The USA Freedom Act, which the House overwhelmingly passed yesterday, has been billed as Congress’ best shot at reining in the overreaching government surveillance revealed by National Security Agency whistleblower Edward Snowden. But after a top U.S. court unanimously ruled last week that the NSA’s mass-collection of Americans’ phone records is illegal, it is clear that the bill’s modest reforms are both necessary and painfully inadequate.
The decision (PDF) by the 2nd Circuit Court of Appeals puts the rhetoric of U.S. intelligence agencies and their allies to rest, ruling that the government’s secret reinterpretation of the Patriot Act’s Section 215 to justify collecting all Americans’ phone records was “unprecedented and unwarranted.” The court declared that “Congress cannot reasonably be said to have ratified a program of which many members of Congress — and all members of the public — were not aware.”
The court further agreed with what surveillance reformers have been saying for years: The program’s indiscriminate collection of metadata (which tells the government who you’re communicating with, how frequently, when and for how long) has created “a vast data bank” of Americans’ activities and associations — an archive that, despite the NSA’s initial claims, has not once helped foil a terrorist plot.
The ruling’s significance is hard to overstate. It’s an indictment not only of the NSA’s phone records program and its faux oversight regime, but also of various other government surveillance programs that have secretly ensnared millions of Americans for years. In that sense, it’s hard not to feel suddenly like the Freedom Act’s modest reforms are a bum deal. With several surveillance provisions, including Section 215, set to expire on June 1, Congress must seize this opportunity to strengthen the bill and end all of the NSA’s warrantless mass surveillance programs — not just the phone records dragnet.
Surveillance reformers are in a much better position now than they were a year ago. Last year’s version of the Freedom Act was gutted behind closed doors at the intelligence community’s behest, then abandoned during a procedural vote in the Senate. The new version passed by the House would end the bulk phone records program and slightly improve oversight and transparency, while still allowing the NSA to get records from phone companies through targeted court orders.
The bill’s passage has riled Senate Majority Leader Mitch McConnell and other Senate surveillance hawks who are trying to pass either a temporary extension or a clean reauthorization of the Patriot Act. But after the recent court ruling, a reauthorization defies all logical sense: You can’t reauthorize a program that Congress never authorized in the first place.
Even without the 2nd Circuit’s ruling, the NSA defenders’ talking points for keeping the status quo have been thoroughly debunked. Multiple courts and two independent White House panels have concluded the 215 program has never prevented terrorism, violates innocent Americans’ privacy and should end. Even the U.S. intelligence community supports the most recent version of the Freedom Act.
Senators Ron Wyden and Rand Paul have promised to filibuster reauthorization if it makes it to the floor. But even if McConnell and his crew manage such a feat, the recent ruling would still end the NSA’s bulk collection of phone records unless the Supreme Court steps in and vacates the lower court’s decision.
In other words, the NSA will have to stop collecting Americans’ phone records in bulk pretty much no matter what. But the other mass surveillance programs Snowden exposed will remain untouched — unless the Senate steps up and strengthens the Freedom Act to better reflect the 2nd Circuit’s decision.
Unlike the original draft, the USA Freedom Act that’s now headed to the Senate does almost nothing to address mass surveillance under two other broad authorities: Section 702 of the FISA Amendments Act and Executive Order 12333.
Both authorities allow bulk collection of not only metadata, but also communications content. They also both authorize the NSA’s upstream collection, which ingests trillions of phone and Internet communications as they enter and exit the United States. That includes the communications of U.S. citizens, which the NSA says it collects incidentally but can be retained and used under a wide variety of circumstances. For example, law enforcement agencies such as the Drug Enforcement Administration are known to use data obtained in this way in criminal investigations, obscuring its true source through an evidence-laundering process known as parallel construction.
Even less oversight exists for Executive Order 12333, a Ronald Reagan–era mass surveillance authority that allows collection on U.S. citizens, even those not suspected of wrongdoing. It’s also what permits the NSA to do previously unimaginable things, such as wiretap every single phone call in the Bahamas. As former State Department section chief John Napier Tye wrote last year in The Washington Post, “Section 215 is a small part of the picture and does not include the universe of collection and storage of communications by U.S. persons authorized under Executive Order 12333.”
The House had a chance to put better limits on these authorities when several bipartisan amendments to the Freedom Act were introduced on Tuesday. One amendment put forth by Rep. Mark Pocan, D-Wis., would have blocked bulk surveillance of American citizens under Executive Order 12333. Another introduced by Rep. Jared Polis, D-Colo., aimed to restore the original Freedom Act's enhanced minimization process, forcing the government to limit its retention of data under 702 to specified surveillance targets, agents of foreign powers and their associates. An additional amendment from Polis would have also ensured that the Freedom Act’s ban on bulk collection also applied to law enforcement agencies such as the DEA, which according to a recent report in USA Today has had a phone records database of its own for decades. But the House Rules Committee voted to send the bill to the floor without any amendments, leaving the power to improve the Freedom Act firmly in the Senate’s hands.
Simply put, the Senate must amend the USA Freedom Act to restore the strong privacy and oversight provisions included in the original bill. If it settles for less, these mass surveillance programs will remain and Congress will only be scraping the tip of the NSA iceberg.
Either way, the Freedom Act must be the beginning — not the end — of surveillance reform.