The USA Freedom Act Seeks Protection of Private Phone Records

Last Week the U.S. House of Representatives approved the USA Freedom Act, which would limit – although not eliminate – National Security Agency access to private phone records under the controversial Patriot Act. But the Senate may not agree.

WASHINGTON DC — In the two years since former NSA contractor Edward Snowden blew the whistle on the agency’s secret program, the debate over protecting national security while at the same time preserving privacy protections has raged. It’s unlikely that congressional action now proceeding will stop that.

“I am also encouraged that the version of the USA Freedom Act passed today [Wednesday] increases transparency and improves the Foreign Intelligence Surveillance Court process,” Senator Wyden said in a statement. “I am working with Senate colleagues to pass additional reforms, particularly ending the warrantless backdoor searches of Americans’ personal electronic communications under Section 702 of the Foreign Intelligence Surveillance Act. And I have made it clear I will fight any effort to extend mass surveillance of Americans’ records through a straight renewal of the Patriot Act – even a short-term one.”

Therein lies the political rub in the Senate, especially for majority leader Mitch McConnell (R) of Kentucky.

Three provisions of the Patriot Act (including Section 215) are set to expire June 1. Meanwhile, a federal appeals court in New York ruled last week that the program is illegal. Stuck between a deadline and a court ruling, Senator McConnell has said he wants to reauthorize all three provisions of the Patriot Act without changes.

On Thursday, a bipartisan group of senators and representatives warned against any effort to simply reauthorize the Patriot Act. Instead, they said in a statement, “the Senate should immediately pass the USA Freedom Act” already approved by a wide measure in the House.

Even so, the House bill remains controversial.

“It’s true that the bill ends the phone dragnet as we currently know it – by having the phone companies themselves hold, search, and analyze certain data at the request of the government, which is worse in many ways given the broader set of data the companies hold – but H.R. 2048 [the House bill] actually expands the statutory basis for the large-scale collection of most data,” Rep. Justin Amash (R) of Michigan wrote on his Facebook page.

The House bill does this “by authorizing the government to order the production of records based upon a ‘specific selection term’ (i.e., like a search term used in a search engine),” Representative Amash writes. “The records sought still must be relevant to an investigation, so it’s possible the court’s ruling will continue to restrain the government in some fashion. But it’s more likely a court looking at H.R. 2048’s language will see the ‘specific selection term’ as defining the outer limits of what Congress considers acceptably ‘relevant’….”

On the other hand, warns Michael Mukasey, who served as US attorney general in the administration of George W. Bush and before that as a federal judge, changes in data collection favored by the White House and now most members of the House amount to “a Rube Goldberg procedure that would have the data stored and searched by the telephone companies (whose computers can be penetrated and whose employees have neither the security clearance nor the training of NSA staff).”

“The government, under [this] plan, would be obliged to scurry to court for permission to examine the data, and then to each telephone company in turn, with no requirement that the companies retain data and thus no guarantee that it would even be there,” Mr. Mukasey writes in a Wall Street Journal op-ed column this week. “These constitute burdens on national security with no meaningful privacy protection.”