On June 2, the President signed into law the USA Freedom Act of 2015 (“the Act”) after the Senate passed the bill by a vote of 67-to-32. As King & Spalding previously reported, the Act amends the Patriot Act and prohibits the National Security Agency (“NSA”) from collecting bulk telephone data. The Senate passed the Act without amendment.
The Act extends expired provisions of the Patriot Act, such as the government’s ability to track those who change cell phones via the so-called “roving wiretap” provision, and the ability to track individuals not affiliated with a terrorist organization through the never-used “lone wolf” provision. However, the Act also makes crucial revisions to the provisions of Section 215, which the Bush administration used to allow the NSA to access phone data from American citizens.
With the passage of the Act, the NSA — after a six-month wind down period—will no longer be able to continue bulk metadata collection. Instead, telephone providers will store information, and intelligence officers will be able to access the data by making specific requests in connection with an international terrorism investigation. These requests must use “specific selection terms” to identify the target and state that there are “reasonable grounds” that the records sought are relevant to the investigation and that there is a “reasonable, articulable suspicion” that the selection term is linked to terrorist activities. The Act also includes reforms to render the Foreign Intelligence Surveillance Act court more transparent and accountable, such as the establishment of an amicus curiae panel to advise the court when an application presents a novel or significant interpretation of the laws.
The Act has received criticism from Congressional hardliners who had sought to retain greater authority for the NSA, with Senate Majority Leader Mitch McConnell stating that the Act “surely undermines American security by taking one more tool from our warfighters at exactly the wrong time.” However, privacy advocates see this a as a positive step forward. ACLU deputy legal director Jameel Jaffer referred to the Act to the Act as “a milestone,” signaling that “Americans are no longer willing to give the intelligence agencies a blank check.”