Weakened surveillance reform bill is 'yesterday's news', civil libertarians say
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Version 0 of 1. When the premiere surveillance reform bill of 2014 is reintroduced in the current Congress, it can count on antipathy and even opposition from many of the civil libertarian activists who pushed it to the brink of passage last year. The USA Freedom Act, a bill that aims to stop the National Security Agency (NSA) from its daily collection of US phone records in bulk, is set for a 2015 revamp after failing in the Senate last November. Supporters pledge to unveil it late this week or early next week. Related: NSA and FBI fight to retain spy powers as surveillance law nears expiration This time, as reported by the Guardian, the bill is shaping up to be the preferred piece of legislation to extend the lifespan of a controversial part of the Patriot Act, known as Section 215. The NSA uses Section 215 to justify its domestic mass surveillance. The FBI considers it critical for terrorism and espionage investigations outside typical warrant or subpoena channels. Section 215 expires on 1 June. The bill’s architects consider the USA Freedom Act the strongest piece of legislation to roll back the domestic reach of US surveillance that Congress will pass. But a new coalition of civil libertarian groups on the left and the right is already looking past the bill, in the hopes of broadening what is possible – something they consider realistic, thanks to the intelligence community’s fervent desire to avoid the expiration of Section 215. “It’s really an opportunity for those who thought the USA Freedom Act wasn’t strong enough to expand the debate,” said Sean Vitka of the Sunlight Foundation, one of the driving forces behind the self-styled Civil Liberties Coalition. Along with Sascha Meinrath of X-Lab, another leading figure in the coalition, Vitka has enlisted 17 prominent privacy and transparency groups, including the left-leaning Bill of Rights Defense Committee and the right-leaning FreedomWorks. A statement of principles on the group’s bare-bones website testifies to their ambitions to widen the aperture of the congressional debate on surveillance. “The civil liberties enshrined in the bill of rights are for all people, by virtue of our common humanity,” reads the first bullet, expressing the sort of universalist point that legislators typically greet with rolled eyes. Some members of the coalition, dissatisfied with the diminished ambitions of the USA Freedom Act – which only addresses one aspect of bulk NSA surveillance, the domestic phone records collection – prefer the long-shot Surveillance State Repeal Act, which would unravel the legal foundations of US mass surveillance. “We think of the USA Freedom Act as yesterday’s news,” said Shahid Buttar of the Bill of Rights Defense Committee, “and we’re interested in forcing the [intelligence] agencies into a future where they comply with constitutional limits.” The coalition does not include major organizations in the privacy debate, including Access, the Electronic Privacy Information Center, the American Civil Liberties Union and the Open Technology Institute that Meinrath founded. Those groups have launched Fight 215 – one that includes many organizations taking part in the Civil Liberties Coalition – that seeks to end the controversial Patriot Act authority. It remains to be seen if the division in focus portends a greater split for privacy advocates in advance of a legislative showdown. Key figures behind the USA Freedom Act, speaking not for quotation or attribution ahead of the bill’s launch, are looking past Vitka’s coalition. Their bill will reauthorize Section 215 at the cost of banning its use for mass US phone records surveillance. Their focus is on a strategy to place the NSA’s congressional allies on the horns of a dilemma: accept the restrictions on bulk collection in their bill, or see all of Section 215 vanish. Freedom Act architects believe the revived bill is better for civil libertarians than the version that passed the House, if still not as robust as last year’s Senate version. Language about what constitutes a “selector” – the controversial definition of the account, device, server, person or installation that can be surveilled – has been reworked, they say, although the Guardian has not seen the final product. But advocates of the bill believe it goes as far as civil libertarians can realistically hope to secure passage. Related: NSA surveillance reform bill passes House by 303 votes to 121 Several regret the path that the USA Freedom Act took to passage in the House. As it became clear throughout 2014 that bulk collection of US phone records faced strong and bipartisan congressional opposition, the White House, NSA and House Republican leadership opted to embrace and then weaken the USA Freedom Act’s reforms. The version that passed the House in May 2014 received as many votes from surveillance hawks as it did doves, a circumstance underscored by an overwhelming subsequent House endorsement for a spy reform stripped from the original bill. This time, the legislative architects of the bill are taking a different approach. They have spent weeks incorporating criticisms and concerns of surveillance hawks, doves, activists and practitioners into the text. The idea is that the bill as unveiled will not come in for dispiriting rounds of changes – and the delay incurred by getting the Freedom Act into shape will create a sense of urgency to pass the bill ahead of the 1 June expiration of Section 215. “Four weeks from now, they face a binary choice: this, or sunset,” explained a congressional aide. But the question for surveillance reform advocates is whether the result of that wrangling is worth supporting. Some, like Robyn Greene of the Open Technology Institute, see the USA Freedom Act as “a first step” on the path of reform. Others consider it a tactical mistake. “If passed, it’ll be the only step,” predicted Patrick Eddington of the Cato Institute, a former House staffer, since the next expiration date for a major piece of surveillance legislation is 31 December 2017. Vitka, leaving the tactical disputes within civil libertarian circles aside, noted that the hardly guaranteed end of Section 215 would still leave the US with a host of far-reaching surveillance authorities, including those of the Drug Enforcement Agency that are aimed at US citizens. “It’s not just 215,” Vitka said. “If 215 goes away, we’ll still have mass surveillance of Americans in this country. That’s just the way it is.” |