Surveillance Reform Moves Forward in Senate

July 29, 2014

By Elizabeth Holland

Today, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) introduced a compromise version of the USA FREEDOM Act that would significantly limit government surveillance of Americans’ communications. AALL has joined a number of open government groups in a letter of support for the bill and urges Congress to pass it promptly, without weakening the legislation.

In May, the House passed a substantially diluted version of the USA FREEDOM Act, causing many privacy and transparency advocates, including AALL, to withdraw their support.  The new Senate bill, which has the backing of the Obama Administration, restores many of the privacy and transparency measures that were removed in the House.  The new bill would prohibit the National Security Agency’s (NSA) collection of phone records and Internet data in bulk by establishing narrowly defined specific selection terms. The bill would also require the NSA to report more information to the public and would create a panel of special advocates to support privacy rights before the Foreign Intelligence Surveillance Court. In a statement, Leahy said the bill would be the “most significant reform of government surveillance authorities since Congress passed the USA PATRIOT Act 13 years ago.” The Center for Democracy & Technology offers this excellent comparison chart of the House and Senate versions.

With Congress headed home for the month of August and only a handful of legislative days remaining before the November midterm elections, time is of the essence. It’s widely believed Leahy will push to put the bill directly on the Senate floor in early September. While the new USA FREEDOM Act isn’t perfect, the bill offer an important compromise between the White House, Congress, companies, privacy advocates, and the intelligence community, and is our best opportunity for limiting government surveillance of Americans’ communications.

AALL Welcomes Successful House Vote to Limit NSA Surveillance

June 20, 2014

By Elizabeth Holland

An amendment to the Fiscal Year 2015 Defense Appropriations bill that would prohibit the National Security Agency (NSA)’s ability to perform “backdoor” searches passed the House late Thursday on a vote of 292-123.  The measure closes the loophole in the FISA Amendments Act that has enabled the search of government databases for information on U.S. citizens without a warrant. Under the amendment, the NSA cannot use its funds to search that database specifically for a U.S. target. The NSA and Central Intelligence Agency are further barred from requiring device manufacturers to install technologies that create “backdoors” in their devices.

The successful vote—in many ways a surprise given the recent politicking over the USA FREEDOM Act in the House—represents the first time either chamber of Congress has voted to curtail the controversial practices of the NSA revealed by Edward Snowden last year. A similar amendment to Fiscal Year 2014 Defense Appropriations to end the NSA’s phone records collection program was offered by Rep. Justin Amash (R-MI) last August but failed by a narrow 205-217 margin.

AALL continues to focus on opportunities to limit NSA surveillance by improving the House-passed USA FREEDOM Act as it is considered in the Senate Judiciary and Intelligence Committees. Earlier this week, AALL joined a coalition of privacy advocates on a letter to Senate and Committee leadership that “plainly express[es] our position that, unless the version of the USA FREEDOM Act that the Senate considers contains substantial improvements over the House-passed version, we will be forced to oppose the bill that so many of us previously worked to advance.” The letter suggests a number of necessary fixes to the bill, including changes to the specific selection term and greater transparency provisions.  Additionally, AALL has urged the Administration not to renew the bulk telephony metadata program under a Section 215 order which expires today.

We are hopeful that Thursday’s House vote will send a clear signal to Senate leaders and members of the Obama Administration that they must approve real privacy reforms to the NSA’s surveillance practices.

House Set to Vote on Weakened USA FREEDOM Act

May 21, 2014

By Elizabeth Holland

Tomorrow, the House of Representatives is expected to vote on a watered down version of the USA FREEDOM Act (H.R. 3361), after substantial changes to the legislation were made by the Rules Committee earlier this week. The revised bill includes a modified, broadened definition of the term “specific selection term,” which was the key to the bill’s proposal to end bulk collection of Americans’ data, as intended by the bill’s authors. The new version also significantly waters down corporate transparency provisions and is generally weak in its approach to reforming the National Security Agency’s (NSA) surveillance practices.

Reports suggest Administration officials had a hand in the substantial modifications made to the bill, following closed-door negotiations with the Rules Committee. A compromise version of the bill, which AALL supported, unanimously passed the House Judiciary and Intelligence Committees earlier this month.

AALL is disappointed by the changes made to the USA FREEDOM Act by the Rules Committee. Last week, in coalition with a number of open government, civil liberties, and privacy advocates, we urged the Committee to restore crucial transparency requirements and to make clarifications and technical corrections that would strengthen the USA FREEDOM Act before floor consideration. Instead, the changes made by the Committee substantially weaken the USA FREEDOM Act’s ability to prohibit the bulk collection of innocent Americans’ records.

The House will also consider the National Defense Authorization Act (NDAA) (H.R. 4435) tomorrow, including several key amendments to limit government surveillance authorities under Section 702 of Foreign Intelligence Surveillance Act and Section 215 of the USA PATRIOT Act. As a closed rule process will preclude members of the House from offering amendments to the USA FREEDOM Act during floor consideration, the NDAA process is our best hope for reform. Stay tuned for more information.

AALL and Coalition Urge White House to Support ECPA Reform

April 29, 2014

By Elizabeth Holland

AALL joined over 80 signatories on a letter sent yesterday to President Obama advocating for a clean update to online privacy laws. The letter urges the president to support updates to the 1986 Electronic Communications Privacy Act (ECPA) that would guarantee Americans’ full constitutional and statutory protections for electronic communications like text messages, emails, photographs, and documents stored online. The letter also warns against carving out any exceptions in ECPA that would give some government agencies warrantless access to online communications. The Securities and Exchange Commission has been actively seeking such an exception, which would substantially weaken ECPA privacy reforms.

The letter’s signatories represent a diverse coalition of interests, including libraries, consumer protection organizations, civil liberties groups, tech companies, and the U.S. Chamber of Commerce. Congressional support for ECPA reform continues to grow; five new members of the House of Representatives signed as co-sponsors of the Email Privacy Act (H.R. 1852) this week, bringing the total number of co-sponsors to a whopping 205. As our letter concludes, the White House has “a rare opportunity to work with Congress to pass legislation that would advance the rights of almost every American.” We urge President Obama to support meaningful privacy reform today.

Call for ECPA Reform Puts Pressure on SEC

April 11, 2014

By Elizabeth Holland

With the House proposal to update the 1986 Electronic Communications Privacy Act (ECPA) garnering 200 co-sponsors this week, the members of the Digital Fourth coalition — the ACLU, Heritage Action, Americans for Tax Reform, and the Center for Democracy & Technology — sent a letter to the Securities & Exchange Commission (SEC) calling out the agency’s “contradictory or misleading statements” about its work to oppose the popular proposed reform. The SEC has been a vocal opponent of bipartisan legislation (H.R. 1852, S. 607) that would reform ECPA to establish a search warrant requirement for the government to obtain the content of Americans’ emails when those communications are stored with a third-party service provider for more than 180 days.  While this legislation has gained broad bipartisan support in both chambers, the SEC has dragged its feet, claiming an update would interfere with the way it conducts investigations.

In the letter, sent to the commission on Wednesday, Digital Fourth proposed an amendment developed with the lead sponsor of the bill, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), to assuage these concerns and implored the SEC to compromise. The amendment would assure that “ECPA cannot be used to shield data in the cloud from ordinary discovery techniques” by allowing the SEC and other regulators to use a subpoena to obtain information held by third-party service providers during the course of an investigation.

AALL strongly supports these proposed reforms to ECPA, which ensure important protections to the privacy of library users. As a member of the Digital Due Process coalition, we advocate for reform that would balance the government’s interest in protecting national security with the protections of privacy and freedom from government surveillance the Constitution requires. As such, we echo the call to the SEC to back these widely-supported commonsense reforms and urge Congress to enact ECPA reform this year.

Happy Birthday, World Wide Web! Make a Wish for ECPA Reform

March 12, 2014

By Elizabeth Holland

On March 12th, 1989, Sir Tim Berners-Lee put forth a proposal to make information sharing possible over computers. That proposal in turn would eventually became the World Wide Web, and today we celebrate its 25th birthday.

It’s a gross understatement to say a lot has changed in technology and the Internet since 1989, from the first website and search engines of the early ‘90s to the more recent rise and growth of cloud computing, However, there has been one constant over time:  the law that protects the privacy of your online communications from government intrusion, the Electronic Communications Privacy Act (ECPA), has not been updated since it was authored in 1986.

Yes, the rules governing your online privacy are older than the Web itself. While technology has advanced at a rapid pace, electronic privacy law has remained at a standstill. Without reform, the kind of electronic communications and records that are common today— think any email, Facebook posts, search history, cloud computing documents, cell phone location information, or text messages older than 180 days— can be freely seized without a warrant.

While two reform bills have been introduced, Congress remains slow to act. The Senate Judiciary Committee passed the ECPA Amendments Act of 2013 (S. 607) in April 2013. It awaits consideration by the full Senate. The House proposal, the Email Privacy Act (HR. 1852) has a not-insignificant 184 co-sponsors, but has not yet been heard in committee. These reforms would establish a search warrant requirement for the government to obtain the content of Americans’ emails when those communications are stored with a third-party service provider. The bills eliminate the outdated “180-day” rule that calls for different legal standards for the government to obtain email content depending upon the age of an email and would also require the government to notify any individual whose electronic communications have been disclosed within 10 days of obtaining a search warrant.

As we celebrate the advances of the Web over the last 25 years, it’s long past time due to reform ECPA and bring electronic privacy law up to speed.

Take Action: The Day We Fight Back Against Mass Surveillance

February 11, 2014

By Elizabeth Holland

Today, we join thousands of companies, organizations, and websites in The Day We Fight Back, a day of protest and action against NSA surveillance.  AALL members are encouraged to take action in support of the USA FREEDOM Act (S.1599, H.R.3361), a bipartisan bill that would limit government spying authority and begin to restore our privacy and rights under the Constitution.

In response to the recent and ongoing revelations that government surveillance of Americans under the Foreign Intelligence Surveillance Act (FISA) has been far broader than generally understood, the USA FREEDOM Act would legislatively clarify the limits on the collection and use of Americans’ information. The bill would help restore confidence in the intelligence community by amending the USA PATRIOT Act and FISA Amendments Act of 2008 to better protect Americans’ privacy and require greater oversight, transparency, and accountability with respect to domestic surveillance authorities.

AALL believes the government has a responsibility to protect the privacy of library users and calls for effective oversight of those laws which expand surveillance on library users. We urge Congress to take action in support of the USA Freedom Act to provide meaningful reform.

Have 5 minutes to spare? Using our Legislative Action Center, you can easily urge your members of Congress to co-sponsor the USA FREEDOM Act by sending a customized message to their offices and fight back against mass surveillance.

Review Group Report Calls for Limits on NSA Surveillance

December 20, 2013

By Elizabeth

On Wednesday, the White House released the report and recommendations of the Review Group on Intelligence and Communications Technologies, the board appointed by President Obama to review National Security Agency’s (NSA) surveillance practices. The 300+ page report includes 46 recommendations to reform government surveillance of online and telephone communications for the purposes of national security and suggests new limits on the NSA programs. The report comes after D.C. District Court judge Richard Leon ruled on Monday that the NSA’s program to collect bulk telephone metadata “almost certainly” violates the Fourth Amendment. Here are the highlights:

  • Bulk Collection under Section 215: The review group recommends that the NSA’s bulk collection of phone records under Section 215 of the USA PATRIOT Act be “terminated as soon as reasonably practicable” stating, “as general rule…the government should not be permitted to collect and store all mass, undigested, non-public personal information about individuals to enable future queries and data-mining for foreign intelligence purposes.” The group recommends instead that the NSA query records as they are maintained by phone companies or a private third party. Data could only be queried if a Foreign Intelligence Surveillance Act (FISA) Court judge has determined that there are reasonable grounds to believe that the information sought is relevant to an authorized terrorism or counter-intelligence operation, and that the order is reasonable in focus, scope and breadth. The report does not recommend that the phone companies be statutorily required to retain call record data.
  • National Security Letters: The review group report recommends tightening federal law enforcement’s use of National Security Letters (NSLs) by requiring authorities to obtain a prior “judicial finding” showing “reasonable grounds” that information sought is relevant to terrorism or other intelligence activities. This recommendation is both surprising and promising in its breadth as it would essentially do away with NSLs in favor of court orders under the same standard recommended by the Review group for Section 215 orders.
  • Surveillance under Section 702: The review group recommends closing the “backdoor search loophole” by prohibiting the government from searching information acquired pursuant to Section 702 of the Foreign Intelligence Surveillance Act for information about a particular U.S. person without a court order. The report also recommends immediate deletion of any information about U.S. persons acquired under Section 702 that does relate to foreign intelligence, and recommends prohibiting use of any information about U.S. persons acquired under Section 702 from being used in any criminal proceedings.

The report also recommends greater public disclosure of the use of Section 215, Section 702 and NSL authorities; the creation of a Public Interest Advocate to represent privacy and civil liberties interests before the FISA Court; and reform of FISA Court procedures, including release of FISC opinions where practicable.

We were pleased to see the group advocate for such significant reform of surveillance practices and we urge both Congress and the White House to heed their call. Many of the recommendations of the review group align with provisions included in Senator Patrick Leahy (D-Vt.) and Congressman Sensenbrenner’s (R-Wisc.) USA FREEDOM Act (new advocacy one-pager from Government Relations Committee chair Susan Nevelow Mart and Marlene Harmon is available here), which AALL strong supports.  Senator Leahy, chair of the Senate Judiciary Committee, said in a statement on Wednesday that he has invited the members of the review group to testify before the Senate Judiciary Committee in January. We will keep you updated as more information develops.

AALL Calls for ECPA Reform on National Day of Action

December 5, 2013

By Elizabeth

Today, AALL is joining a broad spectrum of organizations in a day of action to call for reform of the Electronic Communication Privacy Act (ECPA), the federal law that governs standards for government access to private information that is transmitted and stored on the Internet. Since it was authored in 1986, ECPA has not been updated to reflect the immense changes in technology that have taken place, resulting in a law that fails to provide necessary privacy protections for electronic communications.  It’s time to update ECPA so that the law protects the digital privacy rights of today’s citizens, including library users.  As a member of the Digital Due Process coalition, a diverse group of companies, public interest groups and library associations, AALL urges reform to ECPA that would restore a fair balance between the privacy rights of citizens and the legitimate needs of law enforcement in the digital age.

You can join us today by adding your name to the tens of thousands who have signed on to this petition to the White House calling for support for sensible ECPA reform. 

AALL will continue to advocate for stronger privacy protections for communications in response to changes in technology, while preserving the legal tools necessary for government agencies to enforce the laws, respond to emergency circumstances and protect the public. For more information on AALL’s position on ECPA, see our Advocacy One-Pager.

Coalition Calls on Congress to Reform Intelligence Practices

November 22, 2013

By Elizabeth

AALL signed on to a letter sent yesterday to Congressional leadership urging that intelligence surveillance practices be reformed by “limiting the scope of surveillance and by substantially enhancing the privacy protections, oversight, and accountability mechanisms that govern that surveillance.” The letter, signed by a diverse group of civil society groups, trade associations, companies and investors, was received by party leadership in the House and Senate and the chair and ranking members of the House and Senate Judiciary and Intelligence Committees.

The letter urges Congress to limit the scope of surveillance practices, reject bulk collection, and to substantially enhance the privacy protections, oversight and accountability mechanisms that govern surveillance. Signatories endorse the USA FREEDOM Act, which promotes these goals, and oppose “legislation that codifies sweeping bulk collection activities.”


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