Renewing Mass Surveillance Just Got A Whole Lot Harder

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.

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