Perhaps you’ve been following the continuing debate in Congress on NSA surveillance, and the expiration of Section 702 of the FISA Amendments Act that makes the dragnet possible. If so, then you likely heard that Thursday the House voted down Rep. Amash’s amendment, the USA RIGHTS Act, that would have given us real mass surveillance reform. You may also know that they approved a bill, S.139, which extends Section 702 for 6 more years.
Here’s how your representatives voted on:
We still have a chance for meaningful surveillance reform this coming Tuesday when the Senate takes up S. 139. We need 41 senators to come to the aid of the Constitution by voting no on cloture for S. 139. 27 Senators voted yesterday against the Senate considering S. 139 at all, so we only need 14 more.
If S. 139 were to pass, that would not only mean six more years of the NSA spying on American citizens, but also an expansion of ‘about collection’ abilities by law enforcement.
A no vote for cloture on S. 139 will stop it from even being considered, and open the door to considering real reform. We’re urging everyone to contact their senator’s office – but especially if you are a constituent of one of the pivotal senators below.
- New Hampshire
- New Jersey
- New York
After much Congressional debate to expand or reform NSA surveillance late last year failed to deliver a conclusion before the sunset of Section 702 of the FISA Amendments Act, it was temporarily extended to January 19th as part of a continuing resolution. to On January 5, the Rules Committee for the House of Representatives introduced S. 139, the first proposed bill since that sunset and extension.
As-is, this bill would not reform NSA surveillance programs to be in line with the Constitution. In particular, it lacks a strong warrant requirement. As such, Restore the Fourth is not supporting this bill. Currently, we are asking people to contact their representatives and urge them to support the one amendment being allowed to S. 139, which would replace it with Rep. Justin Amash‘s excellent USA Rights Act. This would:
- End backdoor searches and require warrants
- Close a loophole where law enforcement could engage in ‘reverse targeting’ such that they ostensibly choose a foreign target when their true interest is a US citizen that target is communicating with
- Codify the ban on ‘about collection’
- Restore the Privacy and Civil Liberties Oversight Board’s authority to report on foreign surveillance programs
“The USA RIGHTS Act is the best chance for real reform in a decade. Congress should grab this chance to restore our lost liberties with both hands.” -Alex Marthews, National Chair, Restore the Fourth
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To the surprise of few, Congress is once again failing to function. Congress is in a pickle, and is structurally unable to return to anything resembling “regular order”; The reform or renewal of Section 702 (which allows the infamous ‘backdoor searches’ on American citizens) may be kicked down the road to the spring as a result; we should watch carefully who becomes the new Ranking Minority member of the House Judiciary Committee.
The budget process in Congress is so broken that it has only “worked” (in the sense of having all 12 appropriations bills pass both houses on time) four times in the last forty years. Congress has increasingly relied not on the individual committees, but on the leaders of the House and Senate to pass “omnibus” appropriations bills, and to draft “continuing resolutions” (or CRs) to keep the government open in the interim at existing funding levels.
The strategy of threatening repeated shutdowns of the government, in the manner of Sen. Ted Cruz and the Freedom Caucus, has proved highly successful for Republicans. Not only have voters not punished them for it; voters have rewarded them by giving Republicans control of the House, the Senate and the Presidency. In response, the bureaucratic state – the officials in senior civil service positions – have tried to minimize the damage of shutdowns by defining which employees and departments are essential enough to not be shut down.
In practice, this means that the kinder and more laudable parts of the federal government – the national parks, help for the elderly and disabled, scientific grantmaking – get shut down, but the government’s mass surveillance programs and the bloated Department of Defense get to continue spending money like water for the sake of “national security.”
The 702 surveillance reform debate
702’s surveillance authorities expire as of December 31. All the time is being sucked up with arguments over whether there will be an omnibus spending bill, and if so, what compromises will be acceptable to both Democrats and the Freedom Caucus. The deadline to fund the government is this Friday. We’re expecting there to be a two-week “continuing resolution” Friday to give space for a broader “omnibus” spending bill to pass by December 22, enabling Congressmembers to head home for Christmas and New Year’s. So what will happen to 702?
Well, the intelligence community has begun to float the idea that maybe the legal authorities for mass surveillance don’t absolutely need to be renewed by December 31 after all. This is because mass surveillance depends on programmatic “certificates” issued by the FISA Court. These were last approved on an annual basis on April 26, giving the intelligence community potentially four extra months to persuade Congress to let them continue doing an end-run around constitutional protections for US persons before they really start to panic.
If that happens, it will provide more space for reformers as well, because of an absence of congressional consensus to formally renew these authorities. At the same time, it may be that the leadership of House Judiciary will change. John Conyers, the ranking minority member, has retired under a cloud of sexual harassment allegations. Rep. Jerrold Nadler is the acting ranking member, but it looks like ardent surveillance reformer Rep. Zoe Lofgren is thinking of challenging him for the position. If she were to become the ranking member, it would substantially brighten the prospects for real reform of 702 surveillance authorities.
Mass surveillance should be debated on its own, not reapproved quickly in the early hours of the morning at the last possible moment when nobody is looking. Four months may give us the time we need to get Congress to a better place on 702 mass surveillance.
Fixing The Problem
The hard truth is that the broad problem of the collapse of regular order in Congress is very unlikely to be fixed, because fixing it requires members of Congress to act against their immediate interests. If the recent tax bill had not been stampeded through with no hearings and no time for anybody to read it through, it would not have passed, and Republicans would have no victory to go home with to their voters. There are no votes in restoring regular order, and no officeholder will lose office as a result of Congress’s spectacular and increasing dysfunction. A president so passionately committed to process that he or she did not mind not having a policy legacy of any kind, could restore regular order by vetoing any bill not passed in a procedurally correct manner; but it seems unlikely that Congress can correct it on its own. The best we can manage is Senators who will bleat about how terrible the process is, but then vote for the result anyway.
- The Senate Intelligence Committee leadership’s “FISA Amendments Reauthorization Act” would renew Section 702 for eight years, explicitly codifies the use of intelligence data for domestic surveillance and to investigate domestic crimes unrelated to terrorism, and is being debated in secret.
- RECOMMENDATION: KILL IT WITH FIRE
- The House Judiciary Committee leadership’s “USA Liberty Act” would improve the administration of the FISA Court but would renew Section 702 for 5.5 years without fixing the FBI backdoor searches problem, where the FBI uses searches of NSA data to get around the Fourth Amendment’s warrant requirement.
- RECOMMENDATION: ALSO KILL WITH FIRE
- Now we come to the only realistic proposal on the table that would actually go a long way to fix the problems with Section 702 surveillance: Sen. Wyden’s and Sen. Paul’s just-introduced “USA RIGHTS Act.” It has also been introduced in the House by Rep. Zoe Lofgren (D-CA), Rep. Ted Poe (R-TX) and Rep. Beto O’Rourke (D-TX).