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.
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.
The elected officers of Restore The Fourth endorsed the new “Shut Down The Spy Centers” Day of Action planned for April 10.
There are now 85 spy centers (also called “fusion centers”) across the nation, with more opening up in 2014 in Puerto Rico, the Virgin Islands, and Guam. When they began ten years ago, they were intended to provide “joined-up intelligence” to prevent terrorist attacks. What they have become is very different. In fact, the Senate investigated in 2012 and found that no spy center had ever thwarted a terrorist attack, despite over $1 billion in federal spending and substantially more from the states. There just isn’t enough actual terrorism to go round. Instead, the spy centers are spending their time and money doing something much easier – helping local and state police harass peaceful activists and suppress First Amendment-protected activity. Now, just last week, the New York Times revealed that in early 2012 the spy centers were given ongoing access to all data collected under the Foreign Intelligence Surveillance Act. The spy centers now give your local police access, without a warrant, to all the data the NSA has on you, going back at least five years and covering every single US resident.
The Constitution is clear. The Fourth Amendment says that “no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” You can’t just declare that the government can collect an ocean of data on everybody and no warrant is needed because terror.
Our cross-partisan coalition includes the Bill of Rights Defense Committee, CodePINK, Critical Resistance, Digital Fourth and the Electronic Frontier Foundation. Restore The Fourth chapters in Los Angeles, the San Francisco Bay Area, Montana, Pennsylvania and Boston are helping to move the effort forward.
We are demanding (1) that the fusion centers release the secret files held on Americans not suspected of any crime; (2) that, in view of this massive waste of public funds, state governments withdraw funding for fusion centers; and that the fusion centers be shut down on Constitutional grounds.
It’s time for our post-September-11 national security panic to end, and for us to live lives free of Big Brother.
One way to beat the NSA at its own game: Adopt a highway.
For its big Fourth of July protest, the Salt Lake City chapter went to the NSA’s soon-to-open massive data collection center. Armed with signs, the group gathered on a vacant lot outside the center, only to be met with NSA employees who forced them to leave. The NSA beat them on a technicality — though the lot is vacant and used for parking by lots of people, the federal government is the owner.
Lorina Potter laughs, somewhat bitterly. “You can watch everything we do but we can’t even protest?”
Lorina and the rest of the Restore the 4th chapter went back to the drawing boards. “What are we going to do to overcome this?” they mused.
“We knew this was going to be a huge problem,” Lorina said.
Someone threw out the half-joking suggestion: Let’s adopt the highway in front of the center.
Salt Lake City is ready, Lorina said, to host its first protest/litter pickup just in time for Saturday, when people will gather in Washington, D.C., for a national protest on the anniversary of the Patriot Act.
“I’ve still got work out the logistics,” Lorina said. “We may use the buddy system — one person carrying a sign as one person picks up trash.”
However the logistics play out, the Restore the 4th chapter will be well within its legal rights and out of harm’s way from the NSA.
The Utah chapter’s Adopt a Highway has made headlines, first hitting the Salt Lake Tribune, quickly followed by local TV coverage and a story with the Associated Press. The AP story was picked up by the Washington Post. And Lorina answered the phone Thursday, only to discover Ron Paul on the other end. Paul interviewed her for a segment on his RonPaulChannel.com, set to air this week.
“I’m excited because we’ve gotten so much free press” for both the Utah chapter and the nationwide Restore the 4th effort, Lorina said. She laughed. “You can only share so much information with your friends before they stop reading it.”
And as a permanent reminder to the NSA that the watchers are being watched, the chapter will have two signs posted on the highway proclaiming, “Adopt a Highway Utah, Restore the 4th.”
Daniel Cole was looking for a non-binding referendum opposing NSA spying. What he got was even better. The Rochester City Council wrote a letter directly to Congress.
When Dan appeared before the city council, he was well-armed with a great speech, well-researched background information to distribute and copies of a resolution the council could make its own. The council listened attentively but didn’t commit to anything.
Dan didn’t give up. He contacted the mayor’s aide at least once a week, by phone and by email. “I got the ‘talk-around,'” Dan said. Eventually, the aide let Dan know that the council doesn’t do resolutions, particularly if they don’t relate to city business, so it just wasn’t going to happen. Instead, the aide suggested the city draft a letter to New York’s U.S. senators and Rep. Louise Slaughter, a Democrat who represents the city and voted no on the Amash amendment.
Much to Dan’s surprise – and delight – it happened. A few weeks later, when Dan was hoping to see a mere draft, the aide sent Dan a copy of a letter that had been drafted, signed by all the council members and mailed. Signed, sealed, delivered.
The letter was a stern reminder to Slaughter and New York’s Democratic senators Kirsten Gillibrand and Charles Schumer that the council had warned the delegation of dire consequences when the Patriot Act was reauthorized in 2006. “… where do we draw the line between protecting our citizenry and country and destroying the very values upon which our republic has thrives?” says the letter. Where, indeed?
Dan said he believed his success with the Rochester City Council was two-fold. First, the Rochester Restore the 4th chapter held a sizable and successful rally on July 4. “People couldn’t stop talking about it for weeks and weeks,” he said. So the council members knew how outraged the citizens of Rochester are. And, secondly, and most importantly, was Dan’s physical act of appearing before the council. Dan said his actual appearance seemed to act as a catalyst for council, giving them a concrete reason to act on thoughts the members already privately held.
Dan made it easy for them. He provided a resolution, he provided all the background information and he provided plenty of research. “If you can provide it all for them, it just increases your chances of them (writing a letter or passing a resolution),” he said. And he followed up. Dan sent emails to each city council member, thanking them for signing and sending the letter.
Just as a physical letter sends a stronger message than an e-mail, a letter from a city council sends a much stronger message than a letter from an individual. If we want Congress to take action to end unconstitutional surveillance, we need them to hear our voices. But we also need them to know they aren’t going to stop hearing our voices, that our voices and capable of influencing things like elections. If a City Council decides it needs to take notice of opponents of unconstitutional surveillance, that sends a strong message to your representatives in Congress that they need to as well. Slaughter, Gillibrand, and Schumer didn’t just get a letter from Dan. They got a letter from Rochester.
If you’re interested in emulating Restore the Fourth Rochester’s activism with your own city council, feel free to use these resources for reference or as templates:
Two people. Two hours. One hundred people reached. That’s how Christy Johnson and the Birmingham chapter pulled off a Constitution Day event on September 17th.
“Constitution Day was too good of an opportunity to pass up,” said Christy. “But it fell on a Tuesday, when we knew people would be at work.” So she and another volunteer set up shop during a long lunch hour at Linn Park, which sits between the Birmingham City Hall and the Jefferson County Courthouse, picking a time when the park is packed with lawyers and jurors and other citizens on government business.
“Our goal was to get in front of a lot of people and make it matter to them personally,” she said. They spread out, individually approaching people in the park, taking time to explain to each person how his own individual cell phone is accessed by the federal government, how the government is tracking every number he calls.
Christy told us that many people were unaware of the NSA surveillance and shocked by the idea of the government spying on them. “Only one person said he was fine with the surveillance, if it meant the nation was safer,” she said.
They handed out flyers outlining the Fourth Amendment and NSA issues along with pocket-sized copies of the U.S. Constitution and American flags, wishing everyone a Happy Constitution Day.
“We have made it a large part of our mission to be educational,” Christy said. “We feel like if we can raise awareness and educate people, then people will connect the dots for themselves.”
The Birmingham group did not seek any sort of permits for the gathering and did not have any problems. When approached by a policeman, he only said he was glad to see people concerned about NSA surveillance. “It’s cool to know that even people in law enforcement feel the government has overstepped its bounds,” Christy remarked.
The Birmingham chapter is working hard to keep the NSA surveillance issue in the forefront of citizens’ minds in every way, from non-binding resolutions, to “papering” events, to meeting with a Congressman.
The chapter’s next step is to meet with Birmingham’s city council members to ask for a non-binding resolution condemning the use of drones for domestic surveillance. “It’s only a message. It’s non-binding, but at least the message will be sent,” she said. Christy has hopes the resolution will happen, even though, ironically, Alabama state leaders are working to recruit drone manufacturers to operate in the state.
Chapter members met with Congressman Spencer Bachus, a Republican representative for parts of the Birmingham area, to express their concerns. They were surprised when Bachus enthusiastically agreed with Restore the 4th’s message. Bachus was the only Alabama representative to vote for the failed Amash amendment in July.
Just as in Austin, the Birmingham march on July 4 encompassed a cross-section of Alabama folks *Tea Partiers marching with Occupiers, 60-year-olds alongside teenagers. “What makes this successful is our focus on a singular issue,” Christy said. “I really believe that’s what makes this bulletproof. We won’t be divided and conquered.”
Alongside the flyers on Constitution Day, Christy taped up a copy of the feisty Alabama state motto: “We Dare Defend Our Rights.”
“If anybody is gonna roll over and take it, it better not be Alabama!” Christy vowed.
Last Wednesday, the House voted on an amendment proposed by Rep. Justin Amash of Michigan, that would have effectively ended the warrantless collection of phone metadata the NSA claims is allowed under the PATRIOT Act. The amendment lost by a narrow 12 vote margin, 205-217, and blurred party lines. This may seem like a defeat, but 205 is a much larger number than anyone was expecting. 134 Republicans voted ‘no’ and 94 voted ‘yes’. The Democrats had a slightly stronger showing, with only 83 voting ‘no’ and 111 voting yes. This is in sharp contrast to past votes relating to unconstitutional surveillance, like the 2011 vote to extend the PATRIOT Act, which passed 250-153 and which only 31 Republicans voted against.
We got there thanks to all of you, who volunteered your time to clog your Representatives’ phone lines just before the vote and went online to make sure others did as well. Because of our work, restoring the Fourth Amendment is at the forefront of the national conversation. With a new poll showing that 56 percent of Americans think the government has overstepped its bounds in collecting personal data, and intense pressure on Washington from citizens of all political persuasions to rein in its surveillance programs, it may only be a matter of time until Congress successfully votes to put a halt on the NSA’s surveillance activities.
Now what can we do? We can keep up the pressure on the government. We can make sure this issue doesn’t fall out of the public view. Many movements succeed in bringing a lot of attention to their cause, but only those that maintain it are ultimately successful. If your representative voted for the Amash Amendment, call and give them your thanks. If not, call to say you took note of their decision to vote in favor of unconstitutional surveillance, and hope they won’t make the same mistake next time – if they’re still in office to make it. Keep spreading the word about unconstitutional surveillance and those voting for it on Facebook, Twitter, and reddit.
But while calls and social media activism help, they fall far short of meeting with your Congressman face-to-face. Starting on August 5th, our representatives will return to their home districts for a full month. This is our chance to lobby them directly. They spend all year listening to corporate lobbyists and intelligence heads; now, they get to hear from us. This August, we take the fight to their doorsteps. 217 representatives are now on record as being just fine with unconstitutional surveillance. We’ll tell them why that’s just wrong.
Organizing a meeting is simple. If you’re as bold as Restore the Fourth New York, you can just walk in and demand one. But formally organizing one is easy too: all you really need is a phone, a computer, and a bit of persistence. Attending a meeting is even easier. We only need to convince seven reps to tip the scale and consider it a victory, but if we convince many more, we can consider it a resounding success. Free Press has put together a tool that simplifies the process of organizing and recruiting for meetings. Join a meeting near you or schedule your own. Either way, take advantage of this rare slice of time to meet with your elected representatives and explain why this issue matters.
Just as face-to-face meetings with representatives are more effective than letters and phone calls, on-the-ground promotion is the most effective way to get more people to join, and media outlets to follow the issue. And that’s what we need to do on 1984 Day on August 4th. When we protest unconstitutional surveillance, we must make sure the citizens that hear us also take advantage of this opportunity. Congress’ summer recess starts the day after, and we must use 1984 Day to make sure all defenders of the Fourth Amendment know and take advantage of it.
A crucial vote is about to take place in the House of Representatives on a bipartisan amendment that would “block funding for NSA programs using Section 215 of the Patriot Act to mass collect the call records of innocent Americans.” This is a major turning point in the battle for the Fourth Amendment and against unconstitutional surveillance, and we need to act fast and flood Congress with calls in support of the amendment.
Yesterday Congress received more than 60,000 calls and 100,000 emails in support of it, and those working on Capitol Hill tell us the pressure we’re putting on is being noticed by lawmakers, the White House, and the NSA alike. Last night we learned that the vote has been delayed from early today to either this evening or Thursday, giving us an extra day to call Congress. We need to use this extra time to our advantage and make sure at least another 100,000 Americans speak out in favor of defunding NSA spying.
Blocking funding for these programs would be a huge policy change in favor of privacy and the Fourth Amendment. But even if the vote to amend the bill narrowly falls short, or the amended bill is vetoed, getting 200+ representatives to vote for the amendment would be a great momentum boost for our movement and a mortal wound against unconstitutional surveillance. Above all, we can’t let this vote get defeated by a wide margin and let the NSA think they have nothing to be afraid of.
So we need to do two things today:
- Visit defundthensa.com, set up by Demand Progress and Fight for the Future, and use it to call Congress and tell your representatives to vote to defund unconstitutional surveillance. Then urge your friends and family to do the same.
- Visit the thunderclap and pledge to spread the word about this vote on social media.
This is in our hands, but we need to act fast, so let’s go.
The tide is turning against the NSA’s unconstitutional surveillance programs. Tuesday, a diverse group of political advocacy groups and other associations filed suit against the NSA for “violating their First Amendment right of association by illegally collecting their call records.” Today, dozens of organizations including Apple, Facebook, Google, Microsoft, and reddit will release a letter demanding “dramatically increased transparency around U.S. government surveillance efforts.” Two-thirds of Americans support public congressional hearings on these programs. Yesterday, the House Judiciary Committee began such hearings, which AP described with the headline “NSA spying under fire.”
These organizations and the American people are right to fear the NSA’s secret and unconstitutional collection of private information, the threat of which goes beyond the illegality and the ongoing violation of your privacy. For instance, Edward Snowden demonstrated that the NSA’s internal safeguards are not effective at controlling their employees’ or their contractors’ access to information. Who knows what someone with different intentions but access to the same information might have done? Additionally, we’re setting the precedent that it’s OK for the government to violate our rights and privacy this way, and allowing our government to create more and more tools with which to do so. This brings us much closer to the wide-scale use of spying as a political tool, something oppressive governments have employed throughout history.
While yesterday’s hearings were a step in the right direction for Congress, it was also revealed that the NSA can look at telephone and Internet data not only from a suspected terrorist, but from “everyone that suspect communicated with, and then from everyone those people communicated with, and then from everyone all of those people communicated with.” As the momentum to challenge unconstitutional surveillance builds, the magnitude of the threat does as well. Both of these are strong reasons to increase efforts to spread awareness and pressure the government to take additional action.
George Orwell’s novel 1984 is a chilling vision of what might lie ahead if we don’t take action. While the technology used in the novel is different, the basic principles are the same. And while we may not live in a society like Orwell described this year, or next, that is only because of the vigilance we have shown in preventing it, and now that vigilance is needed as much as ever.
That’s why we’re calling August 4th “1984 Day.” From marches in NYC and Los Angeles to speeches by policymakers and whistleblowers in San Francisco, Restore the Fourth chapters across the country will be observing 1984 Day to remind policymakers that 1984 is a warning, not an instruction manual, and to warn Americans what might happen if they let themselves believe national security requires disregarding privacy, individual rights, and the rule of law.
Just as our protests on July 4th got the attention of the NSA as well as that of national and international media, 1984 Day’s events will serve as a reminder that our protests were not just a party. To capitalize on our great work two weeks ago, we must teach them that it was the start of a still-growing movement, one that will not stop until unconstitutional surveillance is ended. This will be Restore the Fourth’s second set of simultaneous nationwide events, but instead of each city hosting a protest, this time different local chapters will be experimenting with a variety of event types, from rallies to speaking engagements to street theater and much more. While some already have something scheduled, most of the local organizers that put together July 4th’s protests are convening now to decide what 1984 Day’s events will be. Remember to subscribe to our newsletter and check out the national Facebook event page so that you receive updates on newly scheduled events, especially if there isn’t one planned for your area yet. If you’re interested in helping, e-mail firstname.lastname@example.org and we’ll either put you in contact with those already working on it or set you up to take the lead yourself.
It’s 2013 and 1984 still hasn’t quite come. By working together on August 4th, we can make sure it doesn’t come in 2014 or any other year either.