As key provisions of the Patriot Act are about to expire in June, Congress is in a big hurry to figure out how to reform surveillance. The House just overwhelmingly voted in favor of the USA Freedom Act, a bill that’ll limit the NSA’s bulk data collection.
Unfortunately, it may not be able to fix the United States’ broken surveillance apparatus.
The USA Freedom Act would prohibit using Section 215 to authorize the NSA’s bulk data collection program, as well as FISA’s pen/trap statute and national security letters. What that means is that if the bill passes, the NSA won’t be able to scoop up data en masse from telecom companies like it did before; instead, it would be required to request data using keywords. The act also declassifies big FISA court opinions.
Those are good things! And with its patriotic name engineered to garner bipartisan support, USA Freedom is getting pushed as a way to curb government oversteps, with support across the aisle and from big tech companies like Google and Facebook.
Unfortunately, the USA Freedom Act concedes far too much. It doesn’t touch the Drug Enforcement Agency’s surveillance programs. The transparency requirements are lax, so the government won’t have to say how many people it snooped on. It expands surveillance of foreign nationals coming in and out of the country, and increases penalties for people caught providing “material support” to terrorists.
Many civil liberties groups believe that the USA Freedom Act doesn’t go far enough. “This bill would make only incremental improvements, and at least one provision—the material-support provision—would represent a significant step backwards,” ACLU deputy legal director Jameel Jaffer said in a statement. “The disclosures of the last two years make clear that we need wholesale reform.”
Jaffer wants Congress to let Section 215 sunset completely, a common sentiment among privacy activists who are USA Freedom Act skeptics—they’d rather let it expire and wait for a better reform package than endorse something half-baked.
Even supporters admit that the USA Freedom Act has its problems. The Center for Democracy and Technology endorses the bill, but it points out that it doesn’t limit data retention for information collected on people who turn out to have no connection to a suspect or target, and emphasizes that this is not an omnibus solution.
There were two bills competing with the USA Freedom Act before today’s vote, but both are highly unlikely to be passed. The first bill, introduced by Senate Majority Leader Mitch McConnell, would keep everything about government spying just the way it is. It doesn’t have a name yet but it might as well be called the Snowden Nightmare Act.
McConnell’s bill extends the Patriot Act to 2020, including Section 215, which is what the NSA used to justify mass surveillance. His bill disregards any need for intelligence community reform, to the point where it almost seems like he doesn’t care about public opinion (or, obviously, letting people get spied on). It’s an irresponsible piece of legislation that reinforces institutional privacy abuses.
The other bill was the Surveillance State Repeal Act, a sweeping reform advocated by members of the anti-surveillance Civil Liberties Coalition. They are dismissing the USA Freedom Act in support of the Surveillance State Repeal Act, a far more comprehensive piece of legislation in the House that completely repeals the Patriot Act, as well as 2008’s FISA Amendments Act.
It’s clear that the USA Freedom Act is no cure-all for surveillance abuses. It may not even be a cure-some. Yet better alternatives, like the Surveillance State Repeal Act, have no real chance of garnering support in Congress precisely because they are so much more comprehensive that they will invariably alienate the intelligence community.
Incremental reform is usually better than nothing, but the USA Freedom Act presents a conundrum: Is this like accepting a Band-Aid for a gunshot wound? Or is it a realpolitik
baby-step away from surveillance abuses?