The Conversation

The USA Freedom Act: effective reform of the Surveillance State, or empty gesture?

You'll find no shortage of both boosters and critics for the USA Freedom Act, an effort at reforming the government's bulk collection of data (i.e. spying on everybody) which passed the House with a bipartisan 303-121 majority on Thursday.  The Miami Herald lined up support and criticism from both House and Senate, where the bill is now headed:

Committee Chairman Mike Rogers, R-Mich., talked of a “sweet spot” between maintaining national security and protecting Americans’ privacy, and a parade of politicians about to head home for a long Memorial Day recess agreed.

But just beneath the surface were serious concerns. The bill now goes to the Senate, where Judiciary Committee Chairman Patrick Leahy, D-Vt., said he was disappointed the changes didn’t go far enough.

Sen. Ron Wyden, D-Ore., who has been active on surveillance issues, had stronger feelings. “I am gravely concerned that the changes that have been made to the House version of this bill have watered it down so far that it fails to protect Americans from suspicion-less mass surveillance,” he said.

Many legal watchdog groups agreed. “To call this a disappointment is an understatement.” said Elizabeth Goitein, co-director of the Brennan Center’s Liberty and National Security program.

Nuala O’Connor, president and CEO of the Center for Democracy and Technology, found the bill “now offers only mild reform and goes against the overwhelming support for definitively ending bulk collection.”

Lawmakers opposing the bill were largely a collection of libertarian Republicans and liberal Democrats.

“This legislation still allows the government to collect everything they want against Americans _ to treat Americans as suspects first and citizens second,” said Rep. Rush Holt, D-N.J.

Basically, the USA Freedom Act (allow me to pause and express my distaste for the transparently manipulative names chosen for legislation, both good and bad) is supposed to shut down a big part of the Digital Panopticon by requiring intelligence agencies to specify targets for metadata harvesting, instead of just hoovering up the data for everyone and storing it for later reference, as permitted under the USA Patriot Act of 2001.  (What was I just saying about manipulative names for legislation...?)  Now the infamous NSA and other agencies would have to more narrowly define who they're investigating, and harvest only data pertinent to that investigation.

The complaint from critics of the new bill is that it got watered down at the last minute, broadening the definition of investigative targets enough to make the new protections amount to placing sunglasses over the All-Seeing Eye.  Now the NSA can collect almost everything, instead of everything.

Supporters of the bill counter that other protections contained within its pages will prevent the broad targeting definitions from unleashing the full power of the Panopticon again, which would be comforting in a Republican with a proper separation of powers, and a restrained executive branch that places a high value upon transparency.  Alas, we do not currently live in such a country:

Many who backed the bill echoed the thoughts of Rep. Jerrold Nadler, D-N.Y., who acknowledged concerns that the current definition of specific selection term “may still allow overbroad collection.”

But, he said, there is protection against abuse. The bill has provisions that would bar the government from using an entire telephone area code or Internet router to collect and warehouse records “just because a terror suspect might be using a phone in that area code or sending communications that might traverse that router,” Nadler said.

Even if a FISA court defines a “specific selection term” too broadly, “other reforms in the bill ensure that Congress and the American people would know about it immediately.” Nadler said.

Wyden was unconvinced. “While this bill’s authors may not intend for it to be interpreted so broadly, the executive branch’s long track record of secretly interpreting surveillance laws in incredibly broad ways makes it clear that vague language is ineffective in restraining the executive branch,” he said.

Given the intelligence community’s “record of consistently making inaccurate public statements about these laws in order to conceal ongoing dragnet surveillance of Americans, it would be naive to trust the executive branch to apply new surveillance laws with restraint,” Wyden warned.

Sen. Wyden was a somewhat grudging supporter of the USA Freedom Act in its earlier form, before the last-minute revisions.  He sponsored a tougher bill in the Senate last fall, known as the Intelligence Oversight and Surveillance Reform Act.  (See, you can give bills reasonably descriptive names that don't make opponents feel like they're voting against "freedom" if they don't get on board!)

I know what you're probably thinking, if the Surveillance State is a big issue for you: what does Rand Paul think of the USA Freedom Act?  Well, he was a co-sponsor of Sen. Wyden's alternative bill.  He sounded a bit... meh after the Freedom Act passed the House, saying "We need to have some reforms, but I'm not sure they've gone far enough."  

Another of Wyden's partners on the Intelligence Oversight and Surveillance Reform Act, Sen. Mark Udall (D-CO), was even more dismissive of the revised bill that just passed the House, saying it "bears little resemblance to the bicameral and bipartisan legislation that I supported months ago, and that I still support."  Udall called on the Senate to take up the original, not-watered-down incarnation of the Freedom Act, "which clearly ends bulk collection and which includes more aggressive steps to protect Americans' privacy, such as important provisions to safeguard Americans from warrantless, backdoor searches of their private communications."

In essence, supporters of the Freedom Act portray it as a first step toward reform, noting that more legislation on the matter will soon emanate from the House.  Opponents say it doesn't go nearly far enough, and are greatly displeased by the last-minute revisions made before the vote.  It's hard to find much enthusiasm for what the House passed among privacy activists groups, such as FreedomWorks, which supported the earliest incarnation of the bill:

Other privacy groups share our concern about the new version of the bill. We are dissatisfied that previous strong definitions in the bill have been replaced with broad definitions. The original bill was pretty clear about who the NSA was allowed to surveil. The new language is more open ended and cannot be trusted to protect us from unjust government surveillance.

FreedomWorks cannot support a bill that will do virtually nothing to curb unconstitutional spying. This is unfortunate because we believed that the original bill was the best introduced bill to reform the NSA. Unfortunately, despite their promises to respect civil liberties, the White House put pressure on House members to change the bill. We are disappointed that the House leadership has succumbed to pressure by the White House to weaken the USA Freedom Act.

Since even outside groups supporting the Freedom Act portray it as, at best, a flawed first step forward - basically damning it with faint praise by calling it better than nothing - it's probably going to have a lively journey through the Senate.



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