FISA

A Compromise Bill on Domestic Surveillance Reform Aims to Do Just Enough to Shut Trump Up

Privacy activists on the left and the right decry a limp set of proposed changes to the USA Freedom Act.

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A lackluster compromise bill to reauthorize and reform federal surveillance powers has been released, and privacy rights activists on both the left and the right are speaking out against it.

At the end of the week, the USA Freedom Act will sunset if it's not renewed. Passed after Edward Snowden revealed that the National Security Agency (NSA) was secretly using the Patriot Act to collect mass amounts of Americans' phone and internet records, the act formalized the process but also added restrictions on the ability of the feds to actually access that information.

The feds have actually abandoned the practice of collecting and retaining all our metadata because—surprise!—not only is it a violation of our privacy rights, it's not a particularly effective way of fighting terrorism or crime.

Nevertheless, the government, once granted power, rarely gives it up completely. Rather than simply letting these authorities all expire, Congress is hammering out a renewal with reforms intended to further restrict the ability to use those powers against Americans without getting a warrant first.

But there's little agreement on what those reforms should look like. Yesterday evening, Reps. Jerry Nadler (D–N.Y.) and Adam Schiff (D–Calif.) introduced the compromise bill they're pushing forward as ranking members of the House Judiciary Committee and House Select Intelligence Committee, respectively. The bill is H.R. 6172, the USA Freedom Reauthorization Act.

This bill is not a compromise designed to truly embrace the proposition that the U.S. government shouldn't secretly snoop on its own citizens. Rather it's about eliminating its worst excesses, some of which have already stopped on their own, and preserving the general nature of the authority.

One of the good things the bill does is completely eliminate the call records collection program. These have already been stopped, but it was the NSA's own decision because it was ineffective and they kept accidentally collecting more data than they were permitted. This also means that under current law, the NSA could decide to fire it back up. These reforms would stop it from happening.

The proposed reforms would also prohibit authorities treating cell location and global positioning system (GPS) information as though they're part of a "business record" (meaning the agencies will treat collecting this data as a form of surveillance subject to stricter regulation).

The proposal would require the destruction of collected records of Americans after five years, but there are so many exceptions that it's hard to treat these stipulations seriously. One of the exceptions allows the feds to retain records if they're "enciphered or reasonably believed to have a secret meaning," strongly suggesting that they can store data just on the basis of it being encrypted, which online communications increasingly are.

Directly related to the Foreign Intelligence Surveillance Amendment (FISA) Court warrants approved to wiretap Carter Page and the serious problems with the FBI's behavior, there are some reforms that are not connected to the authorities provided by the USA Freedom Act. It calls for the attorney general to sign off on any surveillance of a federal official or candidate for federal office, punishment and possible removal of any federal official who makes false declarations (or engages in misconduct) before the FISA court, and increases the potential penalty for criminal penalties related to the misuse of FISA from five years of imprisonment to eight.

The bill also boosts the ability of the FISA court to bring in independent amicus curiae advisers to evaluate what the court is doing and help assure that FBI officials aren't attempting to seek warrants to snoop on activities protected by the First Amendment. And the reauthorization sunsets again in three years. This is not a permanent renewal.

And that's good because privacy activists don't believe the bill goes nearly far enough. Adam Brandon, president of the conservative think tank FreedomWorks, is telling lawmakers today to vote no on the bill:

Not included are many common sense protections that would have garnered widespread bipartisan support had they been allowed their day as part of a real legislative process. These include stronger protections against surveillance orders targeted substantially at activities protected under the First Amendment, such as communications with journalists, protests, or religious observance. They include limitations on the use of business records collection and the requirement that surveillance applications directed towards a US person be subject to a probable cause warrant standard. They also include a much stronger role of an amicus curiae in assessing whether FISA applications conform with the legal rights afforded to Americans under the Fourth Amendment.

Importantly, neither Title II nor the amicus expansions in this bill are likely to have actually prevented the FISA process abuses revealed by the report of DoJ Inspector General Michael Horowitz with respect to the surveillance of Trump campaign employee Carter Page. Neither President Trump's concerns about the use of FISA against his campaign, nor larger-scale concerns about how the government has violated the privacy of millions of ordinary Americans, are well addressed in this bill.

Sen. Rand Paul (R–Ky.) is also not a fan:

Demand Progress is attacking the bill from the left for many of the same reasons. The group is encouraging members of Congress to vote no in a statement that reads in part, "These reforms are fully inadequate. Further, they are part of an ongoing effort to prevent Congress from considering surveillance reforms that would meaningfully protect their constituents' privacy."

Given that the part of the bill that requires more oversight by the attorney general only covers federal officials and candidates, it seems designed to assure President Donald Trump that he's "safe," even though he was never even personally wiretapped. Page himself was not a candidate for office when he was wiretapped and these new rules wouldn't have stopped what happened to him.

As Spencer Ackerman at The Daily Beast notes, there are alternate bipartisan proposals to meaningfully restrain the use of secret FISA warrants against Americans that could protect against future abuses and mistakes that we saw in the Page case. But that's not what's being pushed forward. Historically, the strongest voices for more privacy here (like Paul's) are in the minority. The political establishment prefers to reform as little about domestic surveillance that it can possibly get away with.

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  1. The feds have actually abandoned the practice of collecting and retaining all our metadata because—surprise!—not only is it a violation of our privacy rights, it’s not a particularly effective way of fighting terrorism or crime we already freely give all that information and more to Google, Facebook, Amazon, Kroger, Walmart, Verizon, Samsung and many more so who needs to pay the federal government to do a less-thorough job than what the private sector is doing already for free?

    1. And the Feds can always force those private companies to give up the info.

  2. HAHA. It’s like unreason went back in time 10 years.

    A mostly factual article will little TDS or stupid Shackford opinion.

    OKAY! Who are you and what have you done with Scott!?!

    1. Except the headline. Apparently Nadler and Schiff have introduced a bill to placate Trump. But yeah if you ignore the headline the article is informative.

    2. The TDS usually starts in the title.
      “A Compromise Bill on Domestic Surveillance Reform Aims to Do Just Enough to Shut Trump Up”

      The title could have been “Trump Fights Congress to Curtail FISA Abuses”.

      Even when Trump is clearly fighting the libertarian fight, it’s still all just contempt for Trump.

  3. Unless the people who broke the law and abused the FISA court to spy on Trump are sent to jail, it won’t matter what reforms are passed. Make all of the rules you like, but it won’t matter if the people you expect to follow them know they can break them without any consequences. No system can work if the people running it can break the rules with impunity. And that is what we have now. “Reforms” are just changing the window dressing

    1. Still waiting on Mr. Durham….

      1. I wouldn’t hold my breath on that wait. I don’t think Barr is particularly interested in prosecuting anyone for what went on with FISA or Russia-gate.

        Judicial Watch has been tracking it and they’ve said they’ve seen nothing to indicate that Durham is doing a serious investigation. He’s not convening grand juries, he’s not issuing subpoenas, no one is being arrested. I’d say that it’s just another attempt to run out the clock by yet another Washington insider in Bill Barr.

      2. Keep waiting. Barr is a government lifer that will defend the status quo.

    2. I thought you were arrested for a DUI yesterday, Alex. Your CT bullshit is still in place.

      1. Waiting on a CP download pedo?

    3. “Unless the people who broke the law and abused the FISA court to spy on Trump are sent to jail, it won’t matter what reforms are passed. ”

      This. A million times this.

      Without perp walks, it’s established law that the #DeepState can rule with impunity.

  4. >> One of the good things the bill does is completely eliminate the call records collection program. These have already been stopped

    yeah okay.

    1. I’m trying to remember the name of the data collection program from the 90s or early 2000s where they said they ended it, but in reality they just change the name.

      1. Are you thinking of ECHELON ?

        1. Yes!

  5. “”and increases the potential penalty for criminal penalties related to the misuse of FISA from five years of imprisonment to eight.””

    No teeth. It’s not misuse if you can claim is as a mistake. Even if there are many mistakes. No one knows how to game the system like the insiders. It’s like Hillary with her “do not recall” answers.

    If it had teeth, some FBI members would be look at jail time now.

    1. Since no one will ever be prosecuted the sentence is irrelevant.

      1. “We’ll increase the penalty we refuse to apply to obvious criminals from 5 years to a *zillion* years!”

        Still some hope if Trump wins. If he loses, it’s time for the Black Pill.

  6. If the president won’t sign the revision, the Patriot Act powers expire, and President Trump has already said he won’t sign it without serious reform of the FISA system. If the FBI and its supporters in Congress howl about those powers expiring or being curtailed, that should just be music to President Trump’s ears. If it makes the FBI howl in pain, then it can’t be all bad.

    1. +100000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000000

    2. If this does pass, I just hope Rand is the last person to talk to Trump before it reaches his desk. I don’t trust him not to sign it after he said the same about omnibus bills. I can see him signing this to just avoid a big fight while the economy is hurting. Then again I could see him veto it just to have a big fight to distract from the economy. As we get closer to the election everything will become whether it helps or hurts his election chances.

      1. It’s a damn good weapon to peel off moderate Democrats, and the Republican base is pissed off at the FBI for the Russoa hoax, so there won’t be outcry from them for slapping the bad cops hands.

        1. #NeoClowns hardest hit.

      2. It’s personal with Trump. They screwed him with this. He should take it personal. They did it to him because they hate him and his policies.

    3. If Trump doesn’t sign it it will only prove he’s Puttin’s puppet. we know that will be the response of those with TDS

  7. “”A Compromise Bill on Domestic Surveillance Reform Aims to Do Just Enough to Shut Trump Up””

    Really? I thought everyone knows that you can’t shut Trump up. Doesn’t matter what you do.

    1. You were supposed to have forgotten about that by now.

    2. But he will still tweet!

  8. “But there’s little agreement on what those reforms should look like. Yesterday evening, Reps. Jerry Nadler (D–N.Y.) and Adam Schiff (D–Calif.) introduced the compromise bill they’re pushing forward as ranking members of the House Judiciary Committee and House Select Intelligence Committee, respectively. The bill is H.R. 6172, the USA Freedom Reauthorization Act.”

    When we call this a “compromise bill”, what do we mean exactly?

    This was supported by the House leadership, which is Democrat, and it made it out of those committees. If Barr supports it, I’m not sure that matters any more than Attorney General Session’s opinion on legal recreational marijuana.

    The opposition to renewing the Patriot Act provisions without serious reform of the FISA process (to exclude American citizens) was centered around Mike Lee and Rand Paul in the Senate–as well as President Trump himself.

    Because William Barr agrees with the Democrats in the House doesn’t make it a compromise bill. If the Republicans in the Senate won’t support it and/or President Trump refuses to sign it, then if Congress doesn’t have a veto-proof majority, the Patriot Act provisions expire–regardless of whether journalists call it a “compromise” bill.

    If there’s no consensus with the Senate and the White House, there’s no consensus. This fake Overton window bullshit needs to stop.

    1. It hasn’t made it out of committee yet. It was just introduced last night. So we’ll have to wait and see how the votes go with the minority House members. But yeah it is too early to say bipartisan especially since the only sponsors are Dems. You’ll see the likes of Tom Cotton and maybe Lindsey Graham (he did make a comment earlier this year that may show a change in his views) come out for it in the Senate.

  9. Incidentally, if and when we complete President Trump’s pullout of from Afghanistan in 14 months, we should look at finally repealing the AUMF after 9/11.

    How can Trump’s neocon critics justify that authorization after we’ve made peace with the Taliban and left the country?

    1. Don’t look now, but peace is not at hand.

  10. “The feds have actually abandoned the practice of collecting and retaining all our metadata”

    The feds claim to have abandoned the practice of collecting and retaining all our metadata.

    They expect us to just take their word for it, but why should we.

    1. If it hadn’t been for Snowden, they’d still be claiming they never did it in the first place.

  11. “It calls for the attorney general to sign off on any surveillance of a federal official or candidate for federal office”

    It’s wrong if it happens to *us*!

    “punishment and possible removal of any federal official who makes false declarations (or engages in misconduct) before the FISA court”

    Isn’t that the law already? It’s the enforcement which is the problem.

    “and increases the potential penalty for criminal penalties related to the misuse of FISA from five years of imprisonment to eight.”

    If there are no convictions, why would the hypothetical prison sentence be relevant?

    1. “punishment and possible removal of any federal official who makes false declarations (or engages in misconduct) before the FISA court”

      #DeepState thugs who turn the government against the people will face “possible removal”.

      They’re just spitting in our faces.

  12. So… The [WE] foundation [D-Party] bill will be the one’s to keep the surveillance alive after all? Should’ve seen that coming.

  13. ” it seems designed to assure President Donald Trump that he’s “safe,” even though he was never even personally wiretapped. ”

    Citation?

    Does Reason have the list of all communications the #DeepState recorded, and Trump is not on any of them?

    I doubt this. More likely, this is just more #FakeNews from Reason.

  14. Write your legislators FISA must be allowed to expire.

  15. “Shut Trump up”!? Shut up, and let a bunch of Obama corrupt cops spy on your campaign and ruin the lifes of some of his supporters.

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