Often in Congress, the most patriotic-sounding bills contain the most harmful legislation.
Consider, for example, the Protect America Act of 2007, which actually removed the warrant requirement for government surveillance of foreign intelligence targets.
Or how about the Patient Protection and Affordable Care Act? I think we’re all familiar with Obamacare at this point.
Well, the tastefully named USA Freedom Act – which passed the House of Representatives last week by a 303-121 vote – is no exception to this rule.
The Act is meant to curtail the NSA’s extensive phone surveillance scheme and put an end to the agency’s mass data collection.
And at first, it had the unequivocal support of both Congress and privacy advocates alike.
But the bill was modified at the 11th hour, and privacy advocates say that the amended version does nothing to stop the NSA from continuing to operate with impunity.
A Matter of Semantics
The overarching goal of the Freedom Act is to take bulk phone data out of the NSA’s hands.
Instead of giving the NSA free rein over phone data records, those records will now stay in the hands of telecom companies. In order to search the records, the security agency will have to obtain a judicial order.
But the Obama administration pressured leaders in the House to water down the bill, and a few key changes were made to the wording.
One such change, according to the New America Foundation’s Open Technology Initiative, allows the Director of National Intelligence to lead declassification reviews, rather than the Attorney General.
I imagine it’s not too difficult to guess which way the Director will lean in most reviews…
Unfortunately, that’s not the only change that favors the spy agency.
The most deceptive has to do with the “selector terms” – the terms that the NSA will use when defining the scope of its data request. In the original version of the bill, these terms were highly specific. But in the amended version, the wording was changed to something far more ambiguous.
Originally, a selection term was “a term used to uniquely describe a person, entity, or account.”
But the amended bill says that a selection term is “a discrete term, such as a term specifically identifying a person, entity, account, address, or device.”
The differences may seem minute, but in fact, they’re monumental. The bill that passed the House includes two more categories (address and device) and broadens the search possibilities from specific items to things such as those items.
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As Zoe Lofgren, a member of the House Judiciary Committee, said, “If we leave any ambiguity at all, we have learned that the intelligence community will drive a truck through that ambiguity.”
Without pulling any punches, Lofgren said that the bill “will actually not end bulk collection, regrettably.”
And it’s not just politicians who are skeptical of this particular change to the USA Freedom Act. Reform Government Surveillance, a conglomerate of Silicon Valley tech companies including Apple (AAPL), Google (GOOGL) and Facebook (FB), called the change to the selector terms an “unacceptable loophole that could enable the bulk collection of internet users’ data.”
On the bright side, the Senate has vowed to be extremely tough on the bill as it passes through their chamber. Sen. Saxby Chambliss, the top Republican on the Intelligence Committee, said he’d be proposing “lots of modifications.”
For Americans who are concerned about privacy, this is the last line of defense against a bill that fails to curb the NSA’s extensive power. Here’s to hoping that the Senate is ready to go to bat for privacy.
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