tr-above-the-law

Last Thursday’s 2nd Circuit Court of Appeals ruling in ACLU v. Clapper threw a bomb into the middle of the debate over renewing the legal authority governing the NSA’s mass metadata surveillance programs. In a unanimous ruling, the Justices held that such programs, untethered to the limiting factor of what is relevant to a specific investigation, were never authorized under Section 215 of the PATRIOT Act.

 

Bob Litt, the general counsel of the Office of the Director of National Intelligence, scrambled to respond, arguing at a panel on transparency in DC on May 8 that the ruling is not binding on the FISC, that it is not currently in effect, and that it will be overturned soon anyway. Senate Intelligence Committee Chairman Richard Burr (R-NC), who vehemently supports mass NSA surveillance, is contending that “I think the statutory language today allows the NSA to do exactly what they’re doing […] I have a very tough time thinking the Supreme Court would look at this law […] and come to the conclusion that we didn’t empower the NSA to do bulk collection.” In the same article, Stewart Baker, the former general counsel for the NSA, is reported as deriding the ruling as a “97-page law review article” whose “significance is close to zero.”

 

Collectively, these assertions are the public face of what’s nothing less than a desperate effort by the NSA to declare itself literally above the law. But let’s take them one at a time, shall we?

  1. Does a ruling by a Court of Appeals override the interpretation by a FISC judge that mass metadata surveillance is authorized by Section 215 of the PATRIOT Act?

 

The law setting up the Foreign Intelligence Surveillance Court, or FISC, is the Foreign Intelligence Surveillance Act of 1978. § 106 of that Act specifies that “decisions under this section that electronic surveillance was not lawfully authorized or conducted … shall be final orders and binding upon all courts of the United States and the several States except a United States court of appeals and the Supreme Court.”

 

Decisions “under this section” as to the lawfulness or otherwise of surveillance, are decisions taken by the FISC. Such decisions are stated to be binding on all courts, except a United States Court of Appeals and the Supreme Court. If FISC decisions bind all courts except Courts of Appeals and the Supreme Court, then by definition decisions by the Courts of Appeals and the Supreme Court must bind the FISC. So Bob Litt is either not familiar enough with FISA, or is purposely misstating the law.

 

  1. Does the 2nd Circuit Court’s ruling coming into effect depend on a further ruling by the Supreme Court?

 

The 2nd Circuit stayed their ruling, and remanded to the district court the question of whether the program would continue, simply because Congress is currently actively considering what to do with § 215. But they also gave guidance to the district court on how to react to Congress:

 

[T]he statutory issues on which we rest our decision could become moot (at least as far as the future of the telephone metadata program is concerned), and the constitutional issues appellants continue to press radically altered, by events that will occur in a short time frame.  If Congress decides to authorize the collection of the data desired by the government under conditions identical to those now in place, the program will continue in the future under that authorization.  There will be time then to address appellants’ constitutional issues, which may be significantly altered by the findings made, and conclusions reached, by the political branches […] If Congress decides to institute a substantially modified program, the constitutional issues will certainly differ considerably from those currently raised.  If Congress fails to reauthorize § 215 itself, or reenacts § 215 without expanding it to authorize the telephone metadata program, there will be no need for prospective relief, since the program will end…”

 

The Court envisions three possible outcomes here, other than a simple lapse of § 215.

 

(A) Congress may choose to pass a revised Section 215, which explicitly authorizes mass metadata collection. This would be politically unpalatable in exact proportion to the explicitness of the authorization. If that happens, then the appellants could still receive relief for their past injury from an unlawful program, and the constitutional issues the Court did not reach would still remain alive.

 

(B) Congress may, as Senator Burr has been pushing for, reauthorize Section 215 as is; but Senator Burr’s personal belief that that will still mean the mass metadata surveillance programs are lawful and authorized, is of much less weight than the 2nd Circuit’s statement here that “if Congress reenacts § 215 without expanding it to authorize the telephone metadata program, […] the program will end.” Burr cannot, in other words, make the current § 215 say what a Court of Appeals has determined that it does not say.

 

(C) Congress may authorize a substantially reformed metadata surveillance program, conforming to the ruling, in which case that would raise “constitutional issues” that will “certainly differ considerably from those currently raised”, presumably mooting this ruling.

 

So, whether or not this ruling is mooted is dependent not on the Supreme Court, but on the choices Congress makes. The USA FREEDOM Act has now passed the House, and enjoys substantial, though possibly not sufficient, support in the Senate. If it passes unchanged, it’s probably not very compatible with the 2nd Circuit Court ruling, because it regulates mass metadata surveillance by limiting it to specific selection terms rather than by analogizing it to a grand jury subpoena process, and by allowing two “hops” of data collection from a target rather than a more-likely-conforming one hop. The district court would, if it passes, have a difficult task before it. Congress would have weighed in with a brand-new scheme that is in some ways looser than what the 2nd Circuit wants; but to rule that scheme incompatible with the 2nd Circuit would be interpreted as activist. It’s more politically likely that the district court would order relief for past unlawful surveillance and allow the new scheme time to come into being, allowing future lawsuits to be brought only when further injury is identified under that new scheme.

It’s for precisely these kinds of reasons that we continue to strongly oppose the passage of the USA FREEDOM Act. Allowing § 215 to lapse would much more clearly undercut mass metadata surveillance. The ruling also makes explicit that the preferred strategy of Senator Burr, trying to reauthorize § 215 as is, will not reauthorize the mass metadata surveillance programs and will not moot this ruling, whether it’s a short or a long-term extension. Instead, in the context of a straight reauthorization, the district court would then award relief to the appellants for their past injury, and order the end of the program as required by the 2nd Circuit ruling.

 

  1. Is it likely that the Supreme Court will overrule the 2nd Circuit?

 

The Supreme Court exists primarily to resolve “circuit splits” – differences in interpretation of federal statutes or the Constitution among the eleven Courts of Appeals.

 

There’s no split yet.

 

Since the 2nd Circuit binds the FISC, there’s no split between courts of equal authority immediately underneath the Supreme Court. There are two lawsuits where rulings are pending that relate to the government’s mass metadata surveillance programs. Of these two, the 9th Circuit is more likely to agree than disagree with the 2nd Circuit, and the DC Circuit, while likely to rule that mass metadata surveillance is constitutional, is unlikely to rule on the question of whether Section 215 authorizes mass metadata surveillance. Noted surveillance apologist Ben Wittes reluctantly makes this point here. So unless the DC Circuit goes beyond its remit, there will be no circuit split that would enable the Supreme Court to intervene.

 

Of course, the government could – and likely will – attempt to get the 2nd Circuit to rehear this case en banc. But the ruling was a unanimous one, and solely on statutory grounds – the court didn’t reach the question of whether mass metadata surveillance conflicted with the Fourth Amendment. It’s therefore very unlikely that the 2nd Circuit will grant such a rehearing.

 

All this means that, if the USA FREEDOM Act does not pass in some form, the 2nd Circuit ruling would until the next Supreme Court session in the fall, and probably till the term after that, be the last word on the legality of the government’s mass metadata surveillance programs. Congress cannot countenance the operation of illegal programs in the interim, in the hope that one day the Supreme Court will accept a writ of certiorari to resolve an as-yet-nonexistent circuit split. To do so would, as I note above, allow the NSA to operate above the law.

So, to sum up, Bob Litt, Senator Burr, and Stewart Baker are wrong. The ruling in ACLU v. Clapper is much more than a “97-page law review article” of “close to zero significance.” It is now, and will be for at least a year, the controlling law relating to mass metadata surveillance, unless Congress chooses explicitly to authorize such programs in the interim. Anyone who advises Congress simply to disregard the ruling is advocating gross disrespect for the law. No member of Congress should kid themselves otherwise.

by Alex Marthews, National Chair

When last week began, Senate Majority Leader Mitch McConnell (R-KY) was pushing hard for controversial provisions of the PATRIOT Act, due to expire June 1, to be renewed for more than five years without any changes or reform. He had the backing of Senator Richard Burr (R-NC), the chair of the Senate Intelligence Committee. He had the support of the intelligence community. But then things started to go wrong.

One of these provisions, Section 215, had been interpreted in secret by the intelligence community to authorize mass metadata surveillance untethered to any particular criminal investigation. The argument was that they had to collect the whole in order to understand patterns of communications and get to the terrorists they were after. Then, last Thursday, the Second Circuit Court of Appeals—one step below the Supreme Court—issued a stinging, unanimous ruling in a lawsuit brought by the ACLU that this argument was wrong, and that Section 215 had not authorized mass metadata collection at all. Congress, the Court said, had never explicitly and knowingly approved mass metadata surveillance programs, and if Congress wanted such programs to continue (see page 96), they would have to write that explicitly into the law.

This put McConnell in a bind. He’d been arguing for renewal of these authorities because he wanted mass metadata surveillance to continue. Now, if Section 215 gets renewed unchanged, these programs will not continue. So he needs to change tack, fast, rather than continuing to push for clean reauthorization.

After this ruling, there’s only one realistic vehicle that would continue the mass metadata collection programs (with some limits and added transparency) rather than getting rid of them entirely. So the White House, the intelligence community, and even some national security conservatives—but so far not McConnell—are swinging behind using the USA FREEDOM Act, which is expected to pass the House today.

What would the USA FREEDOM Act do? The press has generally misunderstood this bill as the bill surveillance reformers want. In reality, it’s already a delicately negotiated compromise between some reform-minded legislators and the intelligence community, with very little support from civil liberties groups. The biggest group that was working on it, the Electronic Frontier Foundation, has just pulled its support, because now the Second Circuit has ruled, USA FREEDOM’s remaining reforms look very small. USA FREEDOM would never have accomplished any of the reforms outlined in this letter supporting stronger reforms.

Call your Senator. Let them know that neither the USA FREEDOM Act nor Mr. McConnell’s renewal bill are what we need. We need Section 215 to lapse, and to consider stronger reforms like our own Surveillance State Repeal Act or Rep. Lofgren’s End Warrantless Surveillance Act. Above all, we don’t want them to be tricked into thinking that something represents reform just because it bears the label “USA FREEDOM”. We’ve been down that road before, with the unpatriotic PATRIOT Act. We won’t get fooled again.

Stay updated on, discuss, and join our fight for the Fourth Amendment. Check out our pages on Facebook and Twitter (if you’re still there getting spied on).

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.

Details

The SSRA…

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.

Stay updated on, discuss, and join our fight for the Fourth Amendment. Check out our pages on Facebook and Twitter (if you’re still there getting spied on).

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.

As the EFF wrote:

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:

1. Use the EFF’s online tool to email your representatives and tell them not to reauthorize Section 215 of the Patriot Act.

2. Urge your friends (and if you’re outside the US, you can urge your American friends) to do the same. If you’re on them, please share the tool on Facebook, Twitter , and Google+.

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.

Stay updated on, discuss, and join our fight for the Fourth Amendment. Check out our pages on Facebook and Twitter (if you’re still there getting spied on).

In a last-ditch post-midterm Hail Mary, outgoing Senate Majority Leader Harry Reid wants to get just one more
thing done before handing over to the Republicans. That thing, apparently – the single thing he thinks we as
Americans most need – is a renewal of the PATRIOT Act provision allowing mass phone data collection, bound up
in the watered-down USA FREEDOM Act. The Act promises to allow legislators to say that they have dealt with the problem of mass government surveillance. In truth, it doesn’t even come close, and may well do harm.

The key sticking point – and the reason why, among others, Sen. Rand Paul has come out against passing USA FREEDOM in the lame-duck session – is that it renews for two years Section 215 of the PATRIOT Act, which is one of the three main legal underpinnings for mass government surveillance. (It also renews Section 206, the Fourth Amendment-abusing “roving wiretaps” provision, which allows the government to wiretap multiple devices of a target who is not yet identified.) USA FREEDOM would constrain mass government surveillance of Americans, under this section of law, such that the US government would no longer hold the phone metadata of all Americans. Instead, phone companies would hold it, but would be required to hand it over to the government in a form that would permit mass analysis. It’s hard to say that that’s any better. Senator Leahy’s office, and civil liberties groups like EFF and ACLU, have made strenuous efforts to negotiate the strongest reforms that the White House will accept. As it turns out, what the White House will accept falls far short and comes at too high a price. Restore the Fourth, joined by the Campaign for Liberty and other civil liberties groups, are therefore opposing its passage.

Analyst Marcy Wheeler has identified many deficiencies and possible improvements that could be made to the bill as it currently stands. Without those improvements, it will be a worthless reform, done only for PR and to get renewal of the PATRIOT Act authorities that a Republican-controlled Senate might not agree to renew at President Obama’s request this coming June.

So, do we let the zombie USA FREEDOM Act eat our brains – by making us think that this is real reform – or do we
stand up for allowing Section 215 to actually sunset on schedule in June 2015?

The PATRIOT Act’s boosters claimed it would only ever be temporary, emergency post-9/11 legislation, and that
eventually, like the al-Qaeda threat itself, the need for it would pass away. Well, it’s half a generation later. It’s
time. Truthfully, it’s long past time.

Don’t let Harry Reid claim he really did anything to reform the NSA. And don’t let the press fall for the line that this
represents any dialing back of government mass surveillance. The actual sunset of Section 215 would do much
more to rein in surveillance than this bill would – hence Harry Reid’s Hail Mary.

Alex Marthews, National Chair

On July 29, Senator Patrick Leahy (D-VT) brought out his new proposal for NSA reform. It’s the result of an enormous amount of behind-the-scenes consultation with: reform groups like EFF and the Open Technology Institute; Democratic and Republican leaders; the White House; and the intelligence agencies. It’s a stronger reform than would have been politically possible before Edward Snowden, and it will probably outlaw bulk collection under Section 215 of the PATRIOT Act.

With all honesty, Restore The Fourth congratulates the reform groups for going through this process to get a bill to the floor. We’re recommending to our 25 chapters that they should advocate for allowing this bill to come up for a vote, and should also support the Wyden-Udall amendment tightening its language further. But we’re leaving whether to take this recommendation up to them. We cannot, as a collective organization, wholeheartedly endorse the bill as it stands.

This is why. When it comes to the Constitution, we’re unapologetic, starry-eyed idealists. We believe that the Fourth Amendment means what it says. The Fourth Amendment requires particularized warrants based on probable cause before spying on any individual. Though the act will outlaw the bulk collection authorized by Section 215 of the PATRIOT Act, it would still authorize warrantless surveillance based on “specific selection terms”, and extend the law’s sunset date from mid-2015 to the end of 2017.

Additionally, it wouldn’t necessarily mean that bulk collection will stop. As far as anyone can tell from outside the system, most bulk collection occurs under the authority of the Reagan-era Executive Order 12333, which covers foreign communications and sets few limits. Section 215 is used, along with Section 702 of the FISA Amendments Act, to backfill any gaps in what is collected under EO12333, gaps created by legal restrictions on what you can collect on Americans’ communications.

The Senate’s USA FREEDOM Act reduces the potential abuses from one of the three authorizations of the surveillance state, but it doesn’t remove any of them.

Any bill moderate enough to neutralize the opposition of the intelligence agencies and the White House is necessarily going to codify a great deal of unconstitutional behavior. The intelligence agencies won’t accept a large portion of their work being defined as illegal, even when it should be. So in practice, this bill represents the outer edge of a political compromise being hammered out, that will allow the intelligence agencies’ work to be disrupted as minimally as possible by civil liberties concerns.

Further, the surveillance agencies have a track record of lying to lawmakers, and of subjecting legislative language to gross abuses to get what they want. When Congress outlaws something, it doesn’t mean the surveillance agencies will necessarily stop doing it. It just means that when they do it, it will be more obviously illegal. It is still unlikely that anybody will actually be punished for doing that illegal thing, and hence not that likely that it will actually stop. James Clapper, Keith Alexander, and Michael Hayden don’t deserve medals and millions of dollars. They deserve felony convictions and prison meatloaf.

We must not lose sight of all that this bill fails to address. That the USA FREEDOM Act is being proposed is a good thing. But the right thing in a deeper sense, the reform that we do aim for and endorse, is a reform that: applies the Fourth Amendment to all US government actions; repeals all of the key authorities underpinning mass surveillance; and punishes the Americans who have unconstitutionally surveilled us. We will keep pushing for the day this kind of reform is on the table, and it may come sooner than you think.

Alex Marthews, National Chair

Thirteen months ago, I would never have dreamed that we’d be where we are today.

Back then, I was working professionally on surveillance reform; but there really were not many of us. The Fourth Amendment was hardly headline news. We had support from maybe 20% of Congress, but almost none from a deferential judiciary, a hostile executive branch, and an indifferent tech industry. Litigation against warrantless surveillance looked like it was at best on life support.

What Snowden did thirteen months ago shook, and is still shaking the world. The truths coming out about the NSA’s activities have reconfigured diplomatic relations, affected the profits of the world’s largest companies, and reshaped the Internet itself.

It has also had an effect on the Fourth Amendment. We have seen worldwide protests against mass surveillance. We have seen serious and continuing efforts to address surveillance reform in Congress – and also some less serious ones. The Supreme Court has swung strongly toward digital privacy, ruling unanimously in the Riley case this month that police have to get a warrant to search your cellphone. So has the House, which recently passed a prohibition on NSA backdoors by a thumping majority. Relative to thirteen months ago, the future for the Fourth Amendment looks bright.

Even with the deep corruption embedded in our politics, restoring the Fourth Amendment, piece by piece, remains a feasible goal. The surveillance state, while very powerful, can be beaten. And I am proud to say that Restore The Fourth has been a strong force in that battle.

Happy Fourth of July, everyone.

Alex Marthews, National Chair

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.

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