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Goals for USA FREEDOM reauthorization: reforms, access, and transparency

At Mozilla, we believe that privacy is a fundamental digital right. We’ve built these values into the Firefox browser itself, and we’ve pushed Congress to pass strong legal protections for consumer privacy in the US. This week, Congress will have another opportunity to consider meaningful reforms to protect user privacy when it debates the reauthorization of the USA FREEDOM Act. We believe that Congress should amend this surveillance law to remove ineffective programs, bolster resources for civil liberties advocates, and provide more transparency for the public. More specifically, Mozilla supports the following reforms:

  • Elimination of the Call Detail Record program
  • Greater access to information for amicus curiae
  • Public access to all significant opinions from the Foreign Intelligence Surveillance Court

By taking these steps, we believe that Congress can ensure the continued preservation of civil liberties while allowing for appropriate government access to information when necessary.

Eliminate the Call Detail Record Program

First, Congress should revoke the authority for the Call Detail Record (CDR) program. The CDR program allows the federal government to obtain the metadata of phone calls and texts from telecom companies in the course of an international terrorism investigation, subject to specific statutory requirements. This program is simply no longer worthwhile. Over the last four years, the National Security Agency (NSA) scaled back its use of the program, and the agency has not used this specific authority since late 2018.

The decision to suspend the program is a result of challenges the agency encountered in effectively operating the program on three separate fronts. First, the NSA has had issues with the mass overcollection of phone records that it was not authorized to receive, intruding into the private lives of millions of Americans. This overcollection represents a mass breach of civil liberties–a systemic violation of our privacy. Without technical measures to maintain these protections, the program was no longer legally sustainable.

Second, the program may not provide sufficiently valuable insights in the current threat environment. In a recent Senate Judiciary Committee hearing, the government acknowledged that the intelligence value of the program was outweighed by the costs and technical challenges associated with its continued operation. This conclusion was supported by an independent analysis from the Privacy and Civil Liberties Oversight Board (PCLOB), which hopes to publicly release an unclassified version of its report in the near future. Additionally, the shift to other forms of communications may make it even less likely that law enforcement will obtain useful information through this specific authority in the future.

And finally, some technological shifts may have made the CDR program too complex to implement today. Citing to “technical irregularities” in some of the data obtained from telecom providers under the program, the NSA deleted three years’ worth of CDRs that it was not authorized to receive last June. While the agency has not released a specific explanation, Susan Landau and Asaf Lubin of Tufts University have posited that the problem stems from challenges associated with measures in place to facilitate interoperability between landlines and mobile phone networks.

The NSA has recommended shutting down the program, and Congress should follow suit by allowing it to expire.

Bolster Access for Advocates

The past four years have illustrated the need to expand the resources of civil liberties advocates working within the Foreign Intelligence Surveillance Court (FISC) itself. Under statute, these internal advocates are designated by the court as a part of the amicus curiae program to provide assistance and insight. Advocates on the panel have expertise in privacy, civil liberties, or other relevant legal or technical issues, and the law mandates access to all materials that the court determines to be relevant to the duties of the amicus curiae.

Unfortunately, the law does not guarantee that the panel will have access to the data held by the government, limiting the insight of the panel into the actual merits of the case and impairing its ability to protect civil liberties. To correct this inequity, Congress should amend the statute to ensure that the amicus curiae has access to any information held by the government that the amicus believes is relevant to the purposes of its appointment. By doing so, amici will be better equipped to fulfill its duties with a more complete picture of the underlying case.

More Transparency for the Public

Finally, the American public also deserves more information about how surveillance authorities are being used. The USA FREEDOM Act had provisions intended to spur greater public disclosure, particularly regarding decisions or orders issued by the Foreign Intelligence Surveillance Court (FISC) that contained significant interpretations of the Constitution or other laws. While the Court was originally designed in 1978 to address a relatively narrow universe of foreign surveillance cases, its mission has since expanded and it now routinely rules on fundamental issues of Constitutional law that may affect every citizen. Given the importance and scope of this growing body of jurisprudence, Congress should protect public access to the law and ensure that all cases with significant opinions are released.

Historically, the FISC has been reluctant to publicly release their decisions, despite the best efforts of civil society advocates. In recent litigation, the most prominent point of contention has been whether the FISC is obligated to release opinions issued before the enactment of the USA FREEDOM Act in May 2015. The legislative history and the text of the statute itself does not include any reference of such a limitation–senior members of the House Judiciary Committee explicitly stated that the provision was intended to require the government to “declassify and publish all novel significant opinions” of FISC during legislative debate. Congress should take this opportunity to re-emphasize their intent by amending the statute with explicit language to compel the release of all such decisions.

Ultimately, these reforms represent a necessary step forward to better protect the civil liberties of US users. By removing ineffective programs, expanding access to information for internal advocates, and providing greater transparency for the public, Congress can build upon critical privacy safeguards and support checks on the future use of surveillance authorities. Our hope is that Congress will adopt these reforms and give people the protections that they deserve.