( ) Zero link – the version of the plan we wrote is designed to end a practice – not just an authority.
( ) We get permanent fiat – any other interpretation turns debate from a “should” question to a “will question”. Neg would always win and we’d also learn a lot less.
( ) We still solve perception. Independently, plan’s language makes circumvention far tougher.
Scott Shackford is an associate editor at Reason. This article is internally quoting Mark Jaycox, a legislative analyst for the Electronic Frontier Foundation - “Is the USA Freedom Act the Best We Can Expect Right Now?” - Reason - 5/20 http://reason.com/blog/2015/05/20/is-the-usa-freedom-act-the-best-we-can-e
It doesn't appear to be easy to support the USA Freedom Act. The Act's full real name is the "Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-Collection, and Online Monitoring Act." Knowing the full name of the act helps explain why privacy supporters aren't shouting from the rafters over the legislation, even if they are supporting it. As is the case with many other bills with elaborate names, the USA Freedom Act doesn't actually do what its name states. The USA Freedom Act (H.R. 2048) is Congress' response to the public revelation and the following outrage that the National Security Agency (NSA) has been for years secretly collecting mass amounts of domestic metadata from virtually all Americans as part of its goal of sniffing out terrorists. It has been doing so under the aegis of Section 215 of the PATRIOT Act, which allows the NSA and FBI to collect all sorts of data and records that are relevant to an ongoing investigation. But the NSA and the Foreign Intelligence Surveillance (FISA) Court that oversaw approval of records collection requests took a very, very wide view of what was "relevant," and that included, among other things, the phone records of every single American. There was an awareness among privacy experts that this was happening, but because the entire process was classified, the ability for anybody, even members of Congress, to do much about it was limited. Then Edward Snowden came around and released information showing how remarkably expansive the NSA surveillance actually was. This all came as a surprise to Rep. James Sensenbrenner (R-Wis.), who introduced the PATRIOT Act in 2001. He said it was never his intent to authorize mass collection of the data of Americans in the first place. The USA Freedom Act, which Sensenbrenner has also sponsored, is intended to reform these procedures. But what the USA Freedom Act actually does is fairly modest compared to the amount of surveillance authority the NSA had claimed for itself. It will end the bulk collection of phone metadata collection under Section 215, but that's not the only avenue by which the federal government claims authority to collect huge amounts of private information. Furthermore, right now we're seeing the third attempt to get the act passed, and the strength of the reforms has been watered down along the way. Indeed, some of the reforms called for in the act (storing the telecommunications data with the companies rather than the government and requiring the government to request it) came from former NSA Director Keith Alexander. The support of the Obama Administration has itself given some pause, due to its role in fighting lawsuits against the program and the blatant deception of current Director of Intelligence James Clapper before the Senate about the existence of mass phone record collection. What the USA Freedom Act is intended to do is end mass domestic data collection through Section 215, as well as in the secretive National Security Letters, and require "specific selection terms" to limit mass records requests. It also reforms the FISA court to designate several independent advisors to the court to help provide "legal arguments that advance the protection of individual privacy and civil liberties," making the FISA court a slightly more adversarial place rather than the apparent rubber stamp factory it had been. It will also mandate a declassification review process for FISA court decisions. But it's also really hard to try to gauge the impact of the bill as written, and that's coloring perceptions of its value. Making the situation more complicated is a federal court ruling that is actually friendly to privacy reformers. On May 7, the Second Circuit Court of Appeals ruled that Section 215 never actually authorized the NSA to engage in mass phone metadata collection in the first place. The court ruled that the NSA had stretched the definition of "relevance" and "investigation" too far by scooping up pretty much everything and storing it just in case it might be useful later. But the court also did not demand any immediate changes, partly because it knew Congress was already working on legislation to deal with the pending sunsetting of Section 215, which expires June 1. This ruling prompted some rethinking of the USA Freedom Act by the Electronic Frontier Foundation (EFF). The group had previously endorsed each iteration of the act, increasingly reluctantly as it was watered down with each session. In response to the court ruling, though, EFF withdrew its support and went neutral, calling for legislators to now strengthen the act. Mark Jaycox, a legislative analyst for EFF who has been writing about the USA Freedom Act, still has positive things to say about it, but doesn't want Congress to settle for less than it has to. It's the first reform of NSA surveillance since the 1970s. There should be more to it. "The USA Freedom Act should be stronger," Jaycox says. "Congress should be pushing for more control for themselves and more for the public." EFF would like Congress to return to the first iteration of the act that called for a stronger adversarial position within the FISA court, not just an adviser. They want Congress to address other authorizations used to justify bulk metadata collection, not just Section 215 and National Security Letters. They want better "minimization" procedures to make sure information that isn't directly connected to an investigation is properly purged. And they want to remove an "emergency exception" that allows the government to snoop on any "non-United States person" for 72 hours without any court authorization at all. Given that the court ruling determined that the NSA had been operating outside of the law's intent, should we be concerned that any attempt to partly rein in surveillance powers without completely eliminating them will ultimately lead back to more abuse? Who gets to decide what a "specific selection term" is? The same people who determined that every single phone record of every American was "relevant" to investigating potential terrorist attacks on Americans? Jaycox is aware that this abuse concern helps feed the belief the USA Freedom Act doesn't go nearly far enough. "We've seen the intelligence community and the administration stretch definitions," Jaycox says. "We've seen them come up to the line and cross it completely. Section 215 is an example. I think that's where the hesitancy comes from." It's the FISA court that was supposed to stand in the way of the NSA abusing the language, but that clearly didn't happen. Congress can legislate words to be as narrow as they like, Jaycox notes, "But at the end of the day it's going to be a judge that's reviewing these orders." And thus, there's the push for more transparency and declassification of FISA court decisions, in the hopes of making it more clear how the judges themselves are interpreting the law. The modest reforms weren't enough for some privacy-minded House members like Rep. Justin Amash (R-Mich.), Rep. Thomas Massie (R-Ky.), and Rep. Jared Polis (D-Colo.). They all voted no. Amash later explained on Facebook that he feared passing the USA Freedom Act in the wake of the court ruling would have the impact of authorizing bulk data collection rather than restricting it: "H.R. 2048 falls woefully short of reining in the mass collection of Americans' data, and it takes us a step in the wrong direction by specifically authorizing such collection in violation of the Fourth Amendment to the Constitution. Americans, and members of Congress, should demand that Congress instead pass the original, bipartisan version of the USA FREEDOM Act from 2013, which strengthened—not weakened—Section 215's relevance standard to end bulk collection, while still allowing the government the flexibility it needs to pursue genuine threats against the United States." And this morning Amash posted a letter signed by him and 58 others in the House who voted no, explaining that their opposition to the USA Freedom Act was tha the surveillance reforms did not go far enough.
( ) Extend our Greene ev – it’s great at proving plan’s language reduces circumvention risks.
( ) Plan restores strong language – that’s sufficient to end circumvention.
Jennifer Granick is the Director of Civil Liberties at the Stanford Center for Internet and Society. Jennifer was the Civil Liberties Director at the Electronic Frontier Foundation. Jennifer practices, speaks and writes about computer crime and security, electronic surveillance, consumer privacy, data protection, copyright, trademark and the Digital Millennium Copyright Act. From 2001 to 2007, Jennifer was Executive Director of CIS and taught Cyberlaw, Computer Crime Law, Internet intermediary liability, and Internet law and policy. Before teaching at Stanford, Jennifer earned her law degree from University of California, Hastings College of the Law and her undergraduate degree from the New College of the University of South Florida. “USA Freedom Act: Oh, Well. Whatever. Nevermind.” – Just Security - May 21, 2014 http://justsecurity.org/10675/usa-freedom-act-oh-well-whatever-nevermind/
The initially promising USA Freedom Act could have ended the previously secret government practices of collecting Americans’ calling records, internet transactional information and who knows what else in bulk. Today’s version would allow broad collection to continue under the guise of reform. The initial version of the bill would have reinforced existing statutory language requiring a showing of “relevance to an authorized investigation” before agents can get an order requiring production of business records, dialing and routing information, and other data, and would have added other limits to ensure massive collection would stop. It also would have implemented mild reforms to content surveillance under section 702 of the FISA Amendments Act, stopping “back door” searches for Americans’ communications. Last week, a Managers’ Amendment watered those provisions down, substituting new language that would allow agents to use a “specific selection term” as the “basis for production”. The bill defined “specific selection term” as something that “uniquely describe[s] a person, entity, or account.” Given the intelligence community’s success at getting FISA judges to reinterpret obvious language—e.g. “relevance”—in counter-intuitive ways, people wondered what this new language might mean. There’s deep public mistrust for the intelligence community and for the FISA court, which conspired to allow bulk collection under spurious legal justifications for years. Worse, there’s deep public mistrust for the law itself, since the intelligence community’s “nuanced” definitions of normal words have made the public realize that they do not understand the meaning of words like “relevance”, “collection”, “bulk”, or “target”.