The “Patriot” Act vs “Freedom” Act Shell Game

The US Senate is poised to pass the USA Freedom Act now that major surveillance powers vested in the USA Patriot Act have expired. The House-passed bill, representing a slightly less intrusive spying law, will come to a vote on Tuesday. ….

The USA Freedom Act would move the responsibility of holding phone records to private companies. Intelligence agencies like the NSA would then ask the companies for specific data on an individual allegedly connected to a terror group or foreign nation.

The Act also requires heightened transparency measures associated with government data searches, and it would allow tech companies to be more forthcoming regarding how many times they are tapped for data by government agencies. The bill also offers more access to case opinions made by judges of the secretive Foreign Intelligence Surveillance Court, which has oversight over surveillance of suspects overseas.

Many in opposition to the Patriot Act say the USA Freedom Act is not a meaningful check on government spying capabilities. A leading critic of government surveillance in the US House, Rep.Justin Amash (R-Mich.) described the Freedom Act as a “step in the wrong direction by specifically authorizing such collection in violation of the Fourth Amendment.”

Others have pointed out that the USA Freedom Act will not address other surveillance powers the government can employ. Should the Senate approve the reform bill, “it’ll be suspicionless spying as usual until the next big surveillance provision, section 702 of the FISA Amendments Act sunsets at the end of 2017,”said Jennifer Granick, director of Civil Liberties at the Stanford Center for Internet and Society.

Edward Snowden revealed the government uses Section 702 of the FISA Amendments Act to authorize digital surveillance on foreign persons, which, tech experts say has involved exploiting security weaknesses on behalf of the government and, as a result, secretly undermining the protocols meant to protect online activity.

“Section 702 of the FISA Amendments Act conceals some of the worst mass surveillance operations,” he said recently. “In basic terms, the government here prefers to ignore that the 4th Amendment prohibits not just the unwarranted search of private records, but also the initial seizure of them as well. I suspect that’s likely to haunt not only them, but all of us as well.”

Snowden also pointed to Executive Order 12333, signed by President Ronald Reagan in 1981, which requires government agencies to comply with data requests made by the CIA. He said the order, which has been used to justify the collection of unencrypted material, is a “skeleton in the closet,” but that changing it will be difficult “because the White House argues these operations are simply above the law and cannot be regulated by congress or the courts.”

Several civil liberties advocates are strictly opposing the USA Freedom Act because it does not go far enough in curbing unchecked surveillance.

“The sacrifices made by the USA FREEDOM Act of 2015 are unacceptable,” wrote several groups and intelligence community whistleblowers in a letter urging a vote against the reform bill.

“The modest changes within this bill, in turn, fail to reform mass surveillance, of Americans and others, conducted under Section 702 of the FISA Amendments Act of 2008 and Executive Order 12333. Given intelligence agencies’ eagerness to subvert any attempts by Congress to rein in massive surveillance programs by changing the legal authorities under which they operate, the modest, proposed changes are no reform at all.”

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