It’s law! The USA Freedom Act, which reauthorizes and privatizes portions of the Patriot Act, is being called a victory for privacy… but it’s not. In this episode, find out all the details of the bill that was signed into law just hours after this episode was recorded, including how it continues bulk data collection and lets the most powerful men in the United States get away with breaking the law.
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H.R. 2048: USA Freedom Act of 2015
Title I: FISA business records reforms
- The government will need to provide “a specific selection term to be used for the basis” for the data being collected
- The term can’t be the name of a telecom, unless that telecom is under investigation
- The term can’t be a “broad geographic region, including the United States, a city, a county, a State, a zip code, or an area code”
- The term must be something that “specifically identifies an individual, account, or personal device.”
- The government will have 180 days to comply after the bill is signed into law
- Limits ongoing phone call record collection to 180 days unless extended
- Orders the telecoms to keep secret the order from the government to turn over call records
- The Attorney General can require records be turned over in “emergencies” if he/she informs a judge and applies for the warrant within 7 days.
- If the warrant is denied, nothing collected under the Attorney General’s emergency power will be admissible in court, “except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person.”
- The Attorney General will be in charge of determining if the standards above are met.
- Eliminates a clause that lets a judge immediately dismiss a protest from a company fighting a FISA order
- Gives immunity to any company that hands over information under a FISA order or an emergency order from the Attorney General
- Companies will be paid for “expenses incurred” producing the information or assisting the government with FISA or emergency orders
- “Call detail record” will not include the contents of the call, the person’s name, address or financial information, or the cell phone’s GPS location.
- The bill expressly says that nothing in the USA Freedom Act will limit the government’s authority to get orders from the secret FISA court, as authorized in by the Foreign Intelligence Surveillance Act of 1978
Title II: FISA pen register and trap and trace device reform
- The Attorney General will get to determine the privacy procedures for the use of tracing devices installed to track phone numbers dialed in monitor Internet communications.
Title III: FISA acquisitions targeting person outside the United States reforms
- “Limits on use of unlawfully obtained information” can be waived if the government fixes whatever illegal thing they were doing, which would allow information they collected before the fix to be used in court.
- Within 180 days after enactment, FISA court judges will pick at least five people to serve as amicus curiae – “friends of the court” – to argue on behalf of privacy and civil liberties.
- The Director of National Intelligence must make publicly available “to the greatest extent practicable” any FISA court decision that includes “a significant construction or interpretation of any provision of law”
- The decision, order, or opinion can be released to the public in redacted form
- The Director of National Intelligence can waive the requirement to make FISA decisions, orders, and opinions public as long as they say it’s “necessary to protect the national security of the United States or properly classified intelligence sources or methods”.
Title V: National Security Letter reform
National Security Letter (NSL): Letters served by the FBI to telecoms that allow the FBI to secretly demand data. There is a gag order on anyone who receives these letters, guaranteeing that the public is not told and that there is no judicial review.
- Allows NSLs to be issued for telephone, financial, and consumer records if the order “specifically identifies a person, entity, telephone number, or account as the basis for a request”.
- There will be a gag order, preventing companies from telling anyone that the FBI is requesting the information, as long as the order also has a notification of the telecoms right to judicial review and if the FBI says disclosure could result in:
- “A danger to the national security of the United States”
- “Interference with a criminal, counterterrorism or counterintelligence investigation”
- “Interference with diplomatic relations” (new)
- “Danger to the life or physical safety of any person”
Title VI: FISA transparency and reporting requirements
- Orders the government to submit a bunch of new reports to Congress
- Allows companies served with National Security Letters to publicly report approximately how many NSLs they’ve received
- They can only report the number of FISA orders and NSLs subject to a gag order to the nearest thousand
- They can only report the number of FISA orders and NSLs not subject to a gag order to the nearest 500.
- They can report twice a year on the total number of orders, directives, and NSLs served to the nearest 250
- These reports are only allowed to cover NSLs for the previous 180 days
- Once a year, they can report on the total number of orders, directives, and NSLs they were required to comply with to the nearest 100
- The FISA court, if their ruling “includes significant construction or interpretation of any provision of law or results in a change of application of any provision of this Act”, will have to submit their decision or denial of disclosure petition to Congress within 45 days
Title VII: Enhanced national security provisions
- Emergency monitoring of a person outside the United States is limited to 72 hours without a warrant
- Extends PATRIOT Act and Intelligence Reform and Terrorism Prevention Act of 2004 provisions until December 15, 2019.
Title VIII: Safety of Maritime Navigation and Nuclear Terrorism Conventions Implementation
- Allows civil forfeiture of property of people suspected of trying to harm a United States ship
- Gives a fine of up to $2,000,000 and possible life in prison to a person who possesses radioactive material or a device with intent to damage people or property or someone who threatens to do so.
Sound Clip Sources
- Hearing: House Judiciary Committee Markup of H.R. 2048 from April 28, 2015
- Senate Floor Proceeding: May 20, 2015
- Senate Floor Proceeding: May 31, 2015, Part 1
- Senate Floor Proceeding: May 31, 2015, Part 2
- Speech: President George W. Bush speaks at Kansas State University, January 23, 2006.
- Television Appearance: President Barack Obama on The Tonight Show with Jay Leno, August 6, 2013.
- Hearing: Director of National Intelligence James Clapper lies to Congress, March 12, 2013.
- Last Week Tonight with John Oliver: HBO, October 5, 2014
Information Presented in This Episode
USA Freedom Act
- Article: White House backs bill that would end NSA bulk collection of phone records by Ellen Nakashima and Mike DeBonis, Washington Post, May 11, 2015.
- Article: House Votes to End NSA’s Bulk Phone Data Collection by Jennifer Steinhauer, New York Times, May 13, 2015.
- Article: House reaches deal on bill to end NSA phone collection by Associated Press, April 30, 2015.
- Article: House Says No To NSA Bulk Data Collection As Fight To End Mass Surveillance Gathers Momentum by Thomas Fox-Brewster, Forbes, May 14, 2015.
- Article: US Congress to vote on bill banning NSA from bulk-collecting phone calls by Spencer Ackerman and Sabrina Siddiqui, The Guardian, May 13, 2015.
Patriot Act Expiring Provisions
- Legal Summary: Section 206 – Roving Surveillance Authority under FISA by Mary DeRosa, American Bar Association.
- Legal Summary: Lone Wolf by Mary DeRosa, American Bar Association.
- Legal Summary: Section 215 – Access to Business Records under FISA (“Libraries Provision”) and Section 214 – Pen Register and Trap and Trace Authority under FISA by Mary DeRosa, American Bar Association.
NSA Surveillance System
- Article: Bush Lets U.S. Spy on Callers Without Courts by James Risen and Eric Lichtblau, New York Times, December 16, 2005.
- Article: The NSA is Building the Country’s Biggest Spy Center (Watch What You Say) by James Bamford, Wired, March 15, 2012.
- Article: The NSA’s New Spy Facilities are 7 Times Bigger Than the Pentagon by Aliya Sternstein, Defense One, July 25, 2013.
- Article: In NSA-intercepted Data, Those Not Targeted Far Outnumber The Foreigners Who Are by Barton Gellman, Julie Tate, and Ashkan Soltani, Washington Post, July 5, 2014.
- Editorial: Meet Executive Order 12333: The Reagan Rule That Lets the NSA Spy on American by John Napier Tye, Washington Post, July 18, 2014.
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