Bill Would Be a First Step to Address Rights Concerns
(Washington, DC) – The US Senate should move swiftly to approve a surveillance reform bill introduced on July 29, 2014, by Judiciary Committee Chairman Patrick Leahy, Human Rights Watch said today. The bill, known as the USA Freedom Act, is a significant improvement over a companion bill that the US House of Representatives passed on May 22 and, if approved, has the potential to end bulk collection of phone records in the US.
“The NSA’s large scale collection of phone metadata has deeply undermined the public’s trust in government and is doing serious harm to basic freedoms and democratic accountability in the US,” said Cynthia Wong, senior Internet researcher at Human Rights Watch. “The Senate’s bill is a much-needed first step, and Congress should act quickly to approve it without letting it be diluted.”
Human Rights Watch had previously criticized the ambiguous language in the House version of the bill. That version would leave broad loopholes that could ultimately fail to end mass phone data collection, despite the fact that its sponsors say that is the central objective of the draft law. The House-passed bill also would weaken transparency and oversight provisions in an earlier draft of the USA Freedom Act that could have improved supervision of surveillance practices.
The Senate version addresses many of the flaws of the House version:
- Tightens scope of call data and other business records that can be collected: Section 215 of the USA Patriot Act allows intelligence agencies to acquire business records that are “relevant” to an investigation. However, the NSA has strained the interpretation of “relevance” to allow the agency to potentially collect all data from phone companies on calls made to, from, or within the US. The Senate bill would tighten a key definition (“specific selection term”) that is intended to narrow the scale and scope of what the US government can collect under section 215 and other legal authorities. In the House version, this definition is open-ended and ambiguous and may not prevent the sort of elastic interpretation used by intelligence agencies to justify overly broad collection practices. In contrast, the Senate bill specifies that collection cannot be based solely on terms that identify a geographical region or service provider. While the definition does not completely guard against possible abuse, it would be an important improvement and transparency measures provide an additional check against abusive application of the law. The bill also limits the use of call records to counterterrorism purposes.
- Enhances transparency: At present, the government barely offers any public reporting on its intelligence-gathering surveillance activities and strictly curtails the ability of companies to disclose how much information the government has sought and how companies have responded. The bill would expand government reporting on the use of its surveillance authorities, including reporting on estimates of individuals affected, and enable additional ability for private companies to report on the government requests for data they receive. The bill would also require the government to release summaries or redacted opinions that include significant interpretations of the law by the Foreign Intelligence Surveillance Court. These transparency measures can enhance oversight of these programs by the US Congress and the public.
- Strengthens Foreign Intelligence Surveillance Court mechanisms: Currently, the Foreign Intelligence Surveillance Act (FISA) court only hears arguments from the government in considering whether to approve surveillance orders, and the interest of affected individuals is not represented. The bill would require the appointment of a panel of advocates to argue on behalf of the right to privacy and civil liberties at the FISA court in certain cases to create a more adversarial and robust judicial oversight process.
Like the House version, however, the Senate USA Freedom Act does not include serious reforms to safeguard the human rights of people outside the US. Surveillance practices under section 702 of the Foreign Intelligence Surveillance Amendments Act and Executive Order 12333 most likely invade the privacy of many millions of people outside the US. 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. It also would not address programs reported by the media where the NSA is intercepting all phone calls and metadata in two countries, and all metadata in an additional three countries.
A joint report by Human Rights Watch and the ACLU released on July 28 finds that mass surveillance is damaging the ability of journalists working on national security, intelligence, and law enforcement to report on matters of great public concern. Mass surveillance, combined with a government crackdown on leaks and restrictions on contact between officials and the press, has made sources afraid to speak to journalists, even on unclassified matters. As a result, journalists reported, sources are much harder to find, and journalists are going to extreme lengths to protect their communications and avoid leaving an electronic trail. The report found similar concerns among lawyers, who feel uncertain about their ability to protect communications with their clients, build trust with them, and fulfill their professional responsibilities.
The Senate version would not address all of the journalists’ and lawyers’ concerns, as the bulk metadata program is only one of several under which the communications and personal data of lawyers and journalists may be swept up by US intelligence agencies. Reforms to practices under section 702 of the Foreign Intelligence Surveillance Act Amendments and Executive Order 12333 are also necessary to address the corrosive impact of surveillance on media freedom and the right to counsel, as well as the concerns of many others over harm to the right to privacy, freedom of association, and freedom from discrimination. Nonetheless, ending the bulk metadata program would be an important first step.
“US intelligence officials contend there is no harm to privacy when metadata is gathered, but not examined, but they ignore the very real harm that unchecked, secret surveillance can have on journalists, lawyers, and many others whose work is key to a well-functioning democracy,” Wong said. “We are only beginning to understand the true costs of mass surveillance.”