Anyone who’s followed legislative efforts over the past ten plus years to restore a fraction of the civil liberties lost by Americans to the USA PATRIOT Act and other surveillance laws will understand the photo accompanying this post. With the revelations of the last several years in particular, first by the New York Times and then Edward Snowden, many believed that real reform might be achieved in the last Congress by passing the USA FREEDOM Act of 2014. They were wrong.
In May 2014, the House passed a version of the USA FREEDOM Act (H.R. 3361) that was dramatically weakened from a civil liberties point of view in the House Judiciary Committee and then stripped of virtually all meaningful privacy-restoring reforms by the full House of Representatives. While strenuous efforts were made to bring a robust version of the bill (S. 2685) to the floor of the Senate, Republican members filibustered that bill and the 113th Congress ended without further action on any form of the USA FREEDOM Act of 2014.
Undeterred, the bill’s bipartisan sponsors in both chambers recently reintroduced the USA FREEDOM Act of 2015, H.R. 2048 and S. 1123, a tenuously calibrated agreement that garnered the support of both many civil liberties organizations, including the American Library Association (ALA), as well as congressional “surveillance hawks,” the nation’s intelligence agencies, and the Administration. On May 14, just one week after a federal appeals court ruled the NSA’s use of Section 215 to collect Americans’ telephone call records in bulk illegal, H.R. 2048 passed the House with a strongly bipartisan vote (338 yeas – 88 nays). At this writing, with effectively just one week remaining for Congress to consider expiring PATRIOT Act provisions before recessing for the Memorial Day holiday and the June 1 “sunset” of those provisions, the bill’s fate rests with the Senate and is highly uncertain.
Not all civil liberties advocates, however, are pushing for passage of this year’s version of the USA FREEDOM Act. The ACLU, for example, is calling on Congress to simply permit Section 215 and other expiring provisions of the PATRIOT Act to “sunset” as scheduled on June 1. The Electronic Frontier Foundation (EFF) also is urging Members of Congress to strengthen H.R. 2048 (rather than pass it in its current form) because, in EFF’s view, the reforms it makes will not sweep as broadly as the appeals court’s recent ruling could if upheld and broadened in its precedential effect by adoption in other courts (including eventually perhaps the U.S. Supreme Court). Neither group, however, is urging Members of Congress to vote against H.R. 2048.
These views by respected long-time ALA allies have, not unreasonably, caused some to ask (and no doubt many more to wonder) why ALA is actively urging its members and the public to work for passage of H.R. 2048. The answer is distillable to four words: policy, politics, permanence, and perseverance.
Since January of 2003, the Council of the American Library Association (the Association’s policy-setting body) has adopted at least eight Resolutions addressing the USA PATRIOT Act and the access to library patron reading, researching and internet usage records that it affords the government under Section 215 and through the use of National Security Letters (NSLs) and their associated “gag orders.” While somewhat different in individual focus based upon the legislative environments in which they were written, all make ALA’s position on Section 215 of the PATRIOT Act and related authorities consistently clear. Stated most recently in January of 2014, that position is that ALA “calls upon Congress to pass legislation supporting the reforms embodied in [the USA FREEDOM Act of 2014] (see ALA CD#20-1(A)).”
As detailed in this Open Technology Institute (OTI) section-by-section, side-by-side comparison of the current USA FREEDOM Act (H.R. 2048) with two versions introduced in the last Congress, the current bill is a long way from perfect (just as the “old” ones were). It does, however, achieve the principal objectives of last year’s legislation endorsed by ALA’s Council. Specifically, H.R. 2048:
- categorically ends the bulk collection not only of telephone call records but also of any “tangible things” (in the language of Section 215), library records included. Henceforth, any request for records must relate to a specific pending investigation and be based upon a narrowly defined “specific selection term” as defined in the law. Accordingly, no longer will the NSA or FBI be able to assert that the search histories of all public access computers are “tangible things” whose production they can lawfully and indefinitely compel as part of an essentially boundless fishing expedition. Nor will agencies be able to continue “bulk collection” under other legal authorities, including National Security Letters, or “PEN register” and “trap and trace” statutes;
- significantly strengthens judicial review of the non-disclosure (“gag”) orders that generally accompany NSLs by eliminating the current requirement in law that a court effectively accept without challenge mere certification by a high-level government official that disclosure of the order would endanger national security. H.R. 2048 also requires the government to initiate judicial review of nondisclosure orders and to bear the burden of proof in those proceedings that they are statutorily justified;
- permits more robust public reporting by companies and others who have received Section 215 orders or NSLs from the government of the number of such requests they’ve processed; and
- requires the secret “FISA Court” that issues surveillance authorities to designate a panel of fully “cleared” expert civil liberties counsel whom the court may appoint to advise it in cases involving significant or precedential legal issues, and to declassify its opinions or summarize them for public access when declassification is not possible. The bill also expands the opportunity for review of FISA Court opinions by federal appellate courts.
As OTI’s “side-by-side” also indicates, H.R. 2048 falls short of last year’s USA FREEDOM Act iteration in several important respects. Most significantly, records collected by the government on persons who ultimately are not relevant to an investigation may still be retained, and reforms affected in last year’s bill to Section 702 of the Foreign Intelligence Surveillance Act Amendments Act are decidedly weaker. The bill also extends expiring portions of the PATRIOT Act, as modified, for five years.
Determining whether ALA should support a particular piece of almost inevitably imperfect legislation turns not only on the content of the legislation (though that naturally receives disproportionate weight in an assessment), but also on the probability of achieving a better result and when such a result might conceivably be obtained. With the change in control of the Senate in 2014 and very high probability that control of the House will not shift for many elections to come, many groups including ALA believe that H.R. 2048 represents the “high water mark” in reform of Section 215 and related legal authorities achievable in the foreseeable future.
The recent landmark ruling by the U.S. Court of Appeals for the Second Circuit noted above was sweeping and clear in some respects, but limited and uncertainty producing in others. Specifically, the Court firmly ruled that the bulk collection of telephone records under Section 215 is illegal. That ruling, however, addressed only the NSA’s bulk collection of “telephony metadata.” It did not directly speak to the bulk collection of any other information, including library records of any kind.
Further, while binding in the states that make up the Second Judicial Circuit (Connecticut, New York, and Vermont), the court’s decision has no precedential effect in any other part of the country. It is also unclear whether the Second Circuit’s decision will be appealed by the government and, if so, what the outcome will be.
Finally, similar decisions are pending in two other federal Courts of Appeal. Should one or both rulings differ materially from the Second Circuit’s, further uncertainty as to what the law is and should be nationally will result. Resolution of such a “split in the Circuits” can only be accomplished through a multi-year appeal process to the U.S. Supreme Court, which is not required to hear the case.
Enactment of the current version of the USA FREEDOM Act would “lock in” the reforms noted above immediately, permanently and nationwide. Accordingly, on balance, ALA and its many coalition allies are supporting the bill and affirmatively urging Members of Congress to do the same.
Finally, and crucially, ALA and its allies have long been and remain fully committed to working for the most profound reform of all of the nation’s privacy and surveillance laws possible. ALA thus regards the USA FREEDOM Act of 2015 as a critical step — the first possible in 14 years — to make real progress toward that much broader permanent goal, but as only a step.
Work in this Congress (and beyond) will continue aggressively to pass comprehensive reform of the badly outdated Electronic Communications Privacy Act and to restore Americans’ civil liberties still compromised by, for example, other portions of the USA PATRIOT Act, Section 702 of the Foreign Intelligence Surveillance Act, Executive Order 12333 and many other privacy-hostile legal authorities.
With our allies at our side, and librarians and their millions of patrons behind us, the fight goes on.