It is sometimes very hard for members of Congress to choose to do the right thing. In the context of government surveillance, the broad and easy way is to let the intelligence agencies have their way. After all, nothing about you is beyond their reach, and they’re happy to accuse defenders of our privacy of being childish, oblivious to national security, or even in league with terrorists. Better, so often, to not risk it, and let the agencies buy, hold and exploit our data to their heart’s content.
To their immense credit, though, the House Judiciary Committee is standing up for Americans’ privacy. On December 4, Chair Jordan, Ranking Member Nadler, and Judiciary Committee members Biggs, Jayapal, Davidson, Jacobs and Fry, introduced the Protect Liberty and End Warrantless Surveillance Act (“PLEWSA”), and the Committee is expected to mark it up Wednesday, Dec. 6.
The bill is the latest development in the roiling fight over whether and with what privacy protections Congress should reauthorize the extremely controversial warrantless spying power known as “Section 702” (“7-OH-2”) of the Foreign Intelligence Surveillance Act (FISA). In that fight, the Intelligence Committees, instead of trying to protect U. S. persons’ freedoms, have been trying to preserve the freedom of the FBI and CIA and NSA to delve into U. S. persons’ communications almost at will. The execrable Senate Intelligence bill extends surveillance authorities to 2035, revives other long-lapsed powers, and insults the intelligence of the American public by creating a fake “warrant rule” for agency U. S. person queries of the NSA’s enormous foreign intelligence database, that would cover less than one in 100,000 of the actual queries they make.
PLEWSA makes clear that the House Judiciary Committee, unlike the Intelligence Committees, takes seriously the need to enact major protections for Americans’ privacy. This is a rare area where lawmakers who otherwise differ greatly, like Chairman Jordan and Ranking Member Nadler, are coming together across the aisle, to engage in mature and responsible decision-making, and craft a bill that responds to ordinary Americans’ concerns. Together, they have created a path to close Section 702’s dangerous backdoor search loophole, to prevent agencies from secretly buying our sensitive information from data brokers, and to create real accountability and oversight.
PLEWSA includes several major privacy protections for Americans, including some adopted from the celebrated, bipartisan Government Surveillance Reform Act. It puts the bills announced by the House and Senate Intelligence Committees to shame. Among other things, this legislation:
- Requires a warrant for US person queries, closing the 702 backdoor search loophole.
- Includes the Fourth Amendment Is Not For Sale Act, closing the Data Broker Loophole for location and other sensitive information by prohibiting government agencies from buying it from data brokers.
- Includes the Lee-Leahy amendment, strengthening the FISA Court and FISC amici.
- Strengthens accountability for abuse of Section 702 information, including escalating consequences.
- Prohibits the NSA from restarting “abouts” collection, which is prone to immense incidental impact on people in the US.
PLEWSA doesn’t solve every warrantless surveillance issue that Congress should address, and most significantly, does not reach spying on Americans under Executive Order 12333. Despite that, it represents a serious effort to address the continuous abuse of government surveillance powers.
Our scandal-ridden intelligence agencies have been caught harassing and stalking the American people one too many times. For years, they have been treating giving money to a cause, protesting, and questioning the government as grounds for reasonable suspicion, instead of as the lawful and appropriate activities of a free people. They’ve been trawling through millions of Americans’ communications without a warrant, and if they can’t get a warrant, they’ve been just buying their way around one by getting our personal information from data brokers. It’s time for a restraining order, and this bill, PLEWSA, does the job. This is a strong, responsible bill that protects U. S. persons’ security and privacy. PLEWSA doesn’t bar the intelligence agencies from collecting relevant information; it simply requires them, as the Founders intended, to get a warrant by default for queries involving a U. S. person. Thanks to the dedicated work of experts in the field, the bill offers well-thought-out exceptions for emergencies and for situations where they have explicit consent. PLEWSA would force the agencies to grow up and start respecting the citizens they are sworn to protect, instead of delving into our communications whenever they see fit.
Alex Marthews, National Chair of Restore The Fourth.