is likely to move forward, and both are pretty bad at this point, though USA Freedom is marginally better. Do you support a marginally better bill in the hopes of blocking a really bad bill? Or do you hope (with little chance of it happening) to block both bills and pray for a magical third solution that actually does something useful? It's a pretty blech situation all around.

One of the tricky parts of bills like these, which adjust the language in existing bills, is that merely reading the bills alone isn't nearly enough, because they're amending existing language, and pointing to various places. You have to put it all together to figure out what's really going on. Wheeler, again serving a tremendously important role, is attempting to do that, showing how Section 215 would look under the manager's amendment under USA Freedom. This suggests that a big problem is the lack of some key definitions -- with "selection term" being one which might actually create a loophole for the NSA to drive a surveillance barge through.

One hopeful idea is that during tomorrow's markup, someone can actually get some amendments through that actually defines these undefined terms in a way that actually limits the NSA's powers (and potentially bringing back some of the transparency requirements). Right now it's not clear if that will happen, though there's typical political horse trading going on in the back rooms. Still, a good definition (and there's a chance that any definition would be bad...) would go a long way towards taking the USA Freedumb Act back to being the USA Freedom Act.

Filed Under: dutch ruppersberger, fisa transparency and modernization act, jim sensenbrenner, mike rogers, nsa, surveillance, usa freedom act

Competing NSA Reform Bills Suddenly Lurch Forward In Congress

from the well-this-might-get-interesting dept

In a bit of a surprise move, the House Judiciary Committee, led by Rep. Bob Goodlatte, caught people off guard this morning by announcing that there would be a markup of the USA FREEDOM Act on Wednesday, complete with a Manager's Amendment from bill author Rep. Jim Sensenbrenner. If you don't recall, the USA FREEDOM Act was the best bet for real NSA reforms. It was far from perfect, but did actually do a lot of good things without adding a bunch of bad things. The amended version scales that back a bit. It's not as good, but it's still pretty good. Harley Geiger, over at CDT has a good overview of the Manager's Amendment, and how it actually improves the bill in certain areas, while Marcy Wheeler highlights both the good and bad of the amendment.

Of course, within just a few minutes of the Judiciary Committee announcing its plans to move forward with the USA FREEDOM Act, the House Intelligence Committee announced that it would hold its own damn markup on the competing "NSA reform" bill from Reps. Mike Rogers and Dutch Ruppersberger, which is designed to look like a shot at NSA reform, but which really would make it easier for the NSA to collect info on people. That bill, called the FISA Transparency and Modernization Act (almost none of that is true), is basically the NSA's prime choice for pretending to be reform.

This sets up a bit of an upcoming fight -- assuming that both markups lead to bills getting voted out of committee -- to see which bill House Speaker John Boehner is willing to bring to the floor. Basically, Boehner gets to make the final decision on NSA reform at this stage. Will he bring the real reform bill or the fake one?

Filed Under: bob goodlatte, congress, dutch ruppersberger, fisa, house intelligence committee, house judiciary committee, jim sensenbrenner, mike rogers, nsa, reform, surveillance, transparency, usa freedom act

Congress Warns DOJ That If It Doesn't Support NSA Reform Plan, It Won't Renew Key Patriot Act Provision

from the get-your-act-together dept

While the USA Freedom Act isn't perfect, it is one bill in Congress that has a lot of support and will fix many problems with the current NSA overreach. Much more needs to be done, but the USA Freedom Act is a good starting point. And yet, the Obama administration and his Justice Department have yet to take a public stand on the bill, and that seems to be annoying plenty of folks in Congress. At the recent Judiciary Committee hearings, Rep. Jim Sensenbrenner, the original author of the Patriot Act and Section 215, made it abundantly clear that the DOJ/NSA's interpretation of his bill was simply incorrect and that they were abusing the system. As the sponsor of the USA Freedom Act to fix this misinterpretation, he pointed out that if the DOJ doesn't agree to support it, there's a good chance that Congress simply won't renew the provisions in Section 215 at all. Section 215, of course, is the part that has been misinterpreted by the DOJ, the FISA court, the NSA and the FBI to pretend it authorizes the collection of every phone record. In short, the message from Congress is: work with us to reform things, or we'll pull the authority altogether. Of course, some of us think that pulling the authority altogether might be a better long term solution.

And it's not just Sensenbrenner making those claims. Many others -- across the political spectrum -- made it clear during the hearing that the NSA's actions with regards to Section 215 were unacceptable and Congress is going to make them change things. Yes, nothing has happened yet, and Congressional bluster doesn't always lead to results, but it's becoming increasingly clear that the NSA (and the President's) desire to keep collecting everyone's metadata is not convincing anyone.

Filed Under: doj, house judiciary committee, jim sensenbrenner, nsa, reform, section 215, surveillance, usa freedom act

What The USA FREEDOM Act Doesn't Fix

from the lots-more-to-go dept

We've discussed the USA FREEDOM Act, introduced in the Senate by Senator Leahy and in the House by Rep. Sensenbrenner a few times now, pointing out that it really does look to rein in the worst of the NSA's abuses. It also has the best chance of any proposal to date of getting passed. That doesn't mean the bill is perfect, and it has plenty of problems. The good folks over at EFF have given some conditional support to the bill, noting that it "would be a substantial improvement to America’s laws regarding mass surveillance" and does a bunch of very important things in response to the overreach by the US government.

However, the group notes, the bill should be a "floor, not a ceiling." That is, it needs to be a starting point, because there are all sorts of problems it doesn't yet fix.

The bill only addresses a small portion of the problems created by NSA spying and overreaching government secrecy. It does not touch problems like NSA programs to sabotage encryption standards, it does not effectively tackle the issue of collecting information on people outside of the United States, and it doesn't address the authority that the government is supposedly using to tap the data links between service provider data centers, such as those owned by Google and Yahoo.

The bill also does not address a key issue that the government uses to inhibit lawsuits contesting the spying: excessive secrecy. For instance, it won't deal with the major over-classification issues or the state secrets privilege, the latter of which is used aggressively to prevent litigation from getting to a court decision on whether the spying is unconstitutional. The bill also leaves out a clause appearing in Sen. Ron Wyden's bill, which provides guidelines to obtain standing in legal cases against the spying.

Lastly, it does not hold public officials accountable for their role in allowing this spying to take place and hiding it from public and Congressional oversight, and it does not create a Congressional committee that could independently investigate the surveillance programs and give the country a full accounting. Remember we are still just learning the full depth of the programs on a piecemeal basis.

I know that some people would prefer bills that do in fact cover all of that, and are against the USA FREEDOM Act for not going nearly far enough. There is, also, quite a legitimate fear that there is likely to only be appetite for one bill in Congress, so if the USA FREEDOM Act passes, all of the other missed issues will never get addressed. That's a legitimate fear, but it's going to be difficult enough to get the USA FREEDOM Act approved in the first place, and if people fight against it just because it doesn't include everything, there's a decent chance we'll get nothing at all.

Filed Under: jim sensenbrenner, nsa, patrick leahy, surveillance, usa freedom act