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Leahy Bill Aims to Rein In Government Snooping

Leahy Bill Aims to Rein In Government Snooping

The USA Freedom Act could represent the best chance yet for meaningful reforms in U.S. government surveillance practices. "[Sen. Patrick] Leahy's bill is not intended to cover every national security surveillance problem," said CDT Senior Counsel Harley Geiger. "It's focused on domestic mass surveillance, FISA Court reform and transparency. These are worthy reforms."

By John P. Mello Jr. TechNewsWorld ECT News Network
07/30/14 12:26 PM PT

Government snooping on Americans would be curtailed under a bill introduced Tuesday in the U.S. Senate.

The measure, sponsored by Senate Judiciary Chairman Patrick Leahy, D-Vt., would ban bulk collection of domestic information, limit the scope of searches by government agencies, and add transparency and reporting requirements. Further, it would reform procedures of the FISA Court, which oversees requests for surveillance warrants against suspected foreign intelligence agents inside the United States.

Because of the urgency of the measure, Leahy said he was expediting action on the bill and bringing it directly to the Senate floor.

"The stakes are high," Leahy told his fellow senators as he introduced the bill.

"This is a debate about Americans' fundamental relationship with their government -- about whether our government should have the power to create massive databases of information about its citizens," he said.

"We need to get this right, and we need to get it done without further delay," Leahy urged.

Ducks in a Row

Leahy's bill is a revamped edition of a House measure passed in May. The House legislation received heavy criticism from privacy groups, the technology industry, and even some of its House sponsors.

"The Senate bill is unquestionably better than the House version," Alan Butler, appellate advocacy counsel for the Electronic Privacy Information Center, told TechNewsWorld.

"It puts back in what the House took out of the original bill," he said. "The House diluted a lot of privacy protections in the original bill."

Although it's difficult to pass anything in Congress these days, it appears that Leahy has all his ducks in a row. Even the sponsor of the House measure is supporting the new USA Freedom Act.

"Today, Chairman Leahy introduced a compromise that strengthens the privacy protections of the House bill while retaining support from the Administration and intel community," Rep. F. James Sensenbrenner Jr., R-Wis., said in a statement.

"By reclaiming important provisions stripped from our original bill, tech giants and privacy advocates have reestablished their support," he added. "I hope the Senate works expeditiously to pass the USA Freedom Act and eagerly await the President signing it into law."

Rights Recoup

Should Leahy's bill becomes law, it not only would be the most significant action to control snooping by government spooks in 30 years, but also would reclaim rights lost in the post 9-11 era.

"If the Senate passes the bill, it will be the first time since passage of the Foreign Intelligence Surveillance Act in 1978 that the chamber has taken action to constrain the intelligence community, and the first time Congress has a real shot at restoring the crucial privacy protections lost in the Patriot Act," wrote American Civil Liberties Union's Neema Singh Guliani in a blog post.

Leahy's bill would end the bulk collection of information on Americans and limit the government's ability to perform "dragnet surveillance" under the Patriot Act. It would accomplish that for some programs by limiting information to an explicit list of "Specific Selection Terms" and in other programs by placing narrow limits on SSTs.

The Senate legislation also requires the FISA Court to release opinions -- or at a minimum, relevant information about its important rulings.

Good but Imperfect

That is a weakness in the bill, said Joel R. Reidenberg, founding academic director of the Center on Law and Information Policy at the Fordham University School of Law.

"It still allows for secret FISA court decisions," he told TechNewsWorld.

"The decision for releasing court opinions rests with the executive branch. The director of national intelligence and the Attorney General get to make a decision whether or not an opinion will be released," Reidenberg explained.

"They have to consider releasing, but there's an awful lot of room for the executive branch to conceal judicial opinions on the legality of what they're doing," he added. "That's a troubling situation that would remain the same under this law."

In addition, the proposed law allows judges on the FISA Court to appoint an advocate to argue against government action during proceedings before them. Although appointing an advocate isn't required, judges are required to report on how often they don't appoint advocates in cases before the court.

"We think this is a really big change," Nadia Kayyali, an activist with the Electronic Frontier Foundation, told TechNewsWorld.

The bill recommends advocates be appointed in cases involving significant interpretations of the law, including the use of SSTs.

"That's important, because the government likes to play word games when it comes to surveillance," Kayyali said.

A number of notable issues aren't addressed in the bill. For example, information about Americans swept up in surveillance dragnets outside the United States remains unprotected, and freewheeling surveillance under Executive Order 12333 is untouched by the bill.

"Leahy's bill is not intended to cover every national security surveillance problem," Harley Geiger, senior counsel for the Center for Democracy & Technology, told TechNewsWorld.

"It's focused on domestic mass surveillance, FISA Court reform and transparency, " he said. "These are worthy reforms."


John Mello is a freelance technology writer and contributor to Chief Security Officer magazine. You can connect with him on Google+.


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