An undated aerial handout photo shows the National Security Agency (NSA) headquarters building in Fort Meade, Maryland.

(Washington, DC) – The United States Congress should swiftly pass the USA Freedom Act to thwart bulk data collection and improve transparency and oversight of surveillance in the US, Human Rights Watch said today. The House Judiciary Committee approved the bill on April 30, 2015.

Members of the House and Senate introduced the USA Freedom Act of 2015 on April 28 to end domestic bulk collection of phone records and other data. As revealed by the former National Security Agency (NSA) contractor Edward Snowden in 2013, the US government has justified the collection of potentially millions of phone records of people in the US who have not been linked to wrongdoing under a secret and expansive interpretation of section 215 of the USA Patriot Act. The USA Freedom Act would end such indiscriminate gathering of phone records, along with other data, under section 215 and several other US laws.

“The USA Freedom Act is a critical first step toward reining in the NSA’s surveillance excesses and addressing the mass violations of privacy revealed by Edward Snowden nearly two years ago,” said Cynthia Wong, senior Internet researcher at Human Rights Watch. “While the bill leaves many human rights concerns unaddressed, it provides a foundation for future reform. Congress should pass the bill without delay or any changes that would weaken it.”

Section 215 of the USA Patriot Act is set to expire on June 1 unless Congress acts. However, congressional support to simply let the law lapse is weak, and Senate leadership has already offered a proposal to extend the Patriot Act provisions without any additional privacy safeguards. On April 21, the Senate majority leader, Mitch McConnell, and the Senate Intelligence Committee chairman, Richard Burr, introduced S. 1035, a bill that would extend section 215 and other provisions of the USA Patriot Act without reforms for five more years. The USA Freedom Act is an alternative to a blanket extension of section 215.

Previous versions of the USA Freedom Act were introduced and debated in 2014, but Congress failed to enact them. The USA Freedom Act of 2015 retains many of the key reforms from a version of the bill introduced by Senator Patrick Leahy in 2014, which Human Rights Watch supported.

Section 215 of the USA Patriot Act allows intelligence agencies to acquire business records that are “relevant” to an investigation. Under current practice, intelligence agencies and the Foreign Intelligence Surveillance Court have strained the interpretation of “relevance” to cover potentially all call records from phone companies in the US, along with other personal records.

Call records, also termed “metadata,” do not include the content of conversations, but can produce a comprehensive picture of a person’s movements, associates, and interests by mapping the network of people with whom they communicate and where and when they make the calls. Such dragnet intrusions of privacy are disproportionate and chill the rights to freedom of expression and association, Human Rights Watch said. The bulk phone records program has also harmed the work of journalists in the US, who find it more difficult to protect the identity of sources who may fear reprisals for discussing even unclassified matters related to national security.

The USA Freedom Act would narrow the scope and scale of which records, including phone metadata, intelligence agencies can gather. Rather than collect all records from a phone company, agencies would have to identify and show that a “specific selection term” – for example, a term that identifies an individual, account, or personal device – is associated with international terrorism to request call records based on that term. The bill would impose a similar, though broader, requirement for other kinds of records.

This approach would make it more difficult for agencies to justify wholesale gathering of records nationwide. While the bill does not fully guard against expansive future interpretations of what constitutes a “specific selection term” or guarantee critical judicial scrutiny of requests, transparency measures in the bill could provide additional protections against abusive application of the law.

Like previous versions, the bill also includes provisions to increase transparency around government surveillance programs and improve oversight by the Foreign Intelligence Surveillance Act (FISA) court. The bill would permit technology companies that receive surveillance orders to report on the number of orders received and the number of customer selectors targeted. The bill also would require the government to report on how it uses specific surveillance laws and to publicly disclose unclassified summaries of FISA court opinions that involve significant interpretations of law. The bill would introduce further FISA court reforms by establishing a panel of experts to assist the court with novel legal issues or technical matters, including by advocating for privacy and civil liberties. Under current practice, only the government is represented before the FISA court.

However, the bill’s transparency and court oversight provisions are less robust than would have been required in a previous version of the bill, with more limited reporting requirements and a more narrowly defined role for external court advocates. While the USA Freedom Act is an improvement over current practice, Congress should go further and strengthen transparency and oversight provisions as an essential safeguard against future abuses of foreign intelligence gathering laws, Human Rights Watch said.

Critically, the bill does not address mass surveillance that Snowden revealed under other laws, including section 702 of the FISA Amendments Act and executive order 12333. These legal authorities provide almost no protections for the privacy and other human rights of people outside the US. President Obama and Congress should take up meaningful reform to address the human rights concerns of billions of people outside the US whose data may be swept up the NSA’s global dragnet, Human Rights Watch said.

The bill also includes a new provision that increases the maximum penalty for material support of foreign terrorist organizations from 15 to 20 years. The US has made overly broad use of material support charges to punish behavior that did not demonstrate an intent to support terrorism. Extending the maximum penalty for material support could exacerbate these harms and Congress should remove the provision from the bill, Human Rights Watch said.
“While we are disappointed that the bill falls short in some areas, Congress shouldn’t put off reform any longer,” Wong said. “Reauthorizing section 215 of the Patriot Act without substantial protections for privacy is simply not an option. The US should show the world that it can take privacy seriously while protecting its national security in the digital age.”