Rep. Justin Amash (R-Mich.) was way ahead of everyone else in Congress in spotting the problems with the USA Freedom Act, a bill that claims to rein in the government’s warrantless bulk collection practices.
The bill passed the House by a vote of 303-121 in May and is scheduled for a Senate vote Tuesday.
Here’s a quick refresh on the bill’s shortcomings according to Rep. Amash.
Amash was an original co-sponsor of the USA Freedom Act and said that it was so watered down by the time it made it to the House floor that he had no choice but to vote against it. Amash’s Chief of Staff Will Adams told Rare that the bill was a “sham.”
Amash posted a lengthy explanation of the problems with the bill on Facebook in May.
Still confused? Let’s use phone record collections as an example.
The Counterintelligence Access to Telephone Toll and Transactional Records or Section 2709(b) of title 18, United States code originally read as follows:
a) Duty to Provide.— A wire or electronic communication service provider shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation under subsection (b) of this section.
(b) Required Certification.— The Director of the Federal Bureau of Investigation, or his designee in a position not lower than Deputy Assistant Director at Bureau headquarters or a Special Agent in Charge in a Bureau field office designated by the Director, may—
(1) request the name, address, length of service, and local and long distance toll billing records of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States; and
(2) request the name, address, and length of service of a person or entity if the Director (or his designee) certifies in writing to the wire or electronic communication service provider to which the request is made that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution of the United States.
The USA Freedom Act amends the original wording, as Amash said, in a very technical sense. Where the word “may” appears at the end of section (b) “may, using a specific selection term as the basis for a request” has been added on.
That basically means the government may not use a general, sweeping selection term if it wants to collect these records, but as long as it’s specific — “a term used to uniquely describe a person, entity, or account” — collection may and can still occur.
An Amash example: the government can ask “[A]telephone company to turn over all call records for ‘area code 616’ or for ‘phone calls made east of the Mississippi.'”
The government’s ability to collect telephone records, as well as email and financial records, without a warrant and on the grounds of National Security can be traced right to Patriot Act and America’s heightened security in a post-9/11 world.
The extension of the Patriot Act is a particular sticking point for Sen. Rand Paul (R-Ky.), who will oppose the USA Freedom Act on those grounds when it comes up for a vote.
“Sen. Paul does not feel that Sen. Leahy’s reforms go far enough. There are significant problems with the bill, the most notable being an extension of the Patriot Act through December 2017,” a Paul aide told CNN recently.
Paul sees the Patriot Act as the root of all data collection issues.
It should be noted that tea party Sens. Ted Cruz (R-Texas) and Mike Lee (R-Utah) are sponsoring the USA Freedom Act as it currently stands. Microsoft, Google, Apple, Facebook and Yahoo are all on board with it too.