Posted September 22, 2014, 3:59 PM
Fight for the Future is proud to join civil liberties advocates, organizations from across the political spectrum, and whistleblowers like Daniel Ellsberg in urging members of Congress to oppose the NSA reform bill known as the USA FREEDOM Act (S. 2685). Last week, our coalition sent the following letter to members in the House and Senate.
The letter (PDF) was signed by whistleblowers William Binney, Thomas Drake, Daniel Ellsberg, Mark Klein, Edward Loomis and J. Kirk Wiebe, as well as Campaign for Liberty, CREDO Action, Emptywheel, Fight for the Future, Firedoglake, OffNow, Participatory Politics Foundation, Progressive Change Campaign Committee, Progressive Change Institute, Restore The Fourth, RootsAction.org, Sascha Meinrath, Tenth Amendment Center, The Rhode Island Coalition to Defend Human and Civil Rights, The Sunlight Foundation and ThoughtWorks.
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Dear Members of Congress,
We, the undersigned civil liberties advocates, organizations, and whistleblowers, are alarmed that Senator Leahy’s recently introduced bill, the USA FREEDOM Act (S. 2685), legalizes currently illegal surveillance activities, grants immunity to corporations that collaborate to violate privacy rights, reauthorizes the PATRIOT Act for an additional 2.5 years, and fails to reform EO 12333 or Section 702, other authorities used to collect large amounts of information on Americans. For these reasons, we encourage both the House and the Senate to oppose this legislation in its current form.
Governmental security agencies’ zeal for collecting Americans’ personal information without regard for cost, efficacy, legality, or public support necessitates that Congress act to protect the rights of residents across the United States and around the globe. Our fundamental civil rights – the human rights we hold dear – are not adequately protected by either the Senate or House versions of the USA FREEDOM Act.
The reckless actions of top officials charged with ensuring national security – from lying to Congress to secretly weakening security standards to hacking the communications of our allies – has undermined global confidence that the United States can act as an ethical Internet steward. The 11th-hour gutting of the USA FREEDOM Act in the House of Representatives and the CIA’s recent illegal spying on the U.S. Senate underscore just how powerful and out of control this surveillance regime has become. Time and again, these agencies have relied on aggressive manipulation of legal loopholes to thoroughly undermine safeguards and checks and balances.
As just one example of why clarity in law is now necessary, the collection of information on all domestic phone calls was justified under the “relevancy” standard in the PATRIOT Act. The NSA claimed that all domestic telephone metadata records were “relevant” to ongoing terrorism investigations and therefore legally collectible. This absurd interpretation – that everyone’s calls were relevant and no probable cause was needed – was then rubber-stamped by a secret court in an ex parte hearing. Such secret law is repugnant to the Fourth Amendment and the plain meaning of the legal authorities on which the Intelligence Community has relied.
The USA FREEDOM Act (S. 2685) also contains ambiguities that are ripe for abuse:
The bill does not define “direct connection” in the new Call Detail Record provision of Section 215. This may permit the government to access the data from Americans’ smart phones through telecommunication providers, which the USA FREEDOM Act immunizes from customer lawsuits. This would be an expansion of the NSA’s current authority.
S. 2685 fails to substantially rein in surveillance, and stops short of establishing adequate oversight:
S. 2685 fails to protect against future privacy invasions of innocent people. At a minimum, meaningful privacy safeguards should:
Congress must narrowly and unambiguously define the Intelligence Community’s surveillance authority. Sen. Leahy’s USA FREEDOM Act fails this basic test, and is not the substantive reform originally envisioned and supported by the public.
Indeed, the USA FREEDOM Act has significant potential to degrade, rather than improve, the surveillance status quo. At best, even if faithfully implemented, the current bill will erect limited barriers to Section 215, only one of the various legal justifications for surveillance, create additional loopholes, and provide a statutory framework for some of the most problematic surveillance policies, all while reauthorizing the PATRIOT Act. Given the several broad legal authorities claimed as justifications for mass surveillance of United States persons and non-United States persons, it remains unclear if the Senate’s USA FREEDOM Act would end any of the Intelligence Community’s clandestine programs to surveil Americans.
For these reasons, we call on the House and the Senate to reject this version of the USA FREEDOM Act. As long as S. 2685 contains ambiguous language that can be abused by the Intelligence Community and lacks language that clearly protects innocent Americans, we believe that focusing on USA PATRIOT Act reauthorization next year, remedies in the courts, aggressive confirmation hearings for personnel, and defunding of Intelligence Agencies are more constructive paths forward.
Campaign for Liberty
Fight for the Future
Participatory Politics Foundation
Progressive Change Campaign Committee
Progressive Change Institute
Restore The Fourth
Tenth Amendment Center
The Rhode Island Coalition to Defend Human and Civil Rights
The Sunlight Foundation
J. Kirk Wiebe