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EFF Opposes Amendments Weakening the USA Freedom Act

DEEPLINKS BLOG
June 2, 2015

On Sunday, the Senate let Section 215 of the Patriot Act expire, and voted 77-17 to move the USA Freedom Act of 2015 forward for consideration. Unfortunately on the next day, Senators Richard Burr and Bill Nelson took to the Senate floor to rail against NSA reform and make it clear that with the help of Senate Majority Leader Mitch McConnell, they intend to weaken the House-passed legislation by introducing amendments to the bill.

We oppose all such amendments making the USA Freedom Act weaker. After the Senate voted last night, McConnell moved quickly to file amendments—and they're not good. What's worse, as the Majority Leader, Senator McConnell has the power to do (and did) what's known as "filling the tree": he filled all available slots for amendments with his own, ensuring that amendments that aimed to strengthen the legislation from privacy-defending Senators Rand Paul and Ron Wyden will not come up for consideration.

The Senate will vote on the amendments and the USA Freedom Act this afternoon.

Here's what Senator McConnell is proposing. These amendments would gut or radically change the USA Freedom Act.

  • Amendment 1449 would require companies to alert the government 180 days before they change their data retention practices to keep phone records for less than 18 months. It would also force the Director of National Intelligence (DNI) to certify that the USA Freedom Act can be implemented without harm to national security or the protection of classified information and classified sources and methods relevant to collection of phone records. 
  • Amendment 1450 would delay the USA Freedom Act's implementation by one year.
  • Amendment 1451 would cripple the already weak amicus provision in the USA Freedom Act by removing the requirement that the FISA Court provide written notice about when and why it chooses not to appoint an amicus, limiting the amicus’s duties to whatever the court assigns (as opposed to the current provision, under which the amicus advocates for privacy and civil liberties), and limiting the amicus’s access to applications, certifications, petitions, and motions at the discretion of the court—meaning that the amicus could be denied access to legal precedent or other relevant materials.
  • Amendment 1452 would not only implement the unnecessary provisions of Amendment 1449 but also remove critical transparency provisions—in particular, the DNI would not need to, as the current USA Freedom Act would require, review significant FISA Court decisions for possible declassification or even release any summaries or new information about them—thus preserving the regime of secret law that has thwarted democratic accountability about U.S. government surveillance of innocent people.

These amendments must be killed. They are either recycled ideas already rejected by the House or poison pills from NSA apologists trying to gut the bill. Many of the amendments address non-issues. The Director of National Intelligence, along with the current and former Attorneys General, already noted they can implement the USA Freedom Act within the current time frame. In a letter sent to Congress all three officials said the USA Freedom Act would not hinder operations, would stop the calling records program, and would be implemented in a timely manner. Senator McConnell's attempt to remove the transparency provisions is an attempt to keep the public in the dark. At a minimum, we've learned that the light must shine on the FISA Court. And any significant or important opinions must be shared with the public in order to have a full debate on what the government is doing with the laws our representatives pass. 

Of course, if H.R. 2048 is changed in the Senate at all, it will have to go back to the House of Representatives for another vote on whether it will accept those changes. The House has been loud and clear: The USA Freedom Act is the final bill and the House will not vote on any changes. It's a point that House Judiciary leaders like Representatives Robert Goodlatte, John Conyers, Jim Sensenbrenner, and Jerrold Nadler have reiterated since overwhelmingly passing the USA Freedom Act in mid-May.

That's why the Senate must oppose all amendments weakening the USA Freedom Act. The bill can not—and should not—be made any weaker.

 

 

 

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