USA FREEDOM and Rand Paul

Civil libertarians are disappointed by the Kentucky senator's vote against debate on NSA reform legislation.


Rand Paul

In June 2013, Sen. Rand Paul (R-Ky.) introduced the Fourth Amendment Restoration Act, a bill declaring that "the Fourth Amendment to the Constitution shall not be construed to allow any U.S. government agency to search the phone records of Americans without a warrant based on probable cause." The legislation was aimed specifically at stopping the National Security Agency (NSA) and other federal agencies from interpreting the Foreign Intelligence Surveillance Act and the USA PATRIOT Act in ways that allows them to clandestinely collect and winnow through Americans' telephone and other electronic records. I entirely support the bill, but the sad truth is that it has garnered not a single cosponsor and it has gone nowhere.

What has gone somewhere, though this week it was stopped in its tracks, is the USA FREEDOM Act. This bill aims to limit the NSA's bulk collection of Americans' phone data under Section 215 of the PATRIOT Act. Specifically, it restricts the FBI to seeking the records related to specific individuals, phone numbers, and email accounts based on a "reasonable, articulable suspicion" that they are associated with a foreign power or its agent engaged in international terrorism or activities in preparation for such terrorism. The FBI would also no longer be able to engage in electronic dragnets by demanding to see the records of every customer of a telecommunications service provider or everyone who lives in a particular zip code or city.

Other provisions dealt with National Security Letters which are administrative subpoenas that the FBI uses without judicial oversight to directly order companies to turn over the banking, telephone, and Internet usage records of their customers and then gag the companies from telling anyone that they did so. In order to forestall agencies from reinterpreting NSLs to permit dragnet surveillance, the bill set the same standard on NSLs as it did on searches under Section 215, that is, limiting them to specific individuals, accounts, phone numbers, and so forth.

The USA FREEDOM Act would also increase the transparency of the Foreign Intelligence Surveillance Court by allowing it to appoint a privacy advocate in certain cases, seek technical information about the operation of surveillance programs, and require the disclosure of significant decisions relating to Americans' privacy rights.

Earlier this week, the bill needed the votes of 60 senators in order for debate on the bill to proceed. It garnered only 58, and so it did not make it to the floor. One of the 42 voting against was Sen. Paul.

"I think NSA reforms are necessary and I will continue to fight against bulk data collection," Paul explained in an emailed statement. "Last night, I stood on principle by opposing a bill that included a provision reauthorizing elements of the Patriot Act that violate the Bill of Rights. I have always been steadfast against the Patriot Act and I will continue to do all I can to prevent its extension."

Paul specifically objected that the act would extend three provisions of the PATRIOT Act beyond their June 1, 2015, sunset dates to 2017. These include bulk collection of records under Section 215, secret "lone wolf" surveillance of non-U.S. persons not affiliated with any terrorist organization, and roving wiretaps that allow one authorization to cover multiple devices—say, an unnamed suspect's cell phone, computer, and tablet.

Cato Institute policy analyst Julian Sanchez tells me that while the lone wolf surveillance provision is "somewhat concerning," it has never been used. With regard to roving wiretaps, the idea that law enforcement should be able to legally track the communications of an identified terrorism suspect across multiple devices is reasonable. The Patriot Act, however, permits the government to apply for a warrant where they don't know who the target is AND they also don't have the full list in advance of the accounts they want to tap. So far such open ended warrants are not common since the government has generally identified a specific target.* Sanchez makes the further point that the USA FREEDOM Act would actually amend Section 215 to limit bulk collection, so extending it to 2017 would be much less problematic.

Most civil libertarians agree with Sen. Paul that the bill is far from perfect. Nevertheless, they wanted the debate to proceed. "I respect that Sen. Paul has been trying to reform the NSA for a long time, but it is disappointing that he voted against moving forward on the bill," says ACLU legislative counsel Neema Singh Guliani. "It is a huge step back, a huge lost opportunity."

Similarly, Electronic Frontier Foundation legislative analyst Mark Jaycox praises Paul as "a very good advocate on privacy" but adds that "it was disappointing that he voted against debating the bill." Jaycox argues that if Paul thought the bill was too weak and needed strengthening, he could have offered amendments during the debate. If those amendments had failed, the senator could have voted against it at that time. Both Guliani and Jaycox believe the USA FREEDOM Act is a good first step in a long process of ending domestic surveillance abuses.

NSA Spying

"I have not heard a single person plausibly argue that we will get more robust and more far-reaching reform now that this bill has failed," says Sanchez. "I am with him [Paul] in spirit, but I don't see how this works strategically."

On the other hand, Sanchez' Cato colleague Patrick Eddington suggests that the June 1, 2015, sunset date on the three PATRIOT Act provisions will make congressional debate on NSA surveillance reform an urgent matter this coming spring. As that date approaches, NSA enablers such as future Senate majority leader Mitch McConnell may be frantic to save some Section 215 surveillance capabilities.

Eddington believes that there is a strong enough bipartisan libertarian/progressive coalition in the House of Representatives to allow the sunsetting provisions of the Patriot Act die in June, if no agreement on substantial surveillance reforms is reached. Since the USA FREEDOM Act failed, Eddington thinks that pressure for surveillance reforms will build as more and more information comes to light about just how egregiously the NSA and other agencies are violating Americans' Fourth Amendment rights.

Maybe so. But The New York Times is reporting that an artful interpretation of Section 215 could well make it essentially permanent without further congressional authorization. If so, Paul's stand will have accomplished nothing.

Eddington suggests that another avenue for surveillance reform may open up later this year. Back in June, the House of Representatives passed an amendment to the Department of Defense appropriation bill that would prohibit the NSA from spending any money on warrantless FISA Section 702 searches and on efforts to install backdoors in encryption standards. the NSA has interpreted FISA Section 702 to allow a backdoor search loophole that sweeps up Americans' emails, instant messages, Facebook messages, and Web browsing history.

On December 11, the continuing budget resolution that funds federal operations for fiscal 2015 will run out. As Congress hastily tries to get home for Christmas, there is a chance that it will pass a giant omnibus appropriations bill that must be approved all at once. If so, the June DOD amendment would make it through and thus stop NSA Section 702 searches and agency efforts to undermine encryption standards.

Both Jaycox and Guliani also have some hope that the federal courts will come to the rescue. A number of lawsuits are challenging the constitutionality of various surveillance programs. All too often courts give deference to the decisions made by the political branches, especially when it comes to alleged matters of national security. Nevertheless, there is some possibility that litigation might overturn some aspects of the national security surveillance state.

"Paul made a call that he clearly thought was in the best interests of the country," concludes Eddington. "I think it is more than likely that time will prove him right." I hope so. But there may come a time when Paul rues the day he allowed the perfect to get in the way of the merely better.

*Correction: I misunderstood Sanchez' explanation of Section 206 roving wiretap authority. It does require a warrant, but the government "may obtain an order to conduct surveillance that specifies neither a named target nor a specific device to tap, although the order must provide a description of the target if a name is not known." I apologize the confusion.

NEXT: Immigration and the Constitution: Does Obama Have the Law of the Land on His Side?

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  1. I don't think he is a genius but I am positive he took that calculation into account. I think he may believe he will be successful passing a stronger bill.

  2. C'mon, Rand, compromise your principles already...join usssssss!

    1. ^^THIS

      Esp. cause it was a suck bill that would have been destructive, not merely "less good".

  3. I remember when Welch and Sudermen went Full Retard over the shutdown and were completely wrong about its impact on the midterms. Now I guess it's Bailey's turn to put his head all the way up his ass for the noble, all-important goal of scolding Republicans that actually do the things libertarians say they want them to do, whether that is making a stand over Ocare or not voting for pathetic awful legislation. What part of 'extends the PATRIOT act to 2017' does Bailey want us to get excited for? No, Bailey, it just sucks. It's best to just let it expire, especially if Paul has wrangled a deal with McConnel to also let the other PATRIOT act provisions and the NDAA expire.

    1. Not to mention that all of the "reforms" in this bill were either watered down to the point of uselessness, or they actually would have strengthened the NSA.

    2. +1 - you beat me to the punch on this. So, Reason says vote for a known evil for an "extend debate" trade-off??

    3. Exactly so.

    4. C & all: First, it's not "when they expire" it's "if they expire." We'll talk in June.

      Check out the New York Times story to which I linked that suggests just how NSA enablers might be able to get around the alleged expiration date for Section 215.

      Second, it's only three of the provisions of the damned PATRIOT Act that would have been extended to 2017 - most of the provisions in that hideous legislation were made permanent back in 2011.

      The main provision to which Paul objects is the Section 215 bulk collection of meta-data stuff which was what was being reformed.

      As I say, let's talk in June.

      In the meantime, enjoy your weekend folks!

      1. Like... is there an expiration date, or not!?!?

        I mean... FUCK!

    5. McConnel is not letting anything expire. He will renew it as is or strengthen it.

      I like Paul but he blew it.

  4. Not jumping on the Paul bandwagon but ...

    We are upset a politician didn't compromise on things he truly believes in? A little less of choosing the worse of two evils and a bit more principles aren't a horrible idea.

    At least this way some provisions of the Patriot Act will expire. With a little luck they will keep expiring.

    1. Exactly. Bailey isn't proposing taking half a loaf-he's proposing NOT taking most of a loaf (expiry) in exchange for a few slices of that shitty WonderBread.

  5. There is a certain sort of irony to libertarians bemoaning that others won't compromise their principles to achieve incremental progress.

    1. Is it irony that libertarians enable unlibertarian policies by insisting on making the perfect the enemy of the good?

      1. I'm only going to shoot 10 innocent people and not the 20 I had planned on...

        1. More like you're going to sit back and watch 20 people get shot instead of saving 10 when you could have because of your strong anti-death principle.

          1. No, you're condoning the death of the 10. And that's not a victory. The Utilitarian math you want is precisely why there is no good person to vote for in Washington.

          2. Oh, and the Utilitarian math you use is still wrong, because you're only thinking in the short-term!

            1. Exactly this. It would just be enabling the shooter in that scenario to take everyone out - just in groups of ten out of 20

      2. Fundamentalism of ANY stripe is idiotic.

  6. I guess the question I have is, does it extend the entire Patriot Act for 3 years or just section 215? If it's the entire bill I kind of agree with Paul. Besides the opportunity to get rid of the entire abomination next year. Extending it for 3 years now will conveniently allow politicians to avoid having an on the record vote for re-authorization before the 2016 election. Which in my mind keeps it around a whole hell of a lot longer than the next 3 years.

    1. Most of it is already permanent.

  7. I'm just going to keep linking this everytime Reason writes approvingly of the USA FREEDOM Act.

    Under the present arrangement, government spies must operate within certain parameters that theoretically minimize "accidental" collections of Americans' data. The bill actually weakens these existing minimization procedures: instead of encoding them in law it hands the job of devising "privacy procedures" to the Attorney General, rather than the FISA court. What this means is that, under the proposed legislation, if the court found the NSA or other government agency spying on an individual (and his or her network of friends and acquaintances) because they engaged in constitutionally protected speech, the court would no longer have the authority to demand the destruction of those records. This is a giant step backward.

    1. The so-called "transparency" provisions in the bill contain numerous loopholes, including exemptions for back door searches by the FBI, and the possibility that the DNI may issue a certification claiming there are operational reasons why he or she can't report the number of Americans whose information has been collected. Rather than reveal anything meaningful, the provisions in the bill covering statistics to be submitted by the government will actually hide how many individuals are having their non-communications records ? purchases, financial records, etc. ? collected and stored. Under the procedures set up by this bill, we'll never know how many Americans the FBI is spying on by collecting and storing their emails, call records, Internet searches, etc., because the reporting procedures are designed to conceal.

      1. We're getting to the point where the commentariat is better at doing the staff's job than the staff.

  8. I wouldn't have voted for a bill increasing the transparency and putting modest restrictions on an entirely illegal enterprise either.

  9. I thought that I would have to put up with several years of Rand making "pragmatic" compromises with the establishment. Now for once he pokes the establishment in the eye, and Reason goes after him? Come on, guys.

  10. Listen, there's one reason and one reason only to vote to extend provisions of the PATRIOT ACT: That you agree with the provisions. If you don't like the provisions, don't vote for them.

    The fact that they put all sorts of other nice things in the bill is of no account.

    "Come on, drink it, it only contains a smidgeon of poison!"

    1. NGKC: It's always better to drink less poison.

      1. Look, Ron, with all due respect, sometimes someone - even a Senator - has to look at his situation and simply say, "there is some shit I will not eat."


  11. My biggest problem with Ron Paul is that he often let perfection be the enemy of good. The only reason to oppose this bill is that if he is confident he can get a better bill passed. In that scenario, sure, go for a better bill. If that isn't the scenario, take a small victory at least.

    1. The other reason is to avoid condoning evil acts. It isn't a victory to "constrain" someone into only murdering a few innocent people.

      1. "But your honor, I only got 3 headshots!"

      2. Why isn't it? Why is saying less evil is better than more evil condoning evil acts? It's saying evil is bad, & the less of it, the better.

  12. I'd rather hear Rand Paul's supporters defending him for being too scrupulous than listening to them making excuses for him voting to renew the PATRIOT Act.

    I've strained myself to the breaking point trying to justify his various compromises - now here's an instance of him letting his father's spirit break out.

    If Ron was too uncompromising, don't let Rand rush to opposite extreme and compromise *everything.* Rand's father is the reason he's being talked up for the Presidency now - don't become the anti-Ron, become the cleverer, more nuanced Ron.

    But, Rand, if you vote against the PATRIOT Act, I'll manage to forgive your intransigence.

  13. secret "lone wolf" surveillance of non-U.S. persons not affiliated with any terrorist organization, and roving wiretaps that allow one authorization to cover multiple devices?say, an unnamed suspect's cell phone, computer, and tablet.

    Cato Institute policy analyst Julian Sanchez tells me that while the lone wolf surveillance provision is "somewhat concerning," it has never been used.

    How would he know, considering it's secret?

    1. Also, what surveillance could possibly help defend against a "lone wolf" suspect?

      "Oh shit, he's at Home Depot. TAKE HIM DOWN!"

  14. . With regard to roving wiretaps, the idea that law enforcement should be able to legally track the communications of an identified terrorism suspect across multiple devices is reasonable.

    You do understand that an "identified suspect" includes everyone, right?

    I laud Paul for taking such a stance with election season underway. Republicans will punish him for this.

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  16. Libertarians are always handed shit-sandwich "compromises" like this, and then are criticized as being unrealistic perfectionists and unreasonable extremists if they dare to reject the deal. This is a transparent, cynical maneuver that nobody should take seriously anymore. To get a little reining in of surveillance activities, WHICH WOULD CONTINUE ANYWAY, in exchange for extension in advance to 2017 of PATRIOT ACT clauses that were due to sunset just next year, is not even a small victory. It is a capitulation. A victory would entail an increase in NET FREEDOM, not the granting of provisional and temporary privilege (or a cutback in heinous activities that still remain within the rulers' authority to conduct and accelerate at will). The capitulation deals always involve the losers having to acknowledge that the rulers retain the power and authority at issue; at best, the rulers promise to use the disputed power and authority more sparingly, more fairly, or with more mercy. Libertarians are about actually reducing the power and authority of the ruling class and devolving that power down to much smaller and more local units -- ideally, to individuals themselves. When a "deal" fails to advance that core mission, libertarians have failed. But the powers that be would cast such failure as "half a loaf" rejected by the petulant extremists. Yeah, right.

    1. I just want to say, nice one. Couldn't have said it better myself.

  17. The Senate will be under Republican control (next year?) so Rand doesn't have to hastily support iffy bills in the lame duck congress.

    Besides, Obama set a delight precedent for all future presidents. President Rand Paul will issue an executive order and turn the NSA into a hot dog stand, legalizing pot in all states, declare a 10 year tax holiday on corporate income tax, mandate voter IDs in all states, and enable the keystone pipeline.

    "You don't like the fact that I'm doing this on my own?" Rand will say. "Well, then you should have passed a law regarding these matters. President Obama said he's DOWN with executive overreach if only for the purpose of ending gridlocks."

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