Sen. Leahy Proposes New Limits on NSA Surveillance and Greater Transparency

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Sen. Patrick Leahy has introduced a bill designed to change how the US National Security Agency is allowed to conduct digital surveillance, and allow the public more information on the NSA’s actions.

Leahy, the chairman of the Senate Judiciary Committee, presented an updated version of the ‘‘USA FREEDOM Act of 2014’’ (PDF) to the US Senate this week, which builds on legislation passed in the House in May.

This legislation bans surveillance authorities from the bulk collection of data that was allowed under Section 215 of the USA PATRIOT Act. It also requires the government be more specific in regards to the information it seeks, and adds reforms to the secret courts under the Foreign Intelligence Surveillance Act (or “FISA”) to make them more transparent.

“If enacted, this bill would represent the most significant reform of government surveillance authorities since Congress passed the USA PATRIOT Act 13 years ago,” Leahy said to Congress. “This is an historic opportunity, and I am grateful that the bill has the support of the administration, a wide range of privacy and civil liberties groups, and the technology industry.”

The USA FREEDOM Act has wide support, with more than 100 co-sponsors in the House and Senate and supporters in the technology sector including Microsoft, Apple, Yahoo, Facebook, AOL, Google, LinkedIn and Mozilla, some of whom were required by FISA courts to handoff customer data to the NSA. It also has the support of groups as diverse as the American Civil Liberties Union, the National Rifle Association, and the Project on Government Oversight.

The ACLU has stated that The USA FREEDOM Act could represent the first time since the Foreign Intelligence Surveillance Act passed in 1978 that US Congress has taken action to constrain the intelligence community. They note that it could also help restore privacy protections lost in the Patriot Act.

Since Edward Snowden exposed evidence of a massive surveillance operation performed by intelligence agencies, many members of the public have been calling for greater oversight.

If approved, the USA FREEDOM Act could ensure government abuses of authority becomes public, due to provisions that require FISA courts to release opinions or at least relevant information about important opinions, giving the public an idea of how the court decides to interpret existing law.

Even the private FISA court will have an inside privacy advocate, overturning the current FISA system which is currently non-adversarial. Instead of only having a judge and a government attorney arguing for surveillance, and no one to advocate for the target of surveillance, this bill creates a position within the FISC for advocating for the privacy interests of targeted Americans and foreigners. However, this advocate would only be allowed to participate in proceedings at the judges’ discretion, but judges would need to report how frequently they decline to appoint an advocate.

Of course, even its supporters have pointed out that the USA FREEDOM Act isn’t perfect. The EFF notes that it does not adequately address Section 702 of the FISA Amendments Act which allows the government to engage in mass Internet surveillance. It also doesn’t address Executive Order 12333, which allows the NSA to allow extensive spying both on foreigners and U.S. citizens abroad. As well, the new USA FREEDOM does little to protect the rights of foreign citizens.

Still, the USA FREEDOM Act is one of the most promising proposals to come in the response to new information on government spying. And other aspects of government intrusion are being addressed. For instance, the House recently voted to block government authorities from conducting warrantless searches on the data of US citizens, and stop the NSA and the Central Intelligence Agency from creating backdoors in software and hardware for spying.

Many US companies that handle personal data, including web hosts and cloud services, have been met with suspicion ever since it became known that the government, in many cases, used them to collect private information. Surveys indicated that 31 percent of IT decision makers are storing data where they believe it will be safe, obviously hurting businesses operating in the US.

Before the USA FREEDOM Act can be signed into law by the President, the Senate still needs to schedule a vote, which is a process that sometimes means some concessions. Also, even if the bill passes a Senate vote, the different House and Senate versions of The USA FREEDOM Act need to be reconciled, or the House could vote on the Senate version of the bill.

While the USA FREEDOM Act won’t be the last legislation of its kind, it could be a major step in restoring trust in online services.

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