We Need Real Surveillance Reform, Not The House’s “USA Freedom Act”

Last week, the House of Representatives passed the bill called The USA Freedom Act, 303 votes to 121. Following a series of amendments, the bill as it passed in the end contained much weaker reforms than even the very modest ones it originally proposed. The Chair of the Judiciary Committee’s manager’s amendment removed two-thirds of its substantive reforms; the Chair of the Intelligence Committee and the White House worked hard to remove as much as possible of what remained, leaving a shell that will still permit mass surveillance.

The Fourth Amendment is clear: Mass surveillance is unconstitutional. A government search is unreasonable, and therefore unconstitutional, if it is not authorized beforehand by a warrant issued by a judge, on the basis of “probable cause” of involvement in an actual crime, supported by an “oath or affirmation, and particularly describing” the “persons or things to be seized.”

That’s what ought to happen. This bill, on the other hand, would allow government searches of millions of innocent people’s data and movements, not based on probable cause or even reasonable suspicion of their personal involvement in a crime, but simply on any “selection term” vaguely associated with a target of surveillance.

The “selection term” could be as broad as the government likes, covering, for example, everyone born in Hawaii, or everyone with the middle name Hussein. The argument for this “reform” that supporters are touting is that this is better than the current government practice of collecting everything with no selection term at all. While that’s true, it misses the larger point. The standard is individualized probable cause warrants, not “whatever is most convenient for the NSA.” A standard that can be redefined at will is marginally – if at all – better than having none.

As a terrible coda, the bill’s last section extends out the sunset of crucial parts of the abusive PATRIOT Act from 2015 all the way through till 2017. Apparently, fourteen years of “emergency” privacy-violating legislation is still not enough to defeat the people who attacked us on 9/11, and we need sixteen. Given this extension, were this bill as it currently exists to be signed into law, it would be a net negative for the Fourth Amendment.

The only merit in the bill having passed is that it provides something with which the Senate’s superior version of the USA Freedom Act can be reconciled in conference. We urge the Senate, and especially the Judiciary Committee, to fight hard for the Fourth Amendment in the next few months by advancing as strong a bill as possible – much stronger than this one. The USA Freedom Act, in its original form, was popular enough in the House to have passed unamended, had it been allowed to come to the floor. In the Senate, the same may well be true, and our next steps on Capitol Hill will be to work to make that happen.

When we look back in a generation at the era of our out-of-control surveillance state, we will wonder why we didn’t take the Fourth Amendment as seriously as our Founders took it. We will feel shame that we were willing to sell our Bill of Rights in an attempt to thwart the same terrorists said to be attacking it. The sooner we replace this act with actual reform, the sooner our out-of-control surveillance state will finally be a thing to look back on.

Alex Marthews, National Chair.

Tell Congress: Fix The USA FREEDOM Act

Today of all days, May 21, is the day to call Congress on NSA reform.

Let me sketch out briefly what has been going on.

Six NSA reform bills were proposed. One, the “USA FREEDOM Act”, gained particular traction – it was cosponsored by the influential Sen. Patrick Leahy (D-VT) and Rep. Jim Sensenbrenner (R-WI). It was a partial reform at best, relative to other measures like the Surveillance State Repeal Act, but it would have been a good start, and civil liberties groups like ours coalesced in support of it.

The USA FREEDOM Act got stuck for months in the House Judiciary Committee, and it was unclear whether it would ever get out of it. Simultaneously, the surveillance-friendly leadership of the Intelligence Committees in both House and Senate proposed more NSA-friendly bills. Responding to substantial public pressure, and notwanting his committee to be pre-empted by the Intelligence Committee, House Judiciary Chair Bob Goodlatte (R-VA) brought the USA FREEDOM Act forward for markup and a vote. What he brought forward, however, was not the same as the USA FREEDOM Act civil liberties groups had agreed to support.

It was instead a “manager’s amendment”, cut to around 35 pages from around 120, stripping out much substantive reform and oversight, extending the sunset for the PATRIOT Act from 2015 to 2017, and leaving the bill as little more than a shadow of reform. As part of a deal between Judiciary and Intelligence, the cut-down bill passed both committees, but Intelligence Committee Chair Mike Rogers (R-AL) insisted on being able to make “technical adjustments” to the bill so as not to “disrupt operational equities of the NSA”.

Yeah, I know. For reformers, a reform bill that didn’t “disrupt” the unconstitutional “operational equities of the NSA” would be not worth doing.

Rogers, in concert with the White House, stripped out transparency provisions that would have given the public a little more information about data requests to tech companies by government, and broadened out the language of what would be a “selection term” that would serve as a basis for collection to such a degree that the USA FREEDOM Act no
longer prohibited bulk collection.

At this point, civil liberties groups, including ours, cannot support the bill as it stands. At the same time, we recognize that a floor vote today will keep the issue alive, and allow the Senate to move forward with their (currently stronger) version of reform. So this is what we’re recommending.

1. An amendment striking Title VII of the current bill, which would mean that the PATRIOT Act provisions sunset when they’re supposed to in 2015. We can’t support extending any farther this unconstitutional and allegedly “emergency” legislation. Fourteen years is far too long already.

2. An amendment defining the “selection term” language so as explicitly to exclude collection of data on any other than an individualized basis. The Fourth Amendment requires the government to have individualized probable cause, in the form of a judicially executed warrant, before conducting surveillance, and that must be the standard here.

Please call your congressperson to urge these amendments. Let’s see what we can get.

Alex Marthews, National Chair.