USA FREEDOM ACT: A Bipartisan Compromise the Senate Must Pass
WASHINGTON (Saturday, May 16, 2015) – The Republican-led House voted overwhelmingly this week in favor of the USA FREEDOM Act, a bipartisan compromise that restores Americans’ privacy rights by ending the government’s dragnet collection of phone records under Section 215 of the USA PATRIOT Act.
While the bill has the support of intelligence leaders, the administration, the technology industry, and privacy advocates, Senate Republican leaders are instead pushing for an extension of the National Security Agency’s surveillance program with no reforms. A three-judge panel of the Second Circuit Court of Appeals unanimously found that the NSA’s bulk collection of Americans’ phone records was unlawful, and goes beyond what is authorized under Section 215 of the PATRIOT Act. In the last several years, the President’s Review Group on Intelligence and Communications Technologies and the Privacy and Civil Liberties Oversight Board (PCLOB) concluded the bulk collection program is not essential to maintaining national security.
With the intelligence community facing a crucial June 1 deadline for when three sections of the Foreign Intelligence Surveillance Act are set to expire, the Senate must act next week to pass the USA FREEDOM Act.
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Correcting the Record
On Bulk Collection Under Section 215
RHETORIC: The NSA’s Section 215 bulk collection program is lawful.
REALITY: The only federal appellate court to rule on this issue concluded that the program violates the law, as did a district court judge and the Privacy and Civil Liberties Oversight Board (“PCLOB”).
- On May 7th, a three-judge panel from the Second Circuit unanimously concluded that the NSA’s bulk collection program is illegal. [ACLU v. Clapper, May 7, 2015.]
- Another federal judge previously held that the NSA’s program likely violates the First and Fourth Amendments. [Klayman v. Obama, Dec. 16, 2013.]
- The PCLOB also concluded that the program “lacks a viable legal foundation under Section 215” and “implicates constitutional concerns under the First and Fourth Amendments.” [PCLOB Report, pg. 16.]
RHETORIC: The NSA’s program is vital to protecting our national security.
REALITY: The program has only been uniquely valuable in one instance, and it did not involve thwarting a terrorist “plot.”
- At Judiciary Committee hearings, intelligence officials confirmed that the NSA program was only uniquely valuable in one instance, which was not a terrorist plot. It involved the case of a Somali cabdriver who was convicted of material support for sending roughly $8,000 to al-Shabaab. [SJC hearings, 7/31/13, 12/11/13]
- The President’s Review Group and the PCLOB both concluded that the NSA program has not been essential to thwarting terrorist attacks and is not essential for our national security. [President’s Review Group Report; PCLOB Report]
- The PCLOB Report stated: “We have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” [PCLOB Report, pg. 11.]
RHETORIC: The NSA’s phone records program would have prevented the 9/11 attacks.
REALITY: Experts have concluded that a mass repository of Americans’ telephone records was not what was needed to prevent 9/11.
- Richard Clarke, a senior counter-terrorism official in the Bush administration at the time of the 9/11 attacks, was asked during a Senate Judiciary Committee hearing whether the NSA program would have prevented 9/11. He testified that the government had all the information it needed to prevent the attacks, but failed to properly share that information. [SJC hearing, 1/14/14]
- Senator Bob Graham, who investigated the 9/11 attacks as head of the Senate Intelligence Committee, said that “there were plenty of opportunities without having to rely on this metadata system for the FBI and intelligence agencies to have located (9/11 hijacker) Mihdhar.” [ProPublica, 12/28/13]
- The 9/11 Commission report and numerous national security experts, including Peter Bergen, have emphasized that the government had all the information it needed to stop 9/11, but failed to act on intelligence it already had.
RHETORIC: There have been no intentional violations of Americans’ privacy under the current NSA Section 215 program.
REALITY: The FISA Court frequently admonished the government for systematically violating court-ordered privacy protections.
- The NSA has repeatedly failed to abide by the privacy protections imposed by the FISA Court, including those related to the Section 215 phone records program. These repeated violations led to several reprimands from the FISA Court for “frequently and systematically violat[ing]” court-ordered protections. The court has also admonished the government for making a series of substantial misrepresentations to the court. [2009 FISC Opinion]
- In 2009, then-FISA Court Judge Reggie Walton wrote that that the court’s authorization for the NSA program from its inception in 2006 to January 2009 was “premised on a flawed depiction of how the NSA uses metadata” and that this misperception was “buttressed by repeated inaccurate statements made in the government’s submissions.” [2009 FISC Opinion]
- There have also been serious cases of intentional misuse in other NSA programs, including use of surveillance tools to spy on potential love interests. [Washington Post, 8/24/13]
RHETORIC: If the USA FREEDOM Act were to become law, the telecom providers are ill-equipped to handle Americans’ information.
REALITY: Telecom companies already collect and retain Americans’ call detail records for their own business purposes, and regularly respond to other government requests.
- Major carriers regularly respond to thousands of law enforcement and national security requests a year. They have staff with security clearances to handle sensitive national security requests – including far more sensitive targets than those subject to these types of phone records requests.
RHETORIC: The NSA’s use of Section 215 is similar to what can be obtained through grand jury subpoenas.
REALITY: The Second Circuit explicitly rejected that analogy, stating that “no grand jury subpoena … is remotely comparable to the real-time data collection undertaken under [the NSA] program.” [ACLU v. Clapper, May 7, 2015.]
- Grand jury subpoenas are constrained by the contours of a specific criminal investigation. They contain time and subject-matter limitations, and may be challenged in court for being overly broad. Traditional grand jury subpoenas do not allow for on-going, indiscriminate collection of private records without any limiting principle or connection to a specific investigation.
David Carle: 202-224-3693
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