House Bill Flawed
May 22, 2014
This so-called reform bill won't restore the trust of Internet users in the US and around the world. Until Congress passes real reform, US credibility and leadership on Internet freedom will continue to fade.
Cynthia Wong, senior Internet researcher

(Washington, DC) – It is up to the US Senate to salvage surveillance reform, Human Rights Watch said today. The version of the USA Freedom Act that the US House of Representatives passed on May 22, 2014, could ultimately fail to end mass data collection.

The version the House passed is a watered-down version of an earlier bill that was designed to end bulk collection of business records and phone metadata. The practice has been almost universally condemned by all but the US security establishment.

“This so-called reform bill won’t restore the trust of Internet users in the US and around the world,” said Cynthia Wong, senior Internet researcher at Human Rights Watch. “Until Congress passes real reform, US credibility and leadership on Internet freedom will continue to fade.”

The initial version of the bill aimed to prohibit bulk collection by the government of business records, including phone metadata. The bill only addressed one component of the surveillance programs revealed by the former National Security Agency contractor Edward Snowden, that of US record collections. However, it had broad support as a first step, including from Human Rights Watch. On May 7, a diluted version of the bill passed unanimously out of the House Judiciary Committee, followed by Intelligence Committee approval on May 8.

While better than alternative bills offered, the version the House passed could leave the door wide open to continued indiscriminate data collection practices potentially invading the privacy of millions of people without justification, Human Rights Watch said.

President Obama, members of Congress, and two independent review panels had all made public statements to the effect that bulk collection of phone records was not essential to fighting terrorism and should be halted. However, House leadership weakened the bill even further, partly at the request of the Obama administration in last minute, closed-door negotiations.

The following are key problems with the bill:

  • Ambiguous definitions may fail to rein in overbroad collection: House leadership watered down a key definition that was meant to narrow the scope of what the US government could collect under Section 215 of the Patriot Act. US intelligence agencies have used Section 215 to justify the collection of phone records of potentially all calls made to, from, or within the US.

    Under an earlier version of the USA Freedom Act, the government would have been required to base any demand for phone metadata or other records on a “specific selection term” that “uniquely describe[s] a person, entity, or account.” Under the House version, this definition was broadened to mean “a discrete term, such as a term specifically identifying a person, entity, account, address, or device, used by the government to limit the scope” of information sought.

    This definition is too open-ended and ambiguous to prevent the sort of creative interpretation by intelligence agencies that has been used to justify overbroad collection practices in the past.

  • No real safeguards for people outside the US: The House bill lacks serious reforms to safeguard the right to privacy of people outside the US. Surveillance practices under Section 702 of the Foreign Intelligence Surveillance Amendments Act potentially invade the privacy of millions of people outside the US. The bill only superficially addresses Section 702 surveillance since proposed changes increase privacy protections for only people in the US, and not people located abroad. For example, nothing in the bill would prevent the government from intercepting all internet traffic flowing into the US over transatlantic cables, as long as information on people in the US is minimized.

  • Indirectly recognizes collection of communications “about” a surveillance target: More problematically, the bill recognizes authority for the NSA to broadly collect communications “about” a target, which sweeps in communications of people who are not even communicating directly with a surveillance target. Section 702 has never explicitly authorized collection of communications “about” a target. This practice was first revealed in documents released by Snowden in 2013 and involves searching all Internet traffic as it flows over fiber optic cables entering the US to collect communications that merely mention a target. The bill now indirectly references and acknowledges this practice.

The Senate should restore the safeguards that the House rejected when it takes up its own version of the USA Freedom Act, and go further to protect the rights of the world’s Internet users, Human Rights Watch said. Instead of just acknowledging the practice, Congress should prohibit the collection of communications that merely mention a surveillance target.

“While better than the Intelligence Committee’s bill, the House compromise bill is a disappointment and ignores a broad consensus that all overbroad collection should end,” Wong said. “With this capitulation, it is now up to the Senate to pursue much deeper, more genuine reform to end mass surveillance.”