NSA reform is unavoidable. But it can be undermined if we aren't careful
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Version 0 of 1. Congress now has to reform NSA mass surveillance in the next two weeks – whether they like it or not. Bolstered by a historic court of appeals opinion from last week that ruled much of NSA’s mass surveillance on Americans illegal, Congress is scrambling to pass a reform bill for the NSA before 1 June, when a key section of the Patriot Act, known as Section 215, will expire unless both houses vote to extend it. Now the only question is how far they’ll go. Section 215 of the Patriot Act is the same law that a three judge panel on the 2nd Circuit Court of Appeals just ruled cannot be used by the NSA to collect every American’s phone records, which is exactly what they had been doing in secret for years before Edward Snowden revealed the program in his very first leak to the Guardian in June 2013. The court ruling has left Congress reeling, where many thought they might be able to escape without doing much at all; now most members in both parties admit the question is not if the NSA will be constrained but by how much. It’s hard to understate the 2nd Circuit ruling’s sweeping nature: not only did the three judge panel declare the notorious phone metadata program unlawful, but all other still secret mass surveillance programs are now illegal as well. (For example, Senator Richard Burr curiously claimed last week on the Senate floor that the NSA is mining American IP addresses in bulk using the Patriot Act. When he was called out for seemingly making classified information public, his statements quickly disappeared from the official congressional record.) It’s now virtually a foregone conclusion that a version of the USA Freedom Act – an NSA reform bill that has been re-written countless times over the past two years – will pass the House of Representatives by a large margin as early as Wednesday. While the bill is a milquetoast attempt to reform that’s been watered down since it was first introduced shortly after the Snowden leaks began in June 2013, most civil liberties experts agreed - at least before the 2nd Circuit ruling - the bill makes things better on the margins. It adds a little transparency and taking away the NSA’s vast phone database, but leaving it in the hands of the phone companies for the agency to continue to mine in secret. The problem is that the USA Freedom Act is also a confusing conglomeration of vague clauses and definitions that some lawyers think could allow the NSA to twist and warp in secret to allow them to continue to abuse the privacy of the American people. Given the courts have already gutted the NSA’s convoluted legal arguments, Congress now needs to go much further and remove any doubt from USA Freedom’s language. (The Electronic Frontier Foundation and the American Civil Liberties Union have both withdrawn support from the House’s version of USA Freedom for this very reason.) The real battle over how this will all shape up will be in the Senate. Senate Majority Leader Mitch McConnell is bizarrely still pushing to re-authorize the Patriot Act despite the court’s crystal clear ruling that the program is illegal in its current form. Senate Majority leader McConnell took to the Senate floor just after the 2nd Circuit ruling and insisted the Senate must go ahead and reauthorize the Patriot Act regardless. As minority leader in the Senate Harry Reid flatly told McConnell in response: “How can you reauthorize something that’s illegal? You can’t. You shouldn’t.” Republican presidential hopeful Rand Paul – McConnell’s fellow Kentucky senator and perennial mass surveillance critic – and Democrat Ron Wyden have already vowed to filibuster any extension of the Patriot Act, even a temporary one. (It is a tried and true technique of the intelligence community to wait until the last minute to reauthorize a controversial bill they knew was coming years in advance, ask for a temporary extension and wait for the media to lose interest.) It will likely be up to the Senate bill’s main author Senator Patrick Leahy, the ranking Democratic member on the judiciary committee and the one with possibly the most sway over its language that determines whether the NSA will be permanently curtailed in its quest to conduct mass surveillance or not. Leahy will have a unique opportunity to put teeth back in this bill: to clearly and unequivocally prohibit mass surveillance of any kind, to make sure the NSA can never again hide illegal programs behind official secrecy and to prevent the agency from continually and flagrantly circumventing the Fourth Amendment. A stronger USA Freedom Act would also act as an historic bookend on Leahy’s decades long career. As EFF points out, his very first act in Congress back in the 1970s was to vote for the formation of the Church Committee, the landmark investigative body that put the first real constraints on the NSA after the Nixon administration scandals (many of which were removed after 9/11). Will the reform be a meaningful check that forces the NSA to become accountable to the public, or just a veneer of change that continues to let the NSA continue most of its activities in secret? We will know one way or another in less than two weeks. |