5.2 USA Freedom Act of 2015
The USA Freedom Act banned NSA’s bulk collection of U.S. call metadata and
telephonic records previously permitted under Section 215 of the Patriot Act.
228
Instead of permitting the government’s bulk collection of data, the Act requires that
government applications for call records be based on a “specific selection term”
(SST) that “specifically identifies a person, account, address, or personal device” in a
way that “limit[s], to the greatest extent reasonably practicable, the scope of tangible
things sought consistent with the purpose for seeking the tangible things”.
229
Notably, the Act removed the presumption of relevance for the production of
information and precluded the production for mere threat assessments.
230
In order to apply for records based on the first hop of a specific selection term, the
government must have:
(1)’reasonable grounds to believe that the call detail records sought to be produced based on
[a] specific selection term . . . are relevant to [an authorized] investigation,’ and (2) ‘a
reasonable, articulable suspicion’ that the selection term is ‘associated with a foreign power
engaged in international terrorism or activities in preparation there for, or an agent of a
foreign power engaged in international terrorism or activities in preparation there for.’
231
Other provisions in the Act include minimization requirements on the use of
technology by prohibiting the retention of information not pertaining to the target of
the search.
232 The Act mandates the “the prompt destruction of all call detail
records” determined not to be “foreign intelligence information”.
233 In addition,
the Act grants FISA court judges the authority to “impose additional, particularized
minimization procedures” with respect to any “non publicly available information
concerning unconsenting United States person[s]”.
234 Finally, the Act also attempts
to take steps to increase the transparency of government surveillance by requiring
annual publication of the number of orders sought and granted as well as the number
of U.S. persons who were targeted.
235
228 Solove and Hartzog (2014), p. 87.
229 Liu (2015).
230 H.R. 3361 § 101 (amending 50 U.S.C. § 1861(b)).
231 Id.
232 “USA Freedom Act Reinstates Expired USA PATRIOT Act Provisions but Limits Bulk Collection”, CRS Legal Sidebar, 4 June 2015. Available online at: https://fas.org/sgp/crs/intel/usafrein.pdf.
233 Id.
234 Id.
235 Ombres (2015), pp. 27–58 at 43–44.
440
S. M. Boyne
The USA Freedom Act banned NSA’s bulk collection of U.S. call metadata and
telephonic records previously permitted under Section 215 of the Patriot Act.
228
Instead of permitting the government’s bulk collection of data, the Act requires that
government applications for call records be based on a “specific selection term”
(SST) that “specifically identifies a person, account, address, or personal device” in a
way that “limit[s], to the greatest extent reasonably practicable, the scope of tangible
things sought consistent with the purpose for seeking the tangible things”.
229
Notably, the Act removed the presumption of relevance for the production of
information and precluded the production for mere threat assessments.
230
In order to apply for records based on the first hop of a specific selection term, the
government must have:
(1)’reasonable grounds to believe that the call detail records sought to be produced based on
[a] specific selection term . . . are relevant to [an authorized] investigation,’ and (2) ‘a
reasonable, articulable suspicion’ that the selection term is ‘associated with a foreign power
engaged in international terrorism or activities in preparation there for, or an agent of a
foreign power engaged in international terrorism or activities in preparation there for.’
231
Other provisions in the Act include minimization requirements on the use of
technology by prohibiting the retention of information not pertaining to the target of
the search.
232 The Act mandates the “the prompt destruction of all call detail
records” determined not to be “foreign intelligence information”.
233 In addition,
the Act grants FISA court judges the authority to “impose additional, particularized
minimization procedures” with respect to any “non publicly available information
concerning unconsenting United States person[s]”.
234 Finally, the Act also attempts
to take steps to increase the transparency of government surveillance by requiring
annual publication of the number of orders sought and granted as well as the number
of U.S. persons who were targeted.
235
228 Solove and Hartzog (2014), p. 87.
229 Liu (2015).
230 H.R. 3361 § 101 (amending 50 U.S.C. § 1861(b)).
231 Id.
232 “USA Freedom Act Reinstates Expired USA PATRIOT Act Provisions but Limits Bulk Collection”, CRS Legal Sidebar, 4 June 2015. Available online at: https://fas.org/sgp/crs/intel/usafrein.pdf.
233 Id.
234 Id.
235 Ombres (2015), pp. 27–58 at 43–44.
440
S. M. Boyne