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| The NSA bill got to the House at warp speed. Senators are our only hope | The NSA bill got to the House at warp speed. Senators are our only hope |
| (3 months later) | |
| In just over two weeks, the bill known as the USA Freedom Act – formerly the best chance to pass meaningful NSA reform in Congress – has gone from strong, to weak, to horrible. So naturally, after months of stalling the once-promising bill, the House of Representatives rushed to pass a gutted version on Thursday. | In just over two weeks, the bill known as the USA Freedom Act – formerly the best chance to pass meaningful NSA reform in Congress – has gone from strong, to weak, to horrible. So naturally, after months of stalling the once-promising bill, the House of Representatives rushed to pass a gutted version on Thursday. |
| Now that the bill has passed, the NSA's biggest supporters will surely line up to call this legislation "reform" so they can go back to their angry constituents and pretend they did something about mass surveillance, while really just leaving the door open for it to continue. But the bill is still a long way from the president's desk. If the Senate refuses to pass a strengthened version of the USA Freedom Act this summer, reformers should consider what 24 hours ago was unthinkable: abandon the bill and force Section 215 of the Patriot Act to expire once and for all in 2015. Because it's one thing to pass a weak bill, but it's entirely another to pass off smoke and mirrors as progress. | Now that the bill has passed, the NSA's biggest supporters will surely line up to call this legislation "reform" so they can go back to their angry constituents and pretend they did something about mass surveillance, while really just leaving the door open for it to continue. But the bill is still a long way from the president's desk. If the Senate refuses to pass a strengthened version of the USA Freedom Act this summer, reformers should consider what 24 hours ago was unthinkable: abandon the bill and force Section 215 of the Patriot Act to expire once and for all in 2015. Because it's one thing to pass a weak bill, but it's entirely another to pass off smoke and mirrors as progress. |
| It really is astonishing to look at how abruptly this legislation has been warped. All the major civil liberties organizations dropped their support for the USA Freedom Act as soon as the new version – re-written in secret at the last minute, with help from the NSA's lawyers and the Obama administration – was made public on Tuesday. The privacy groups' withdrawal was followed quickly by the major tech companies like Google, Facebook and Twitter. But that apparently doesn't matter to the White House or Congressional leadership, who barred amendments that could have potentially strengthened the bill from being offered on the floor ahead of Thursday's vote. | It really is astonishing to look at how abruptly this legislation has been warped. All the major civil liberties organizations dropped their support for the USA Freedom Act as soon as the new version – re-written in secret at the last minute, with help from the NSA's lawyers and the Obama administration – was made public on Tuesday. The privacy groups' withdrawal was followed quickly by the major tech companies like Google, Facebook and Twitter. But that apparently doesn't matter to the White House or Congressional leadership, who barred amendments that could have potentially strengthened the bill from being offered on the floor ahead of Thursday's vote. |
| Just 17 days ago, in a compromise that moved the formerly strong legislation out of committee and into action, the bill was weakened significantly: in came more immunity for telecoms, and out went tough transparency and provisions for the Fisa court, along with protections against warrantless "backdoor" searches of your communications. But at least that deal was out in the open, and at least it didn't make things worse. Indeed, to many close watchers of national security, that version of the USA Freedom Act still looked marginally better than the status quo. | Just 17 days ago, in a compromise that moved the formerly strong legislation out of committee and into action, the bill was weakened significantly: in came more immunity for telecoms, and out went tough transparency and provisions for the Fisa court, along with protections against warrantless "backdoor" searches of your communications. But at least that deal was out in the open, and at least it didn't make things worse. Indeed, to many close watchers of national security, that version of the USA Freedom Act still looked marginally better than the status quo. |
| But with the most recent closed-door re-write of the bill, any chance for even traces of mediocre change have vanished. The New York Times' Charlie Savage highlighted the alterations between the already-weak USA Freedom Act and the obliterated new version, showing how critical definitions of what the NSA can search have been widened, and how all potential transparency now rests in the hands of the very person who Snowden's leaks caught lying, Director of National Intelligence James Clapper. Marcy Wheeler, who's been warning about what she calls "Freedumb" for two weeks, breaks down even more stealth provisions in what she now calls "Freedumber" that may open up new ways for the NSA to search even more our data. | |
| "I can't imagine what scenario they're thinking about," one anonymous US official told the Washington Post about those of us worried about loopholes. "There's definitely no desire anywhere in any part of the government to keep some door open to large scale collection." No desire at all, you say? Gee, I can't imagine why people might be worried that anonymous government officials might take a public law and secretly re-interpret it to enable mass anonymous surveillance on millions of Americans. Nope, can't imagine that at all. | "I can't imagine what scenario they're thinking about," one anonymous US official told the Washington Post about those of us worried about loopholes. "There's definitely no desire anywhere in any part of the government to keep some door open to large scale collection." No desire at all, you say? Gee, I can't imagine why people might be worried that anonymous government officials might take a public law and secretly re-interpret it to enable mass anonymous surveillance on millions of Americans. Nope, can't imagine that at all. |
| We still a chance that the Senate could hold strong and pass the original USA Freedom Act – the one with real transparency and Fisa court reform – then pass it back to the House with an ultimatum. But it will take a massive effort by ordinary citizens to call their Senators with a litany of demands: a prohibition on all forms of bulks surveillance, no more secret law and a privacy advocate in the secret Fisa court. Tech companies should be focusing all their lobbying power on adding back in the provision allowing them to spell out to their customers exactly how many people are affected by all types of surveillance and a bar on breaking common forms of encryption used by all internet users. | We still a chance that the Senate could hold strong and pass the original USA Freedom Act – the one with real transparency and Fisa court reform – then pass it back to the House with an ultimatum. But it will take a massive effort by ordinary citizens to call their Senators with a litany of demands: a prohibition on all forms of bulks surveillance, no more secret law and a privacy advocate in the secret Fisa court. Tech companies should be focusing all their lobbying power on adding back in the provision allowing them to spell out to their customers exactly how many people are affected by all types of surveillance and a bar on breaking common forms of encryption used by all internet users. |
| But if that doesn't happen, Senators like Mark Udall, Ron Wyden and Rand Paul could always hold the entire legislative push hostage – and use the one piece of leverage that may be left to protect what levels of privacy we had before we knew of Edward Snowden: the scheduled expiration of the Patriot Act. | But if that doesn't happen, Senators like Mark Udall, Ron Wyden and Rand Paul could always hold the entire legislative push hostage – and use the one piece of leverage that may be left to protect what levels of privacy we had before we knew of Edward Snowden: the scheduled expiration of the Patriot Act. |
| Remember, Section 215 of the Patriot Act - the law that was secretly reinterpreted during the Bush era and embraced by Obama to collect the phone records of every American - has to be re-authorized by Congress next year. If we take all the representatives willing to vote for the stronger USA Freedom Act, we know the votes are there to bury Section 215 of the Patriot Act completely. And with this kind of threat on the table, reformers have enough leverage that the White House might just be forced into accepting more substantive changes than they have this year. | Remember, Section 215 of the Patriot Act - the law that was secretly reinterpreted during the Bush era and embraced by Obama to collect the phone records of every American - has to be re-authorized by Congress next year. If we take all the representatives willing to vote for the stronger USA Freedom Act, we know the votes are there to bury Section 215 of the Patriot Act completely. And with this kind of threat on the table, reformers have enough leverage that the White House might just be forced into accepting more substantive changes than they have this year. |
| But putting our faith in Congress, whether it's now or in a year, is a risky proposition either way. As Stanford law professor Jennifer Granick wrote on Wednesday: | But putting our faith in Congress, whether it's now or in a year, is a risky proposition either way. As Stanford law professor Jennifer Granick wrote on Wednesday: |
| [I]t's worth asking why legislative surveillance reform has so far failed, despite huge support in Congress and in the public for ending bulk collection. What does this say about our political system, and about the influence of intelligence agency lobbying despite public sentiment in favor of more restraint? | [I]t's worth asking why legislative surveillance reform has so far failed, despite huge support in Congress and in the public for ending bulk collection. What does this say about our political system, and about the influence of intelligence agency lobbying despite public sentiment in favor of more restraint? |
| One thing's important to remember: both the White House and members of Congress want desperately to avoid mass surveillance becoming a major campaign issue in the midterms. If they don't change course, let's hope their constituents remember come November. | One thing's important to remember: both the White House and members of Congress want desperately to avoid mass surveillance becoming a major campaign issue in the midterms. If they don't change course, let's hope their constituents remember come November. |