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Congress passes USA Freedom Act, the NSA 'reform' bill. What does it mean for your privacy?

Edward Snowden, the NSA whistleblower whose actions led to calls to reform the agency's post-9/11 domestic surveillance activities.


Edward Snowden, the NSA whistleblower whose actions led to calls to reform the agency's post-9/11 domestic surveillance activities.

Today the Senate passed a version of the USA Freedom Act, a bill touted by its authors as surveillance reform that will end the NSA’s mass, suspicionless collection of Americans’ personal data. Given that parts of the Patriot Act expired on June 1st, and that the government is pretending the expiration is a “crisis” rather than an opportunity, President Obama is expected to sign the bill as soon as possible.

While the bill has many significant flaws, the USA Freedom Act vote is also historic: it’s the first time since the 1970s that Congress has indicated its intention to restrict the vast powers of intelligence agencies like the NSA, rather than exponentially expand them. It also shows the power that investigative journalism and brave whistleblowing can have on even the most entrenched government interests. Two years ago, debating these modest changes would’ve been unthinkable, and it is absolutely a vindication for Edward Snowden.

Unfortunately, the bill is also woefully inadequate and largely symbolic, and Congress would’ve been better off letting Section 215 of the Patriot Act expire permanently. The USA Freedom Act supposedly bans bulk collection of phone records or any other private records, and we certainly hope it actually does. But its provisions are vague and confusing, leading many legal experts to believe they could be re-interpreted in secret—by NSA lawyers with a history of warping the common definitions of ordinary words beyond recognition—and could lead the FISA court to continue to allow the NSA to collect large quantities of Americans’ data in secret. (The administration will shamefully now re-start the phone program that expired on Monday for six months, as allowed under the new law's "transition" period.)

The ultra-secret FISA court, a Kafkaesque nightmare for civil liberties, also gets to keep many of its worst features, with just minor changes around the edges. Such an anathema to democracy should be dismantled entirely.

The USA Freedom Act also does not touch on two of the NSA’s most powerful and controversial tools: the FISA Amendments Act and Executive Order 12333, which have been used to scan untold billions of emails coming in and out of the United States, and give the agency free rein to spy on 95% of the world’s population with virtually no restrictions.

And perhaps most shamefully, given that Congress never would’ve even had this debate without Edward Snowden, the bill does nothing for whistleblowers who can be prosecuted as spies under the Espionage Act for speaking to journalists and telling the American public the truth.

As Snowden himself said two weeks ago, we hope the USA Freedom Act is just the beginning of Congress’ reform of the NSA, and not the end. And we are reminded that it took more than five years for the Church Committee’s intelligence reforms to make their way through Congress in the 1970s.

It’s also important to remember that given the dysfunction in Congress on all subjects, plus the grip the intelligence agencies have over the legislative committees that supposedly oversee them, new laws constraining the NSA were only ever going to be one part of a much larger picture. Far more substantive changes have happened on the individual level, as well as at many of the nation’s largest tech companies, and in the courts.

Encryption is now a legitimate bulwark against mass surveillance by any government. Open-source and free software projects are both getting easier to use for ordinary users and are proliferating in numbers. Once collaborators with the NSA, big tech companies have also taken a far more adversarial position since their secret capitulations were exposed. These companies have at least partially responded to demand from citizens to protect their communications with encryption that can prevent intelligence agencies from spying on innocent people.

While companies like Apple have made great strides by encrypting iPhones by default, a lot more needs to be done to make sure end-to-end encryption—whether we are emailing, texting, or calling each other—becomes the norm in 21st century society. Continued pressure from the public will get us there.

Edward Snowden’s leaks have also opened the door to more court challenges. For years the government was able to hide behind procedural maneuvers, like invoking standing or the state secrets privilege, to prevent judges from ruling on the constitutionality of the programs. As the Second Circuit’s landmark opinion ruling NSA mass surveillance of Americans illegal, this tactic is slowly crumbling. While it remains an uphill climb for anyone to challenge the government’s actions, whistleblowers like Snowden and others are breaking down that wall.

We hope that all of these actions--in Congress, in the courts, and from the public—-will continue to become stronger and bring permanent reform in the months and years to come.


Trevor Timm is a co-founder and the executive director of the Freedom of the Press Foundation. He is a writer, activist, and lawyer who specializes in free speech and government transparency issues. His work has appeared in The Atlantic, Al Jazeera, Foreign Policy, The Guardian, Harvard Law and Policy Review, Politico, PBS MediaShift and Salon. Trevor formerly worked as an activist at the Electronic Frontier Foundation. Before that, he helped the longtime General Counsel of The New York Times, James Goodale, write a book on the Pentagon Papers and the First Amendment. In 2013, he received the Hugh Hefner First Amendment Award for journalism.

NSA can't legally surveil Americans' every phone call, for now. Thanks, Edward Snowden.

GARY CAMERON/REUTERS


GARY CAMERON/REUTERS

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Today is a big day for privacy in the United States: each of us can now call our mom, our best friend, or a pizza delivery service without the NSA automatically keeping a record of who we called, when, and how long the conversation lasts.

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If the PATRIOT Act ends tonight, what will that mean?

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There's a chance the PATRIOT Act will end tonight at midnight. If that happens, the NSA will no longer enjoy the right to gather phone records of innocent Americans. And there's more. Here's a list of other liberties that government agencies will have to forfeit.

Rand Paul plans to crush the PATRIOT Act

Official Portrait

Rand Paul, who sued the NSA two years ago, just announced that he plans to "force the expiration of the NSA illegal spy program" tomorrow in order to protect Americans' privacy rights. Here is his exclusive with Politico.

NSA wanted to hack the Android store

A newly published Snowden leak reveals that the NSA planned to hack the Android store so that it could covertly install malware on its targets' phones.

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The business model of NSA apologists


Those talking heads you see on TV defending the NSA and calling for Snowden's ass in a sling? They make bank off NSA surveillance contracts.

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Snowden vindicated

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When the courts ruled NSA domestic spying illegal last week, it was the plain fact of that surveillance that was most important. But it also means that whistleblower Ed Snowden, cast as a traitor and spy by his critics, is vindicated.

Conor Friedersdorf, at The Atlantic, writes that "the wrongheadedness of the national-security state’s position has been confirmed."

Snowden undeniably violated his promise to keep the NSA’s secrets. But doing so was the only way to fulfill his higher obligation to protect and defend the Constitution, which was being violated by an executive branch exceeding its rightful authority and usurping the lawmaking function that belongs to the legislature. This analysis pertains only to the leaked documents that exposed the phone dragnet, not the whole trove of Snowden leaks, but with respect to that one set of documents there ought to be unanimous support for pardoning his disclosure.

What did the courts just do to NSA spying?


When a panel of federal judges from the Second Circuit Court of Appeals ruled that the NSA's bulk-phone records spying program was illegal, it was a legal game-changer, but what, exactly, does it all mean?

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Appeals Court rejects NSA's bulk phone-record collection program


A panel of judges from the Second Circuit Court of Appeals has ruled that the NSA's mass phone-record collection program was not authorized by Congress in the Patriot Act.

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Translation: once they learn the truth, techies hate and fear us

US Defense Secretary: Snowden Caused Tensions With Techies

NSA-proof passwords


The Intercept's Micah Lee explains how to use Diceware's to generate a passphrase that can survive the NSA's trillion-guess-per-second cracking attempts -- but which can still be easily memorized.

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Wikimedia sues the NSA


The Wikimedia Foundation -- which oversees Wikipedia -- eight other organizations, and the ACLU have filed a lawsuit against the DoJ and the NSA, contesting the spy agency's program of mass "upstream" surveillance.

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IT feudalism: the surveillance state and wealth gaps


My latest Guardian column examines the relationship between technology, surveillance and wealth disparity -- specifically the way that cheap mass surveillance makes it possible to sustain more unequal societies because it makes it cheaper to find and catch the dissidents who foment rebellion over the creation of hereditary elites.

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Ed Snowden says he'll face trial in the US

But only if he's guaranteed a "legal and impartial trial" -- that is, not a trial under ancient law like the Espionage Act.

Bruce Schneier's Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World

No one explains security, privacy, crypto and safety better.Read the rest

Mass surveillance hip-hop from the director of the Bill of Rights Defense Committee

Shahid Buttar -- the rapper who created the amazing NSA vs USA track/video -- is also a constitutional lawyer who serves as executive director of the Bill of Rights Defense Committee.

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