On 13 May, the US House of Representatives passed the latest version of the USA Freedom Act – the most prominent piece of legislation to have been introduced in the US in the wake of the Snowden revelations. The bill has had a long and complicated legislative history that we have traced over the past two years and it still needs to be approved by the Senate. If passed it would end the bulk collection of domestic phone metadata that was the subject of the very first Snowden revelation.
This is, of course, the same programme that was last week found to be unlawful by a US appeals court.
That bulk collection under Section 215 of the Patriot Act has already been declared illegal – the provision itself is due to expire on 1 June – provides yet more ammunition to critics who feel that the USA Freedom Act does not go far enough. In a post last week, The Sunlight Foundation assessed the pros and cons of the bill, concluding:
It’s unclear whether the version that is going to pass the House is a net gain or loss – especially considering sunset is only one legislative week away. The Senate needs to make significant improvements to USA Freedom before we can be sure it’s a step forward.
As many commentators have noted, while the current iteration of the USA Freedom Bill would end the US government’s collection of this domestic phone metadata, it would still allow the government access to the data retained by telecoms companies. Critics also point out that the very first iteration of the bill was stronger, providing something more closely resembling adversarial litigation in the FISA court and greater protection for individuals whose information is surveiled despite not being the subject of an investigation. In the wake of the Second Circuit judgment, the EFF has also argued that the language in the Bill should be strengthened to better match the court’s opinion that mass collection cannot be justified in terms of “relevance”.
Following the House’s passage, Senator Ron Wyden said that he would attempt to reintroduce aspects of the original USA Freedom Act in the Senate.
The bill’s future remains up in the air. Though it passed by an overwhelming majority in the House (338 votes to 88), Senate Majority Leader Mitch McConnell opposes the bill and any reform whatsoever, and it wouldn’t receive the same support there. As the New York Times notes, though, it’s clear that McConnell “does not have enough support in the Senate to pass a straight reauthorization of the Patriot Act”, so either the bill or a version of it will be passed, or a short-term reauthorisation of the Patriot Act will pass, allowing for more time to debate reform.