Just last week, Congress passed the USA FREEDOM Act in light of the Patriot Act’s recent expiration. The bill, which aims to “increase transparency and improve accountability of surveillance agencies” (accessnow.org), has prompted mixed reactions from digital freedom advocates like Access and the Electronic Frontier Foundation.
Here are some of the highlights that civil libertarians are celebrating:
- No more metadata phone records. Under the new domestic surveillance bill, NSA will no longer be able to collect phone call records in a broad and indiscriminate manner. Instead, these records will be kept by phone companies and will only be accessed by the government upon request, if there is “reasonable articulable suspicion” of terrorist activity. This inquiry will be done through “specific selection terms.” Though this language is conveniently vague, it counts as an added step meant to limit the scope of data collection.
- Declassified FISA court decisions. The law also includes reforms to the Foreign Intelligence Surveillance Act. The FISA court is now required to declassify court decisions considered “significant” by the Director of National Intelligence. The same individuals who take issue with the ambiguity of the phrase “specific selection terms” also question the use of the word “significant.”
- Civil liberties advocacy position. The FISA Court will appoint five amicus curiae from a list of recommended individuals who will represent the digital privacy concerns of the public. They will be able to appeal specific court decisions if deemed inappropriate.
- Private companies can report NSA demands. Private telecommunications companies and Internet providers are now allowed to publicly disclose the number of surveillance demands they receive from the government. They are also allowed to report how many individuals’ information was requested.
Still, critics are wary of the amount of wiggle room left for federal officials in the new surveillance law:
- Section 702. The USA FREEDOM Act does not include amendments to the ever-unpopular Section 702 of the FISA Amendments Act. Activists argue that the NSA uses the section as a loophole to illegally and unconstitutionally access content of digital communications without a warrant. This includes exchanges on Facebook, emails, instant messages, and browsing history, among others.
- Executive Order 12333. This order was also left unchanged and currently allows the NSA to collect information from outside the United States, from both foreigners and U.S. citizens.
Critics question the real impact that the law will have on the electronic privacy of Americans who have nothing to do with international terrorist organizations. The USA FREEDOM Act is largely seen as a very small step in the right direction. Still, a step is a step. The law’s enactment demonstrates legislators’ responsiveness to their people’s concerns and a willingness to negotiate. As of yet, the exact location of the fine line between a national security concession and civil liberty infringement is still up for heated debate.