Photo Credit: Boundless Informant[1]

(Map indicating the amount of data the NSA collects worldwide.  Red indicates that a country is most subject to surveillance while green indicates that a country is least subject to surveillance.  The USA FREEDOM Act responds to the practice of collecting the private data of Americans.)

By James N. Hendershot

As of November 2013, the world continues to deal with the fallout from leaks by former National Security Agency (NSA) contractor Edward Snowden. The leaks revealed the NSA’s collection of telephone metadata from citizens in the United States and individuals abroad, as well as the use of the PRISM program which enables the NSA to access servers of some of the  largest U.S. tech companies, including Apple, Google, and Microsoft.

On October 29, 2013, in response to these revelations and American public outrage, Representative Jim Sensenbrenner (R-Wisc.), a drafter of the USA PATRIOT Act of 2001, and Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced a bill aimed at curtailing the National Security Agency’s ability to collect records under the PATRIOT Act.  The official name of this bill is the “Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet- collection, and On-line Monitoring Act,” or the “USA FREEDOM Act.” According to Congressman Sensenbrenner’s website, the bill aims to (1) limit the dragnet collection of data by United States government agencies, (2) increase the transparency of the Foreign Intelligence Surveillance Court (FISC), (3) create a special advocate to counterbalance any agency petitioning the FISC for permission to conduct surveillance, and (4) permit businesses to release information regarding FISC requests.

The FREEDOM Act limits the dragnet collection of data by amending the Foreign Intelligence Surveillance Act of 1978 (FISA) (50 U.S.C. 1801 et seq.). However, Section 215 of the PATRIOT Act amended FISA by permitting the Federal Bureau of Investigation (FBI) to apply for a court order requiring the production of “tangible things,” including books, records, papers, documents, and other items, which would aid in obtaining foreign intelligence information or to protect against international terrorism. The NSA employed this provision of the PATRIOT Act to justify the collection of millions of Americans’ phone metadata.

The FREEDOM Act seeks to end the bulk collection of metadata under Section 215 of the PATRIOT Act and adjust the procedure for a request for “tangible things” in several ways. For instance, the Act would forbid government employees from searching through collections of communication records in order to find the communications of an individual citizen. However, this prohibition does not specifically include the communications of corporations. The FREEDOM Act would also impose additional requirements that an agency must satisfy in the case that FISA’s nondisclosure provisions apply to a document request. An agency must show that nondisclosure is narrowly tailored to avoid a harm specifically defined in the Act. The FREEDOM Act further limits any nondisclosure order’s operation to one year unless the facts justify a longer period of nondisclosure.

The bill would also strengthen the prohibition of “reverse targeting” of Americans. This refers to the practice of targeting a foreigner for the purpose of obtaining an American’s communications. The bill would prohibit the intentional targeting of a person reasonably believed to be located outside the United States if a “significant purpose” of the acquisition was to target a particular known person believed to be in the United States. Previously, reverse targeting was only prohibited if the sole purpose of the targeting was to target a particular known person in the United States. Finally, the bill would require the government to more aggressively filter and discard information about Americans accidentally collected through PRISM and related programs.

The FREEDOM Act also seeks to increase transparency in the collection of surveillance data.  It would “end” secret laws by requiring the Attorney General to publicly disclose all FISC decisions issued after July 10, 2003.  The act would also allow Internet and telecom companies to publicly report an estimate of the number of demands for data, the number of such orders complied with, and the number of accounts on whom data was demanded. Under the act, the government would make annual or semiannual public reports estimating the total number of individuals and United States citizens’ that were subject to FISA orders authorizing electronic surveillance, pen/trap devices, and access to business records.  The FREEDOM Act would further adopt a single standard for Section 215 and National Security Letter protection to ensure the government does not use different authorities to support bulk collection.

Significantly, and most importantly, the FREEDOM Act would also reform operations of the FISC in several ways. The FREEDOM Act would create an Office of the Special Advocate (OSA) tasked with promoting privacy interests before FISC court’s closed proceedings. The OSA would have the authority to appeal the decisions of FISC. The FREEDOM ACT would also create new and more robust reporting requirements to ensure that Congress is aware of actions by FISC and the broader intelligence community. The FREEDOM Act would also grant the Privacy and Civil Liberties Oversight Board the authority to investigate issues related to privacy and national security.

Fundamentally, the FREEDOM Act aims to reverse the recent cancerous developments of the NSA data collection scheme by means of increased oversight at certain key points in the lifetime of a data request by the NSA.  The provision creating the Office of the Special Advocate in the FISC is the keystone in the bill’s framework of reform. After all, the supporters of the PATRIOT Act, such as Representative Jim Sensenbrenner, have said that they never intended the PATRIOT Act to serve as the justification for the mass collection of Americans’ phone metadata—and yet the PATRIOT Act did just that. Thus, the USA FREEDOM Act tweaks the language of FISA, but does not completely overhaul it. However, what is to prevent the FISC from interpreting the USA FREEDOM Act’s proposed safeguards as meaningless bureaucratic hoops? The answer is the Office of the Special Advocate.

Currently, the FISC hears an agency making a request for a document ex parte. That is, the court does not operate under an adversarial model. Instead, the court hears the requesting agency’s argument without a counterargument from another party. The court essentially sits with only one of two ethereal advisors upon its shoulders. Without a countervailing voice to argue for privacy rights, it is not difficult to see how a court could repeatedly grant successive document requests which progressively trespass on the rights of Americans. I would not attribute the failure of the FISC to protect privacy rights to the actions of malevolent Americans or agencies. Instead, the problem derived from an ex parte court process which only heard arguments in favor of national security.

Therefore, a fully funded and independently-minded Office of the Special Advocate would provide a necessary counterbalancing voice. For instance, let us assume that the NSA would petition the FISC for permission to gather such metadata. The OSA would argue that the FREEDOM Act prohibits the collection of metadata, and in any case, prohibits a government employee for scouring collected data for individual information. Let us further assume that the FISC grants the application for collection of data. At this point, the OSA would appeal the decision to the Foreign Intelligence Surveillance Court of Review. The Court of Review would then examine whether the FREEDOM Act authorized the collection of bulk records, not limited in any way by the FISC’s determination, as the inquiry would be a question of law. However, if the Court of Review upholds the decision of the FISC, the OSA could then appeal the decision to the United States Supreme Court. Although a Supreme Court oral argument on a matter does not itself guarantee the law will favor privacy, the publicity from such a case would raise political awareness of the FISC proceedings, if nothing else.

Changes to the statutory language of the FISA alone are not sufficient to protect the privacy rights of Americans. Without a champion for the cause of privacy before the FISC, it is only a matter of time before another Edward Snowden reveals widespread invasions of Americans’ privacy rights. Therefore, the Achilles heel of the USA FREEDOM Act would be an underfunded, incompetent, or politically dependent Office of the Special Advocate. Without an effective voice for privacy rights, the FISC could render meaningless the new safeguards of the USA FREEDOM Act.  If Congress passes the USA FREEDOM Act, it must forge a well-staffed, fully-funded, and politically independent OSA to ensure that the Act protects the American right to privacy to the fullest extent possible.

James N. Hendershot is third year law student at Penn State’s Dickinson School of Law.  He serves as a senior editor of the Penn State Journal of Law and International Affairs.