by Alex Marthews, National Chair
Nearly two years after Snowden began revealing them, Congress has done nothing to fix the US government’s massively abusive surveillance practices. They think Americans will be OK with an unconstitutional, sprawling, mass-surveillance empire intruding into every part of our lives. We’re not. It’s time to take a stand.
We’ve seen what happens when reformers try to nibble around the edges, when we try to pre-compromise with the intelligence community. We saw a good reform bill last session, the “USA FREEDOM Act”, get stripped of nearly everything worth doing as it passed through the process, and then it failed anyway. So this time, we’re setting out for what we’d really like to see happen–a bill that embodies our vision for a new way of dealing with security and surveillance.
Restore The Fourth has been working quietly with a new coalition of surveillance reform groups and with representatives interested in real reform, and today we’re helping to launch HR 1466, the Surveillance State Repeal Act. Co-sponsored by Rep. Thomas Massie (R-KY) and Rep. Mark Pocan (D-WI), this bill strikes at the heart of the surveillance state.
The SSRA: repeals the PATRIOT Act; repeals the FISA Amendments Act; requires the destruction of information gathered under that Act; reforms the Foreign Intelligence Surveillance Court; bans law enforcement “back doors” into our hardware and software; requires annual audits of intelligence community practices; protects intelligence community whistleblowers; and requires a probable cause warrant for information on US persons gathered under Executive Order 12333.
It is the only comprehensive surveillance reform bill in this Congress, and it deserves maximum publicity and support.
1. Repeals the PATRIOT Act and the FISA Amendments Act.
The PATRIOT Act was passed by a panicked Congress in the weeks following the 9/11 attacks. At the time, it was a wet dream for law enforcement. Since then, it’s become clear that it doesn’t meaningfully help with thwarting terrorist attacks. What it is very good at is legitimating activities more appropriate for the East German secret police than for a free republic. Secret national security letters that recipients can’t talk about or challenge. Phone metadata dragnets sweeping up calls from Pawtucket to Peoria. So-called “roving wiretaps” that deeply violate the Fourth Amendment requirement for particularized probable cause. This was all meant to be “emergency” legislation. The emergency is long past, and it’s time to bury the PATRIOT Act in the unhallowed ground it deserves.
The FISA Amendments Act was passed after the Bush administration’s illegal mass surveillance became public. Its purpose was to give a vague color of law to their intentional violations, prevent their prosecution, and also give immunity to the criminals running our telecommunications companies who went along with administration requests rather than protecting their users. It also turned the Fourth Amendment on its head, by approving warrants connected to a “program” rather than a person. Not only would SSRA repeal the FISA Amendments Act, but it would require the destruction of any information gathered under it.
2. Reforms the Foreign Intelligence Surveillance Court set up after the surveillance scandals of the 1970s.
It increases the independence of judges by extending their terms from seven to ten years and allowing them to have multiple terms on the Court. It allows technical experts to be appointed to assist the judges in forming a more critical and independent view of administration demands.
3. Bans the farcical practice of mandating “back doors” for government access to hardware and software.
Computer security can’t be designed to provide a “magic golden key” to the US government (while also making systems vulnerable to foreign governments and black-hat hackers). You’re either vulnerable or you’re not. The US government should be promoting secure cyber-infrastructure, not holding conferences on how to weaken it.
4. Improves transparency by requiring the GAO to audit domestic surveillance annually.
Famously, there’s a GAO room at the NSA that is empty, because too many members of Congress don’t want to appear unpatriotic by calling on GAO to investigate a surveillance agency. Required annual audits would overcome that problem.
5. Sets out whistleblower procedures for employees of or contractors to intelligence agencies, requires the Comptroller General to investigate and report on their complaints, and prohibits retaliation against them.
6. For the first time, meaningfully limits collection under Executive Order 12333, requiring (for US persons) a valid warrant based on probable cause.
In short, this is a blockbuster bill. If passed, it would undo much of the enormous damage done to the Bill of Rights after the September 11 attacks. It would return us to a path we should never have left, where we investigate Americans only when we have reason to. At the same time, we believe it will increase our actual security. We have been trying too much to control our own citizens and the world by surveilling them into sullen and resentful silence; we make a desolation, and call it peace. If instead we practice justice, promote peace, and let people pursue their ideas and aspirations freely, we will be far more secure in the long run.
Here is an action alert from the coalition promoting the bill. Please sign up today and ask your friends to do the same.
Since being signed into law in November 2001, the USA PATRIOT Act has given the government the capability of spying on its citizens in a fashion that is far beyond constitutional, or even what its original author intended.
In 2013, we learned that the scale of these transgressions is even greater than we had known. One part of what we learned is that the NSA is recording the calling records of millions of innocent US citizens, and citing Section 215 of the act as its legal justification. It does this—and Congress continues to reauthorize the Patriot Act—despite the fact that it’s a clear violation of the Fourth Amendment, and a superfluous-at-best tool for keeping the United States and its allies safe.
The NSA’s defenders argue that invading our privacy is the only way to keep us safe. But the White House itself, along with the President’s Review Board has said that the government can accomplish its goals without bulk telephone records collection. And the Privacy and Civil Liberties Oversight Board said, “We have not identified a single instance involving a threat to the United States in which [bulk collection under Section 215 of the PATRIOT Act] made a concrete difference in the outcome of a counterterrorism investigation.”
Since June of 2013, we’ve continued to learn more about how out of control the NSA is. But what has not happened since June is legislative reform of the NSA. There have been myriad bipartisan proposals in Congress—some authentic and some not—but lawmakers didn’t pass anything. We need comprehensive reform that addresses all the ways the NSA has overstepped its authority and provides the NSA with appropriate and constitutional tools to keep America safe.
The good news is that Section 215 expires in less than three months, which means that our goal in the period between now and June 1st must be to take whatever strides we can to stop Congress from reauthorizing it. We’ll keep you updated on our efforts and that of other organizations to do so, but in the meantime, here are two things you can contribute to the fight against Section 215:
Thank you for your help here. It is an important step in stopping Section 215 from being reauthorized, and eventually achieving the comprehensive reform that we so badly need.