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