Exactly two years after journalists Glenn Greenwald and Laura Poitras traveled to Hong Kong to meet an NSA whistleblower named Edward Snowden, Congress has finally brought itself to reform one surveillance program out of the multitude he revealed — a program so blatantly out of line that its end was a foregone conclusion as soon as it was exposed.
The USA Freedom Act passed the House in an overwhelming, bipartisan vote three weeks ago. After hardliner Republicans lost a prolonged game of legislative chicken, the Senate gave its approval Tuesday afternoon as well, by a 67 to 32 margin. The bill officially ends 14 years of unprecedented bulk collection of domestic phone records by the NSA, replacing it with a program that requires the government to make specific requests to the phone companies.
After Snowden’s leak of NSA documents revealed it, the program was repeatedly found to violate the law, first by legal experts and blue-ribbon panels, and just last month by a federal appellate court. Its rejection by Congress is hardly a radical act — it simply reasserts the meaning of the word “relevant” (the language of the statute) as distinct from “everything” (how the government interpreted it).
At the same time, the Freedom Act explicitly reauthorizes — or, rather, reinstates, since they technically expired at midnight May 31 — other programs involving the collection of business records that the Bush and Obama administrations claimed were authorized by Section 215 of the Patriot Act. In fact, even the bulk collection of phone records, which was abruptly wound down last week in anticipation of a possible expiration, may wind up again, because the Freedom Act allows it to continue for a six-month transition period.
And while the Freedom Act contains a few other modest reform provisions‚ such as more disclosure and a public advocate for the secretive Foreign Intelligence Surveillance Court, it does absolutely nothing to restrain the vast majority of the intrusive surveillance revealed by Snowden.
It leaves untouched formerly secret programs the NSA says are authorized under section 702 of the FISA Amendments Act, and that while ostensibly targeted at foreigners nonetheless collect vast amounts of American communications. It won’t in any way limit the agency’s mass surveillance of non-American communications.
As I wrote after Sunday night’s legislative action, which paved the way for Tuesday’s vote, this marks the end of a vast expansion in surveillance authorities that began almost immediately after the 9/11 terror attacks. Indeed, the Freedom Act represents the single greatest surveillance reform package since the 1970s.
But that’s a low bar.
After 14 years of rubber-stamping executive-branch requests for pretty much anything related to terrorism, Congress had an extraordinary moment of opportunity to pass genuine reform. The Snowden revelations had changed the public’s attitude about government surveillance. And three provisions of the Patriot Act were set to expire.
The provisions did expire after Senate Majority Leader Mitch McConnell repeatedly failed to stampede the Senate into extending them as is. Loath to vindicate Snowden, McConnell and most of the Republican majority took a position even more extreme than that of the White House and the intelligence community, both of which had declared themselves satisfied with the modest changes in the defanged compromise legislation.
McConnell and other fearmongers issued dire warnings until the very end. “The Senate is voting to take away one more tool from those who defend this country every day,” he said Tuesday.
McConnell tried to get support for “some discrete and sensible improvements” to the Freedom Act on Tuesday, but failed. In one last stand before his final defeat, he refused to allow debate on several amendments that would have given the reforms more teeth.
President Obama wasted no time in announcing his plans:
Glad the Senate finally passed the USA Freedom Act. It protects civil liberties and our national security. I'll sign it as soon as I get it.
— President Obama (@POTUS44) June 2, 2015
Spitfire Strategies, a communications and campaign management firm, compiled the following responses to the passage of the bill:
Google: In passing the USA Freedom Act, Congress has made a significant down payment on broader surveillance reform. Today marks the first time since its enactment in 1978 that the Foreign Intelligence Surveillance Act (FISA) has been amended in a way that reflects privacy rights enshrined in our history, tradition, and Constitution … Today’s vote represents a critical first step toward restoring trust in the Internet, but it is only a first step. We look forward to working with Congress on further reforms in the near future.” – Susan Molinari, Vice President, Americas Public Policy and Government Relations
ACLU: “The passage of the USA Freedom Act is a milestone. This is the most important surveillance reform bill since 1978, and its passage is an indication that Americans are no longer willing to give the intelligence agencies a blank check. It’s a testament to the significance of the Snowden disclosures and also to the hard work of many principled legislators on both sides of the aisle. Still, no one should mistake this bill for comprehensive reform. The bill leaves many of the government’s most intrusive and overbroad surveillance powers untouched, and it makes only very modest adjustments to disclosure and transparency requirements.” – Jameel Jaffer, American Civil Liberties Union deputy legal director
Center for Democracy & Technology: “This is a generational win for privacy and transparency,” said CDT President & CEO Nuala O’Connor. “We’ve successfully restricted government surveillance, protecting the privacy of Americans and strengthening transparency, while preserving our national security. The era of casually dismissing mass surveillance as unimportant to liberty is over – even in Congress.”
OTI: “It took two long years of intense debate and negotiation, but Congress has finally put a stake in the heart of the NSA’s program to collect the phone records of millions of innocent Americans. Although USA FREEDOM is a compromise bill that doesn’t include every reform that will ultimately be necessary to rein in mass surveillance, it is a historic victory for privacy rights and the first step on the long road to comprehensive reform. Without a doubt, this is the strongest new regulation of America’s intelligence agencies since the spying scandals of the 70s, and it is the result of a broad bipartisan majority of Congress responding to the average American’s clear demand: do not spy on us,” said Kevin Bankston Policy Director at New America’s Open Technology Institute.
Access: “Congress has responded to public demands to curtail overbroad, unlawful surveillance by passing the USA FREEDOM Act,” said Amie Stepanovich, U.S. Policy Manager at Access. “We celebrate today’s vote as an important first step toward comprehensive surveillance reform. Now that the Congress has passed a prohibition against bulk collection, it should be expanded to other authorities, including Section 702 of the FISA Amendments Act.”
American Library Association: Passage of the USA FREEDOM Act is a milestone for two equally important reasons. It’s the first meaningful reform of our surveillance laws in almost 15 years. . . and it serves notice that libraries, tech companies, civil liberties advocates of every kind and hundreds of millions of ordinary Americans want the rule of law and their privacy restored. Tonight we celebrate. Tomorrow we go back to work to finish what USA FREEDOM started and can’t be stopped.”
Demand Progress: “The Senate just voted to reinstitute certain lapsed surveillance authorities — and that means that USA Freedom actually made Americans less free. Demand Progress opposes the USA Freedom Act, as it does not end mass surveillance and could be interpreted by the Executive branch as authorizing activities the US Court of Appeals for the Second Circuit has found to be unlawful.” – Demand Progress Executive Director, David Segal
(This post is from our blog: Unofficial Sources.)