May 20, 2014 | By Mark Jaycox and Nadia Kayyali and Lee Tien

EFF Dismayed by House's Gutted USA FREEDOM Act

EFF and Other Civil Liberties Organizations Call on Congress to Support Uncompromising Reform

Since the introduction of the USA FREEDOM Act, a bill that has over 140 cosponsors, Congress has been clear about its intent: ending the mass collection of Americans' calling records. Many members of Congress, the President's own review group on NSA activities, and the Privacy and Civil Liberties Oversight Board all agree that the use of Section 215 to collect Americans' calling records must stop. Earlier today, House Leadership reached an agreement to amend the bipartisan USA FREEDOM Act in ways that severely weaken the bill, potentially allowing bulk surveillance of records to continue. The Electronic Frontier Foundation cannot support a bill that doesn't achieve the goal of ending mass spying. We urge Congress to support uncompromising NSA reform and we look forward to working on the Senate's bipartisan version of the USA FREEDOM Act.

Passing the bill out of the Judiciary Committee for a vote on the House floor is an important sign that Rep. Bob Goodlatte, Rep. Jim Sensenbrenner, and other leaders of the House are engaging in a conversation over NSA reform. We are glad that the House added a clause to the bill clarifying the content of communications cannot be obtained with Section 215. Unfortunately, the bill's changed definitions, the lack of substantial reform to Section 702 of the Foreign Intelligence Surveillance Amendments Act, and the inability to introduce a special advocate in the FISA Court severely weakens the bill.

In particular, we are concerned with the new definition of "specific selection term," which describes and limits who or what the NSA is allowed to surveil. The new definition is incredibly more expansive than previous definitions. Less than a week ago, the definition was simply "a term used to uniquely describe a person, entity, or account.” While that definition was imperfect, the new version is far broader.1 The new version not only adds the undefined words "address" and "device," but makes the list of potential selection terms open-ended by using the term "such as." Congress has been clear that it wishes to end bulk collection, but given the government's history of twisted legal interpretations, this language can't be relied on to protect our freedoms.

Further, the bill does not sufficiently address Section 702 of the Foreign Intelligence Surveillance Amendments Act. We are specifically concerned that the new language references "about" searches, which collect and review messages of users who do not even communicate with surveillance targets.Congress must include reforming Section 702 in any NSA reform. This includes stopping the NSA from searching illegally collected Americans' communications, stopping the suspicionless "about" surveillance, and ensuring companies can report on the exact number of orders they receive and the number of users affected.

We are encouraged by Senator Leahy's commitment to continue with the more comprehensive version of the USA FREEDOM Act over the summer and look forward to working towards NSA reform in the Senate.

  • 1. The bill reads “(2) Specific selection term.—The term ‘specific selection term’ means a discrete term, such as a term specifically identifying a person, entity, account, address, or device, used by the Government to limit the scope of the information or tangible things sought pursuant to the statute authorizing the provision of such information or tangible things to the Government.”

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