Tell Congress: Fix The USA FREEDOM Act

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.

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