July 1, 2014
The July issue of the Washington E-Bulletin is available now on AALLNET.
IN THIS ISSUE
Vol. 2014, Issue 07
A LOOK AHEAD
AALL IN THE STATES
ROUND UP AND REVIEW
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.
June 10, 2014
By Elizabeth Holland
The National Records and Archives Administration (NARA) will convene the first meeting of the Freedom of Information Act (FOIA) Advisory Committee on June 24. The committee will be comprised of twenty members— 10 appointed from within government and 10 from outside of government— and Office of Government Information Services director Miriam Nisbet will chair.
The FOIA Advisory Committee was established under the White House’s second Open Government National Action Plan (NAP). The Committee will “study the current FOIA landscape across the Executive Branch and may recommend legislative action, policy changes or executive action, among other matters.” A May 2014 Federal Register notice announcing the creation of the Committee notes: “NARA has determined that the creation of the FOIA Advisory Committee is in the public interest due to the expertise and valuable advice the Committee members will provide on issues related to improving the administration of FOIA.” Improvements to FOIA administration must take into account the views and interests of both requesters and agencies. The Committee is charged with fostering dialogue between the Administration and requester community, soliciting public comments, and developing consensus recommendations for improving FOIA administration and proactive disclosures.
The June 24 meeting will take place from 10:00 a.m. to 1:00 p.m. ET at the National Archives in Washington, D.C. and is open to the public.
May 29, 2014
By Elizabeth Holland
AALL has joined more than dozen groups in endorsing model Freedom of Information Act (FOIA) regulations released last week by a coalition of transparency advocates. The authors of the model regulations—Citizens for Responsibility and Ethics in Washington (CREW), the Electronic Privacy Information Center (EPIC), and the National Security Archive—are experts in FOIA litigation.
The proposed model FOIA regulations aim to standardize FOIA processes at federal agencies to improve public access to government records. The coalition’s recommendations draw on best practices among agencies, including:
- Making disclosure the default by formalizing the president’s directive for an agency to release information in response to a request except when it clearly identifies specific, foreseeable harm arising from the disclosure.
- Reducing unnecessary secrecy by requiring agencies to review classified documents that are the subject of a FOIA request to see whether they now can be disclosed.
- Saving taxpayer resources by encouraging agencies to post documents released through the FOIA process online.
The Office of Information Policy (OIP) at the Department of Justice is set to develop common FOIA regulations that all agencies can adopt as set forth in the administration’s Second Open Government National Action Plan. AALL urges OIP to consider the input of the requester community and transparency groups in its development of common regulations, including the thoughtful recommendations outlined in these model regulations.
May 23, 2014
By Elizabeth Holland
On Thursday, the House of Representatives passed the USA FREEDOM Act (H.R. 3361) in a 302-121 vote. In the eleven months since the Edward Snowden leaks shed light on the National Security Agency’s (NSA) secret spying practices, the political tide has clearly shifted against government surveillance. But while House passage of the USA FREEDOM Act indicates that lawmakers are critical of current surveillance practices, the USA FREEDOM Act passed by the House does not go far enough to protect the privacy of library users and all Americans.
Despite calls from privacy advocates and open government groups to strengthen the USA FREEDOM Act before sending it to the floor, the House Rules Committee made substantial modifications to the bill due to pressure from the Obama Administration. In the version passed by the House, search selector terms used by the NSA to define the scope of data requests have been broadened in such a way that could still allow bulk collection. The bill also limits transparency reporting for companies who receive such requests for data, and wrongly shifts the role of declassifying court decisions from the attorney general to the director of national intelligence. Many of the USA FREEDOM Act’s original co-sponsors expressed disappointment with the weakened legislation, with 76 of the bill’s 152 co-sponsors ultimately voting against it.
Congress can still act to reign in the NSA’s spying programs as the Senate Judiciary Committee will likely take up the USA FREEDOM Act this summer. Several leading senators have said they want a stronger bill and Committee Chairman Patrick Leahy (D-Vt.) has pledged his commitment to “meaningful reform.”
AALL urges the Senate to support improvements to the USA FREEDOM Act to protect the privacy of all Americans and ensure greater transparency about their government’s actions.
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.