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Still a long way to go on US surveillance reform, say critics

Critics say reforms contained in the US Freedom bill do not go far enough to achieve significant surveillance reform

Three provisions of the US Patriot Act that allow spy agencies to bulk-collect US phone data have expired, but critics say there is still a long way to go on surveillance reform.

The controversial provisions expired at midnight on 31 April 2015 after the US Senate failed to reach a deal to extend the authority for the surveillance.

This means US security services have lost the right to collect phone records in bulk to monitor "lone wolf" terror suspects and to carry out "roving wiretaps" of suspects, although they can still continue to collect information related to any foreign intelligence investigations, reports the BBC.

However, the proposed US Freedom Act is expected to be passed within days which will largely restore these data collection powers, but with more controls.

The legislation was drafted in the wake of revelations by former National Security Agency (NSA) Edward Snowden about the extent of NSA data collection and includes some reforms.

But critics say these reforms do not go far enough to achieve significant surveillance reform, arguing that the provisions of the Patriot Act do not represent the whole problem.

They say the Freedom Act may replace one form of bulk collection with another and there is still plenty of excessive surveillance happening under other provisions, such as Section 702 of the Foreign Intelligence Surveillance (Fisa) Amendments Act.

“Those need to be dealt with if we're to have real surveillance reform," said Techdirt blog editor Mike Masnick.

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“The end result is that this is a an important victory for surveillance reform – which never would have happened without Ed Snowden's actions – but it's just a step. And a lot more is needed. And it's needed now,” he wrote in a blog post.

The Senate vote approving the US Freedom Act is expected on 2 June 2015. The legislation had been approved by the House of Representatives and the White House, but the Senate rejected it by a vote of 57-42.

But once it became clear that the Patriot Act extension would not be possible, senators voted 77-17 to move forward with the Freedom Act as a way of restoring surveillance powers, according to reports.

The New York Times said "the expiration of surveillance authority demonstrates a profound shift in American attitudes since the days after the terrorist attacks on September 11 2001, when national security was pre-eminent in both parties".

Bowing to pressure

BSA | The Software Alliance has welcomed the Senate’s vote to move forward on the Freedom Act.

The global software industry group said the legislation’s provisions to end overly broad data collection and increased transparency are important steps in “restoring trust in the US surveillance regime” while ensuring the continued availability of other important national security authorities.

“This is a long-overdue development, and we urge the Senate to pass the US Freedom Act as soon possible, the organisation said in a statement.

But three civil liberties organisations criticised Senate for “bowing to pressure” from surveillance agencies to support the Freedom Act.

“The Freedom Act is a mass surveillance bill dressed up as a reform bill, and its passage will authorise unconstitutional surveillance practices,” Fight for the Future, Credo Mobile and Demand Progress said in a joint statement.

“It seems very likely that the Freedom Act will pass. But if that happens, each member of the US Senate will be on record for re-instating, with full knowledge of illegal implementation, the largest scale violation of the US Constitution in America’s history – one that is overwhelmingly unpopular with voters – and they will carry that failure through the rest of their political careers,” the groups said.

The groups vowed to continue fighting to repeal the Patriot Act and the Fisa Amendments Act, rein in the surveillance state, and place real checks on government surveillance.

In the UK, civil liberties groups have expressed concerns about the government’s plans to introduce new legislation to make it easier for authorities to spy on emails, phone calls and internet activity.

Big Brother Watch is calling for a curb on the scale of police access to communications data and greater transparency in the use of this data.

The group has published a report that shows disparity between UK police forces on how many requests are internally rejected and approved. 

On average, 96% of requests were approved in the past three years, the report claims, with approvals rates ranged from 99.9% down to 72%.

“We are repeatedly told that communications data plays a significant role in modern policing, yet the report’s findings pose serious questions about the internal approval process which differs from force to force, and with police forces making more than 730,000 requests for communications data in the past three years, political mutterings of diminishing access to our communications are clearly overstated,” said Big Brother Watch chief executive Renate Samson.

She added that if greater access to communications data is to be granted by the planned Investigatory Powers Bill, clearer internal procedures need to be established, and increased transparency and independent judicial approval need to be introduced as standard.

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