Pressure for Surveillance Overhaul To Continue, Despite New Curbs on NSA

Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...

By Alexei Alexis

June 3 — Emboldened by passage of the USA FREEDOM Act (H.R. 2048), technology groups and privacy advocates plan to continue pushing for surveillance changes that were excluded from the new law.

The USA FREEDOM Act, cleared by Congress June 2 and signed by President Barack Obama the same day, overhauls National Security Agency surveillance activities exposed by Edward Snowden.

“This is the most significant surveillance reform measure in the last generation,” Harley Geiger, deputy director on surveillance and security for the Center for Democracy & Technology, told Bloomberg BNA June 3. “It's definitely a great first step, but it still doesn't solve many problems.”

H.R. 2048 reauthorizes and places new limits on Section 215 of the USA PATRIOT Act, which has served as the legal basis for the NSA's bulk collection of U.S. telephone company customer records. The law bans the government from engaging in bulk data collection. It also revamps the NSA call-data program by shifting record-retention responsibilities to the phone companies, while allowing government access to continue, with close supervision by the secret Foreign Intelligence Surveillance Court (FISC).

No Impact on PRISM Program 

The statute doesn't address concerns about a separate NSA program, known as PRISM, which involves the monitoring of overseas Internet communications. That initiative was authorized under Section 702 of the Foreign Intelligence Surveillance Act.

Both programs sparked international outrage after they were revealed by Snowden in 2013. Worried about the potential business impact of the controversy, major technology companies such as Facebook Inc. and Google Inc. united to push for changes under the umbrella of the Reform Government Surveillance coalition.

“USA Freedom is a significant step forward on surveillance reform,” Jessica Herrera-Flanigan, a partner at the Monument Policy Group and counsel for the coalition, told Bloomberg BNA June 3. “Reform Government Surveillance will continue to support reforms—both domestically and globally—that put the principles we released in 2013 into action.”

Passage of the USA FREEDOM Act signals a major shift on Capitol Hill when it comes to reining in surveillance laws, according to Bijan Madhani, privacy counsel for the Computer & Communications Industry Association. The legislation was overwhelmingly approved by the House and overcame significant obstacles in the Senate, including opposition from Senate Majority Leader Mitch McConnell (R-Ky.).

Next Deadline 

Section 702 is set to expire in 2017, which potentially sets the stage for the next major surveillance overhaul debate, according to Geiger. Another area of concern is updating the 1986 Electronic Communications Privacy Act to protect the privacy of e-mails, he said.

The need for Congress to renew Section 215 this year provided an opportunity for senior members of the House Judiciary Committee to tackle at least some NSA-related concerns as part of the reauthorization process.

During a committee markup, efforts to broaden the legislation to address Section 702 and other surveillance issues were unsuccessful. Committee Chairman Robert W. Goodlatte (R-Va.) and other sponsors said at the time that such changes might have “blown up” a delicate compromise backed by the House leadership, effectively killing the legislation.

Rep. Zoe Lofgren (D-Calif.) and other members wanted to include provisions, for example, that would prevent Section 702 from being used to conduct “back door” surveillance of Americans. Goodlatte has vowed to address the issue ahead of the Section 702 reauthorization deadline.

“We anticipate holding him to that promise,” Madhani said.

While it may be too soon to expect the committee to advance a piece of legislation addressing Section 702, the panel could potentially begin holding hearings, he said.

‘Loopholes' Remain 

Lofgren plans to continue efforts to get surveillance overhaul provisions attached to every potential vehicle that moves through the House, including appropriations bills, a spokeswoman said.

Lofgren told Bloomberg BNA that the USA FREEDOM Act fails to address “egregious privacy violations and backdoor surveillance loopholes” under Section 702.

“This bill did not create these privacy violations, but it fails to address them, and to allow them to continue unchecked is detrimental to the public's trust, our economy, and our competitiveness abroad,” she said.

Sen. Ron Wyden (D-Ore.), another staunch critic of the NSA surveillance programs, praised final passage of the USA FREEDOM Act, adding that Congress has more work to do in the area.

“The fight to protect Americans’ constitutional rights against government overreach is not over,” Wyden said in a statement. “I’m committed to plugging the backdoor search loophole that the government uses to review Americans’ communications without a warrant, to beat back efforts to build security weaknesses into our electronic devices and to require the government to get a warrant before tracking Americans’ movements electronically.”

In addition to reining in Section 215, the USA FREEDOM Act also codifies procedures allowing technology companies to publicly report information about surveillance orders and creates a panel of amici curiae at the FISC to provide guidance on matters of privacy and civil liberties, communications technology and other technical or legal matters.

“It's a pretty historic piece of legislation,” Madhani said. “This is the first sort of real reform of U.S. surveillance authority since the Sept. 11, 2001, terrorists' attacks.”

By Alexei Alexis

To contact the reporter on this story: Alexei Alexis in Washington at aalexis

To contact the editor responsible for this story: Heather Rothman at

H.R. 2048, as cleared by Congress and signed into law, is available at