Why the EFF is pulling its support for the USA Freedom Act

[Commentary] The United States Court of Appeals for the Second Circuit has determined in American Civil Liberties Union (ACLU) v. Clapper that the National Security Agency’s telephone records program went far beyond what Congress authorized when it passed Section 215 of the Patriot Act in 2001. The court unequivocally rejected the government’s secret reinterpretation of Section 215. Among many important findings, the court found that Section 215’s authorization of the collection of business records that are “relevant to an authorized investigation” could not be read to include the dragnet collection of telephone records. The court also took issue with the fact that this strained application of the law was accomplished in secret and approved by the secret and one-sided Foreign Intelligence Surveillance Court (FISA Court).

The EFF filed amicus briefs in this case in both the district and circuit courts, and we congratulate our colleagues at the ACLU on this significant victory. The Second Circuit’s opinion stands as a clear sign that the courts are ready to step in and rule that mass surveillance is illegal. That’s great news. The Second Circuit’s decision, however, also marks a significant change in the context of the ongoing legislative debate in Congress. Above all, it is clear that Congress must do more to rein in dragnet surveillance by the NSA.

[David Greene is a senior staff attorney at the Electronic Frontier Foundation. Mark Jaycox is a legislative analyst at EFF]