On June 1st, for the first time in 14 years, the National Security Administration (NSA) stopped tracking the calls of hundreds of millions of innocent Americans under section 215 of the Patriot Act. But yesterday the U.S. Senate passed a milestone reform bill, the USA Freedom Act, which places significant constraints on section 215 and other authorities, though it leaves many other intrusive surveillance powers untouched.
The Freedom Act is far from ideal, but it shows that the tides have turned from a post 9/11 panic that shepherded in the Patriot Act to a time where Americans are ready to demand their elected officials restrain government surveillance.
The Act puts new limits on how the government can access individual phone records. Instead of the NSA collecting metadata, under the Freedom Act, the NSA can only ask phone companies to disclose data on a specific person, account, or device, if there is reasonable suspicion that the aforementioned are associated with a foreign power or agent of a foreign power engaged in international terrorism.
This reform comes after a dramatic period of debate in the Senate. In late May, pro-reform members of the Senate, including NH Sen. Shaheen, refused to reauthorize or extend provisions of the Patriot Act set to expire on June 1st. (NH Sen. Ayotte voted to reauthorize the Patriot Act or alternatively to extend it to July 31, 2015.) Instead, over 70 members of the Senate voted to move the USA Freedom Act forward.
On June 2nd, 67 Senators (including Sen. Shaheen and Ayotte) voted to pass the Freedom Act in the same form passed by the house on May 13. Sen. Mitch McConnell, supported by Sen. Ayotte, was unsuccessful in adding amendments that would weaken the USA Freedom Act, including provisions that would allow the government to possibly continue bulk collection of phone records for an additional six months.
In May, the Second Circuit held in a case brought by the ACLU that “the telephone metadata program exceeds the scope of what Congress has authorized and therefore violates [Section 215 of the Patriot Act].” But the court declined to rule on whether mass data collection violated American’s constitutional rights.
A recent poll shows New Hampshire voters decisively support substantive reform of U.S. government surveillance practices. By nearly a 2:1 margin, likely New Hampshire voters of all ages, ideologies, and political parties rejected the argument that the Patriot Act should be preserved with no changes because of potential terrorist threats.
Many New Hampshire state lawmakers recognize our preference for privacy. Indeed, New Hampshire became the first state to deny police officers the ability to use license plate readers which indiscriminately read and capture license plate data back in 2007.
Two bills are currently pending in the NH legislature which would extend our state’s commitment to privacy.
House Bill 142 would extend the state’s commitment to student privacy to the digital world, forbidding teachers and schools from forcing students to disclose social media passwords, contacts or content. This bill is an important step forward in protecting student privacy rights. In testifying about the bill, ACLU of NH Exec. Dir. Devon Chaffee advocated, “We have long been focused on that issue in the physical sense of a student’s physical right to privacy, even when they’re in a school setting. Now, what we’re really turning to is ensuring that those protections are keeping pace with technology.”
House Bill 468 would codify in law that New Hampshire citizens’ constitutional right to protect themselves against unreasonable government searches extends to their cellphone information. The bill forbids the use of “stingray” technology and would prevent law enforcement and government entities from tracking people via electronic device unless the government entity first obtains a warrant based on probable cause.
New Hampshire voters reject the notion that they must renounce their right to privacy in order to be safe and so does the ACLU. We are currently advocating in Concord for the passage of the two important state bills. Meanwhile, our national office continues to encourage the federal government to protect the Bill of Rights and reign in the NSA’s mass surveillance programs. The most egregious portion of the Patriot Act may be weakened, but it would be a mistake to let the Freedom Act’s passing mark the end of an important national conversation about privacy and individual rights.
— By Elizabeth Velez, ACLU-NH Legal Intern