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USA Freedom Act 101: How far did House go to rein in the NSA?

The House passed a sweeping bill Thursday to end the NSA’s bulk data collection of Americans’ phone metadata. You’ll want the answers to these five questions. 

The US House, responding to the outcry over massive government antiterrorism surveillance of Americans’ phone records, voted Thursday to end the bulk collection of such data.

The USA Freedom Act passed with strong bipartisan support, 303 to 171, though last-minute changes negotiated with the White House caused many civil liberties groups, technology companies such as Google and Facebook, and lawmakers from both parties to withdraw their backing from the “watered down” legislation.

The act is the most significant scaling down of US surveillance in more than three decades, according to its sponsors, and it now heads to the Senate for consideration. President Obama urged Congress in January to draft surveillance reform legislation, and on Wednesday, the White House endorsed the Freedom Act. Here are answers to key questions about the legislation.

What does the Freedom Act do?

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It would end the US government’s bulk collection of Americans’ phone records – phone numbers, time of calls, and duration of calls (though not content) – that was exposed by National Security Agency contractor Edward Snowden a year ago. Such information would reside, instead, with phone companies and be kept for 18 months – the firms’ current normal practice. Other personal data – financial, medical, and even firearms purchases – would also be off-limits to government collection.

The government would now need to obtain, on a case-by-case basis, a court order from the secret Foreign Intelligence Surveillance Court before it could search phone records for antiterrorism purposes. Under emergencies, however, the government could have access to data for up to seven days before getting court approval. The intelligence court must also publish its most significant opinions, providing a new level of transparency for the public.

Why do critics say it’s watered down?

They are angered by recent closed-door negotiations with the White House that changed the original bill as approved unanimously by both the House Judiciary and Intelligence committees. One complaint is over the dropping of an independent advocate who would have represented the public’s interests before the Foreign Intelligence Surveillance Court.

Another is what’s being described as a “loophole” that can still allow mass data searching. In the original bill, the government would have had to make limited, “specific selection” search requests to the court based on certain criteria. The “specific selection” was defined as a “person, entity, or account.”

To prevent the USA Freedom Act from interfering with more routine investigations, the White House had the definition broadened: Specific selection is now a “discrete term, such as a term specifically identifying a person, entity, account, address or device.” The concern is that “such as” could mean anything: It could mean an entire Area Code, it could mean the entire East Coast.

The loophole is big enough to “run a truck through,” complained Rep. Zoe Lofgren (D) of California, as she spoke against the measure on the House floor Thursday.

What do supporters say about these criticisms?

They acknowledge that the bill is not perfect, and even key sponsors of the bill are unhappy with the changes. “The critics are correct” about the squishy definition, said Rep. John Conyers of Michigan, the top Democrat on the House Judiciary Committee. But, he countered, “that concern is largely theoretical.”

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If the government wants to make policy changes, it would have to report the classified change to Congress within one day and make an unclassified report to the public within 45 days. “If the government tries to expand this authority, the public will know it in short order,” said Mr. Conyers.

Bottom line, say supporters, the Freedom Act would end bulk collection by the government, and if this bill does not become law, the government will continue to sweep up personal phone records day by day. “Don’t let the perfect become the enemy of the good,” was the refrain among Democratic and Republican supporters.

What happens next?

The ball is now in the Senate’s court. Majority leader Harry Reid (D) of Nevada says he wants Senate Judiciary Chairman Patrick Leahy (D) of Vermont and Intelligence Chairwoman Dianne Feinstein (D) of California to review the Freedom Act and report back. Senator Feinstein says she is willing to go along with a similar bill, according to the Associated Press. Senator Leahy has problems with it, including the lack of an independent public advocate in the court (the House bill allows for only “friend of the court” briefs). House Judiciary Chairman Robert Goodlatte (R) of Virginia urged the Senate to take up the bill promptly.

This Congress is hardly known for bipartisanship. Why did Democrats and Republicans agree?

After the revelations of Mr. Snowden, Democrats concerned about protecting civil liberties found common cause with small-government Republicans. The two groups worked together to find a balance with security-minded members of both parties and the White House. What emerged was this carefully and intensely negotiated bill. The House bill would have had even more support, but some lawmakers switched their votes to “no” as they realized it would pass by a healthy margin.