NSA

House Approves a Weakened Surveillance Reform Bill After Co-Sponsors Turn Against It

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Office of Justin Amash

Today the House of Representatives approved a watered-down version of the surveillance reform bill known as the USA FREEDOM Act by a vote of 303 to 121. Revisions to the bill demanded by the Obama administration were so troubling that several prominent supporters, including Reps. Justin Amash (R-Mich.) and Zoe Lofgren (D-Calif.), ended up opposing it. Here is how Amash, an original co-sponsor of the bill, explained his vote against it in a message on Facebook:

This morning's bill maintains and codifies a large-scale, unconstitutional domestic spying program. It claims to end "bulk collection" of Americans' data only in a very technical sense: The bill prohibits the government from, for example, ordering a telephone company to turn over all its call records every day.

But the bill was so weakened in behind-the-scenes negotiations over the last week that the government still can order—without probable cause—a telephone company to turn over all call records for "area code 616" or for "phone calls made east of the Mississippi." The bill green-lights the government's massive data collection activities that sweep up Americans' records in violation of the Fourth Amendment.

As I noted yesterday, the current version of the bill redefines the "specific selection term" that is supposed to limit government demands for phone records and other personal data held by third parties. The version unanimously approved by two House committees earlier this month defined "specific selection term" as "a term used to uniquely describe a person, entity or account." The bill passed by the House instead defines "specific selection term" as "a discrete term" that "limit[s] the scope of the information." Critics like Amash plausibly worry that anything short of universal collection might satisfy this requirement, meaning that the records of many innocent people could still be sucked up by the National Security Agency on the slightest pretext. One small consolation is that we may have some indication if that is happening, since the bill requires that decisions by the Foreign Intelligence Surveillance Court construing that crucial phrase be published at least in summary form.

Rep. James Sensenbrenner (R-Wis.), who introduced the USA FREEDOM Act to correct what he believed to be a gross misinterpretation of the government's authority to collect information under Section 215 of the PATRIOT Act (which he also wrote), said the weakened version of his bill was still an improvement. "Let me be clear," he told his fellow legislators. "I wish this bill did more. To my colleagues who lament the changes, I agree with you. The negotiations for this bill were intense, we had to make compromises, but this bill still does deserve support."

The ACLU's Laura Murphy took a similar view. "While far from perfect," she said, "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."

While the bill may be clear statement of congressional intent, the mechanism for implementing that intent is highly ambiguous, which is what the administration wanted. The people who argued that all phone records are "relevant" to a terrorism investigation will have no compunction about arguing that slightly reducing the size of their dragnet makes it comply with the statutory language they wrote.