The House of Representatives voted Thursday morning to approve what is being called (in the thoroughly unironic way that it has) the USA Freedom Act. The bill as first crafted and still sold, was an attempt to rein in the National Security Agency’s bulk data collection programs — behavior exposed and confirmed by former NSA contractor Edward Snowden last year. The final vote was 303 to 121.
The legislation, sponsored by one of the original authors of the USA Patriot Act, Jim Sensenbrenner, R-Wisc., was originally supported by privacy and civil liberties advocates, as well as coalition of Democrats and libertarian-minded conservative Republicans as it moved through the House Judiciary and Intelligence committees. But when the bill hit the Rules Committee, much had changed, reportedly at the request of the White House.
Though never as ironclad a set of protections as House sponsors claimed, previous versions of the USA Freedom Act included some restrictions on bulk data collection and reporting requirements designed to increase transparency and foster oversight.
But the bill as passed defines “bulk” as “nationwide collection,” pointedly leaving open the possibility that intelligence agencies could still indiscriminately suck up all the metadata in a region, a city, a state or several states under a single court order.
Privacy watchdogs abandoned the bill. “We cannot support a bill that continues to authorize untargeted surveillance at such a massive scale,” said Harry Geiger, senior counsel at the Center for Democracy and Technology.
The Electronic Frontier Foundation, long an advocate for better intelligence safeguards, agreed, saying it wouldn't “support a bill that doesn't achieve the goal of ending mass spying.”
Concerned representatives also backed away from the bill before the floor vote. Justin Amash, R-Mich., a conservative considered allied with tea party Republicans, was an original supporter, but announced via twitter he could no longer back the bill. “This morning’s bill maintains and codifies a large-scale, unconstitutional domestic spying program,” Amash wrote in a series of tweets. “New #USAFREEDOMAct green-lights govt's massive data collection activities on Americans in violation of 4th Amendment.”
Amash also noted that the new law would actually extend some of the most questionable parts of the original Patriot Act — those referred to as Sec. 215 provisions — two additional years, through 2017.
From the left side of the aisle, New Jersey Democrat Rush Holt tweeted his rejection of the new version this way, “How could anyone support a bill that doesn’t require probable cause to spy on Americans?”
But other members, such as Sensenbrenner and veteran Democrat John Conyers of Michigan, ranking member on the Judiciary Committee, made the half-a-loaf argument in advocating for passage.
“While not a perfect bill, with the #USAFreedomAct we stand poised to #EndBulkCollection across the board,” wrote Conyers. “I urge my colleagues to support the #USAFreedomAct, the first significant rollback of any part of government surveillance since FISA in 1978.”
On the floor, Sensenbrenner pushed for passage [PDF]:
Let me be clear, I wish this bill did more. To my colleagues who lament changes, I agree with you. To privacy groups who are upset about lost provisions, I share your disappointment. The negotiations for this bill were intense, and we had to make compromises, but this bill still deserves support.
Don’t let the perfect be the enemy of the good. Today, we have the opportunity to make a powerful statement: Congress does not support bulk collection.
Laura Murphy, director of the Washington legislative office of the American Civil Liberties Union, echoed that sentiment:
While far from perfect, this bill is an unambiguous statement of congressional intent to rein in the out-of-control NSA. While we share the concerns of many – including members of both parties who rightly believe the bill does not go far enough – without it we would be left with no reform at all, or worse, a House Intelligence Committee bill that would have cemented bulk collection of Americans’ communications into law. We will fight to secure additional improvements in the Senate.
But intelligence community skeptics, like Marcy Wheeler, who has been chronicling the debate over government surveillance for most of this century, see more harm than good, noting that the new bill gives the NSA license to look at the content of conversations swept up in a dragnet under the guise of how the agency might decide to store or destroy collected data.
Wheeler has also pointed out that the Freedom Act permits drawing connections between the highest level of data points, giving the NSA permission to pry into communications of an individual just because that person and a suspected terrorist both used FedEx or ordered from the same pizza delivery joint.
The legislation now goes to the Senate, where Judiciary head Patrick Leahy, D-Vt., has offered companion legislation designed to beef up restrictions on the NSA. Leahy applauded today’s House passage, but said he was disappointed that the legislation “does not include some of the meaningful reforms contained in the original USA Freedom Act.” Leahy said he would “continue to push for these important reforms when the Senate Judiciary Committee considers the USA Freedom Act next month.”