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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schiffnadler_1161x653 | AT BENIC/UPI/Newscom
Rep. Adam Schiff and Rep. Jerry Nadler (AT BENIC/UPI/Newscom)

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.