Surveillance-limiting USA Freedom Act fails to clear Senate

The U.S. Senate has blocked the USA Freedom Bill by giving it two votes fewer than it needed to pass. The bill would have ended the bulk collection of phone records and internet metadata within the U.S., so that’s a real shame – such collection amounts to a form of mass surveillance.

On the other hand, it would also have extended Section 215 and certain other provisions of the Patriot Act, the post-9/11 legislation that underpins much of both domestic and foreign surveillance, beyond their June 1, 2015 expiry date. These provisions lets U.S. authorities demand that carriers and companies such as Facebook and Twitter hand over their business records in secret, obtain surveillance orders that don’t identify the target, and secretly spy on foreigners within U.S. borders. So that’s less of a shame – by the analysis of some, including Jim Sensenbrenner, the USA Freedom Act’s co-author, it’s unlikely that Congress will renew these provisions without significant changes.

Whereas authorities in countries such as the U.K. openly collect everyone’s communications records in order to keep an eye on citizens – and dig up journalists’ sources — the deployment of such practices in the U.S. remained pretty secretive until the first NSA revelations in June 2013 via whistleblower Edward Snowden. The first version of the USA Freedom Act was introduced in October of that year, after Snowden’s cache revealed many more secrets about surveillance of Americans and foreigners.

As my colleague Jeff Roberts noted a couple of weeks back, the victory of the Republicans in the 2014 mid-term elections suggested that the USA Freedom Act (a fresh attempt, after the first version got heavily watered down) might founder, particularly as one of its Senate champions, Mark Udall (D-Co.), lost his seat.

It seems a last-minute plea by tech heavyweights, such as [company]Microsoft[/company], [company]Apple[/company], [company]Google[/company] and [company]Facebook[/company], didn’t work — bear in mind that these companies are all experiencing widespread (and well-founded) foreign mistrust. The endorsement of President Barack Obama also failed to help.

Bill co-author Senator Patrick Leahy (D-Vt.) said in a Tuesday statement that Senate Republicans had “reverted to scare tactics rather than to working productively to protect Americans’ basic privacy rights and our national security.” Leahy also pointed out that, while the vote failed, “it was the Senate’s strongest showing of support for a major reform in recent years.”

“I am disappointed by tonight’s vote, but I am not new to this fight,” he said. “Over the past decade, I have consistently opposed extending USA Patriot Act and FISA Amendments Act sunsets without including meaningful reforms. I have fought the status quo every step of the way in these efforts, but the broad coalition we have built in favor of the USA Freedom Act shows that we are gaining ground.”

The Electronic Frontier Foundation (EFF), which had given Leahy’s bill somewhat tentative support, also said it was disappointed that the Senate had blocked the USA Freedom Act, which would have been “a good start for bipartisan surveillance reform.”

The EFF noted that the Senate could still pass the Act in the remainder of the current legislative session, and argued that “future reform must include significant changes to Section 702 of the Foreign Intelligence Surveillance Amendments Act, to the operations of Executive Order 12333, and to the broken classification system that the executive branch counts on to hide unconstitutional surveillance from the public.”

Though people tend to downplay the role of international law, I think it’s worth pointing out that successive United Nations reports have slammed the bulk collection of communications records and other metadata as unacceptable mass surveillance that stands contrary to established privacy rights. A draft UN resolution introduced earlier this month by Germany and Brazil would make this clear. It would also be nice if U.S. legislation recognized that foreigners also have a right to privacy, as international law forbids such discrimination in the application of human rights.