NSA Surveillance Program Gets Nixed, and We Visit 1986

Submitted on December 4, 2015

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Robbie's Round-Up (November 30 - December 4, 2015)

NSA Ended Bulk Metadata Collection
At midnight on November 29, the National Security Agency stopped the bulk collection of metadata (phone numbers and call duration, but not the content of a call) from Americans' phone calls, bringing an end to the controversial government surveillance program.

How We Got Here
On June 2 , 2015, the USA Freedom Act was signed into law modifying provisions of the Patriot Act. The new law still gives the US government access to the metadata information, but the massive database of call records now remains with service providers and the government must seek court orders to access specific records.

This week's deadline didn’t come without another fight, however. Sen Tom Cotton (R-AR) tried unsuccessfully to delay the deadline and introduced new legislation on Dec 2, the Liberty Through Strength Act II, to stall or preempt reforms to US intelligence agencies. It is likely Sen Cotton’s bill will face an uphill climb in the Senate.

Another key provision in the USA Freedom Act requires the appointment of outsider public advocates at the Foreign Intelligence Surveillance Court (FISC). Five amici curae -- friends of the court -- were named on Nov 28. The five attorneys will be tasked with presenting the "legal argument that advances the protection of individual privacy and civil liberties; information related to intelligence collection or communications technology; or legal arguments or information regarding any other area relevant to the issue presented to the court." Previously, hearings before the FISC were ex parte, or one-sided, with the judge only hearing from government representatives.

Why Does This Matter?
The implementation of the USA Freedom Act marks a turning point in how the government conducts its surveillance operations. It also represents an important demonstration of policy change in the face of public outcry. Though some say reforms could have gone a lot farther, Sen Ron Wyden (D-OR), in hailing the end of the NSA phone records dragnet, said, “When Americans found out about this secret, unconstitutional surveillance two years ago, they were rightfully outraged. And they made their voices heard. The result was historic reform legislation that required the government to shut this program down.”

What’s Holding Up the Update to E-Mail Privacy Law?
On December 1, the House Judiciary Committee held a hearing on the E-mail Privacy Act (HR 699). The bill aims to update the 1986 Electronic Communications Privacy Act (ECPA) and improve the privacy protections for e-mail and other electronic communications information that is stored or maintained by third-party service providers. Though an update to the ECPA has been debated for over three years and the E-mail Privacy Act has more than 300 cosponsors in the House, plans for a markup or vote on the legislation are still unclear, mostly because House Judiciary Chairman Bob Goodlatte (R-VA) isn’t backing the bill.

A Brief Primer on Current E-mail Privacy Protections
Let’s head back to 1986 for a moment. The top grossing movie is Top Gun, the Chicago Bears have shuffled their way to a Super Bowl win, and we found out that the entire last season of Dallas was just Bobby Ewing’s dream! Though the news would soon be dominated by the Iran-Contra scandal, on October 21, 1986, President Ronald Reagan signed the Electronic Communications Privacy Act. The ECPA has been amended over time, but currently a loophole exists that lets the government use a subpoena, rather than a warrant, to force e-mail providers, such as Google, a to hand over e-mails or other electronic communications if they are more than six months old.

Back to the Present
At this week’s hearing, a representative from the Securities and Exchange Commission testified to note the agency’s opposition to the bill in its current form. In testimony back in September, the SEC and other agencies admitted they no longer use the subpoena authority under ECPA after a 2010 court ruling found it could violate the Fourth Amendment. The SEC is asking for concessions that would create a new warrant-like court order to allow it to obtain e-mail information during civil, rather than just criminal, cases, as warrants can currently only be obtained with probable cause of a criminal violation. Google and other supporters of the bill have called the SEC’s request a distraction.

Why Does This Matter?
Because privacy is a necessary component to ensure free-thinking conversations between citizens in a democracy, it is important to keep an eye on the development of the E-mail Privacy Act. In a recent Vox Populi poll, when the voters had the basics of ECPA explained to them, 86 percent said it should be updated. The legislation would be a step towards ensuring our digital communication policy environment protects the privacy of Americans’ e-mail and other electronic communications, while taking into account law enforcement needs.

House Communications Subcommittee Approved Broadband-Boosting Bills
The House Communications and Technology subcommittee signed off on two pieces of legislation meant to expand access to mobile and broadband Internet. The first, the Federal Spectrum Incentive Act (HR 1641), would incentivize federal agencies to give up or share spectrum by giving them a share of the proceeds from a spectrum auction.

The other piece of legislation, a discussion draft, advances ‘dig-once’ and a number of other measures to speed infrastructure deployment, including use of utility poles for broadband, streamlining citing and application processing, creating a “federal inventory of where fiber can be hung, antennas can be attached, or wires can be trenched”, and requiring federally funded highway projects to include laying broadband conduit.

The approval of the bills drew praise from various stakeholders, including members of the subcommittee, the National Cable & Telecommunications Association, and Sprint. The only two cautionary notes were sounded by Rep Ben Luján (D-NM) and subcommittee Chairman Greg Walden (R-OR). Rep Luján said he had some concerns about deployment to tribal lands and issues with liability that might limit those deployments. Chairman Walden said electric utilities had "significant concerns" about the changes to pole attachments, but pointed out it was only a draft, that staffers were working to address those concerns as the bill moved to full committee, and assured them in his opening statement that boosting broadband "should not come at a cost to electric utilities ratepayers."

Hillary Clinton Announced Her Infrastructure Plan
On December 2, former Secretary of State and 2016 Democratic Presidential candidate Hillary Clinton unveiled a five-year, $275 billion infrastructure plan. The plan includes the goal to bring affordable broadband with "sufficient" speeds to all American households by 2020. Clinton’s plan builds upon the Obama Administration’s efforts to increase broadband access and adoption, both by fostering greater competition in local broadband markets to bring down prices, and by investing in low-income communities and digital literacy programs. It will also expand the Obama Administration’s efforts to connect “anchor” institutions -- like public schools and public libraries -- to high-speed broadband. The plan promises to invest new federal resources so that train stations, airports, mass transit systems, and other public buildings can have access to gigabit connectivity and can provide free Wi-Fi to the public. Clinton’s Democratic Primary rival Sen Bernie Sanders (I-VT) also has a infrastructure plan, the $1 trillion Rebuild America Act, which would “invest $5 billion a year to expand high-speed broadband networks in under-served and unserved areas, and to boost speeds and capacity all across the country.”

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