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Showdown Looming over Reform of Federal Surveillance Laws

House leadership rejects stronger protections shielding Americans from unwarranted snooping.

Rep. Bob GoodlatteJeff Malet Photography/NewscomThe House Judiciary Committee has advanced a bill that would provide Americans modest protections from unwarranted surveillance, but falls far short of what civil liberties and privacy groups (and several legislators) demand.

It's no surprise the USA Liberty Act passed out of the committee, 27-8, yesterday, having been hammered out by committee members and lawyers. But the committee resisted amendments that would make the privacy protections for Americans stronger.

The USA Liberty Act is meant to address the pending sunset of Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments. Section 702 is one of several federal authorities for foreign surveillance by the National Security Agency (NSA) and FBI to keep tabs on potential spies and terrorists.

But Section 702 has also been abused, allowing for "backdoor searches" of communications of American citizens. These communications are collected "incidentally" during the surveillance of foreign targets and are used by federal agencies in the investigation of domestic crimes. All of it happens without a warrant with the oversight of the secretive FISA court.

After Edward Snowden helped Americans understand the full extent to which our communications and metadata were being collected by the federal government, there's been a concerted effort by civil rights groups and lawmakers, with strong support for the Fourth Amendment, to restrain the feds.

The USA Liberty Act does modestly restrict the feds and requires that they seek court orders to view these communications when looking for evidence of a crime. But it doesn't do much about the collection of the data. And there are enough exceptions to worry that little will actually change.

The Electronic Frontier Foundation warns:

But the warrant requirement is limited due to a number of troubling carve-outs. First, this court oversight requirement won't be triggered except for those searches conducted to find evidence of a crime. No other searches for any other purposes will require court oversight, including when spy agencies search for foreign intelligence, and when law enforcement agencies explore whether a crime occurred at all.

Metadata—how many communications are sent, to whom, at what times—won't require court oversight at all. In fact, the Liberty Act doesn't include the reforms to metadata queries the House had previously passed (which unfortunately did not pass the Senate). In the Massie-Lofgren Amendment, which passed the House twice, agents who conducted queries for metadata would be required to show the metadata was relevant to an investigation. That relevance standard is not in the Liberty Act.

Reps. Zoe Lofgren (D-Calif.) and Ted Poe (R-Texas), co-founders of the House's Fourth Amendment Caucus, attempted to amend the Liberty Act to end these "backdoor searches" without a warrant. Their efforts were rejected. According to The Hill, leaders of the House would not continue supporting the bill with the increased restrictions.

But it's not clear that rest of the House will support the USA Liberty Act without these reforms. Several civil rights groups, like the American Civil Liberties Union, are warning the bill needs these strong protections from searches. And members of the Republican Freedom Caucus have expressed opposition to a renewal that doesn't have strong protections for Americans against unwarranted snooping. Rep. Justin Amash (R-Mich.) tweeted that the Liberty Act, as it stands now, codifies Fourth Amendment violations in searches, so we explect a "no" vote from him.

Members of the Senate have their own ideas. Sens. Rand Paul (R-Ky.) and Ron Wyden (D-Ore.) have teamed up on the USA RIGHTS Act, which more thoroughly restricts and allows fewer exceptions to unwarranted surveillance against Americans. There's also the absolutely terrible legislation Senate Intelligence Chairman Richard Burr (R-N.C.) introduced, codifying for federal intelligence agencies surveillance rules without warrant for a host of domestic crimes and taking a massive dump on the Fourth Amendment in the process. Burr's bill seems unlikely to get anywhere, but it's worth remembering that it's out there.

What we have is essentially a game of chicken with about four or five policy vehicles heading toward one another. There are two potentially divergent outcomes. Section 702 could simply expire, which some activists would prefer, but something even the most privacy-protecting lawmakers don't want.

Alternatively, House leadership could push an unchanged reauthorization into a must-pass omnibus spending bill at the end of the year, something Rep. Jerrold Nadler (D-N.Y.) worried about yesterday as he reluctantly voted against the Poe-Lofgren amendment. Then Americans would see no surveillance reforms at all.

Chairman of the House Judiciary Committee Bob Goodlatte (R-Va.) told The Hill he doesn't know when a floor vote may happen yet, but it'll have to be soon. If Goodlatte's Liberty Act passes, it will probably end up being one of his last major actions as a congressman. He announced this morning he will not be seeking re-election next year.

Photo Credit: Jeff Malet Photography/Newscom

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  • chemjeff||

    The USA Liberty Act

    Huh. So if we want to cut spending, all we have to do is name it the USA Puppies and Kittens Act?

  • JFree||

    If You Don't Buy This Act, We'll Shoot This Puppy Act

  • jogibew||

    I'm making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

    This is what I do... www.netcash10.com

  • CE||

    It's the Cut-Cut-Cut Act. Only without any cuts.

  • John||

    These laws are nice, but does anyone honestly believe that the intel and law enforcement community won't just ignore whatever protections are written into the law? If you trusted these assholes to follow the rules or to have any sense of decency or respect for the public, you probably wouldn't need to pass the laws in the first place.

    Information once collected will always be used in whatever ways benefit the entity that possesses it. And the power to collect information will always be used in whatever way benefits the entity that possesses it. No amount of "reform" or "control" or "blue ribbon oversight boards" or "independent civil liberties and privacy officers" will change that.

  • CE||

    Seems like the 4th Amendment is a stronger prohibition against domestic spying than any of these bills.
    If anyone bothered to enforce it.

  • John||

    There is that.

  • BestUsedCarSales||

    I can't help but wonder if even a thin veneer of legal repercussion to their spying helps. I don't know, all I can say is, hopefully it doesn't actively hurt us somehow.

  • cravinbob||

    My thoughts precisely just as just about every other thing they do I ask "Isn't that in The Bill of Rights already/" If govt wants to fight terrorists on US soil then they can pass stiffer legislation to protect our Rights as most sacred. They can remove "common sense" from their lexicon and "reasonable" from the 10 Amendments.
    If they really want to make this a better place then they pass legislation that enacts term limits, for everyone, 2 years tops and no more then go home.
    We are capable of running our own lives but without interference. Their job is to protect our Rights and to protect our borders from foreign invaders.
    Government has employed every tactic that the mob once used illegally. Now they find it beneficial to spy on us at home and easier too. The things they want to do they already are doing and will be angry if they have to shut it down. It is easier just as police now turn traffic stop into felonies whenever possible and by their departments instructions. Why else would you see a cop kill an innocent person just 10 seconds into the traffic stop? That cop knew it was going to be or almost sure of it. Then no consequences for the cop. Jury will not send a cop to prison as he has "back up" and the jurors have to live in that city. No crime was stopped and no terrorist act has been squelched from anything they do but Rights are threatened, and that is the only thing they are good at.

  • Aloysious||

    ...but does anyone honestly believe that the intel and law enforcement community won't just ignore whatever protections are written into the law?

    It's only illegal if you get caught. If you don't get caught, it isn't illegal.

  • John||

    http://www.nytimes.com/2017/11......html?_r=0

    I am sure the organization who employs and promoted this asshole is going to follow all of your laws.

  • Earth Skeptic||

    And where did he get $6k for a Rolex?

  • Hugh Akston||

    Surveillance reform bill reduces the allowed insertion depth from three knuckles to two.

  • Chipper Morning Truthjammer||

    Knuckle deep inside the borderline
    This may hurt a little but it's something you'll get used to
    Relax. Slip away

  • BYODB||

    There is no 'showdown' looming anywhere. The government is happy to continue spying on American's 'for our own good' and most American's are ecstatic that big brother is watching.


    Ah, Democracy.

  • loveconstitution1789||

    I could save Congress a bunch of time. All domestic surveillance without a warrant is already unconstitutional. No new laws required.

  • Longtobefree||

    Too true. Like we need 'stand your ground' laws because self defense is too hard to understand.
    Only in real life; try this madness in a movie or TV show and you would get laughed off the screen.

  • Chipper Morning Truthjammer||

    Re the alt-text, is Starbucks changing their recipe or something?

  • Cynical Asshole||

    Alternatively, House leadership could push an unchanged reauthorization into a must-pass omnibus spending bill at the end of the year

    I think that outcome is probably the safe bet. Which ever option requires the least amount of work, intestinal fortitude, and maintains the status quo is usually the option Congress goes with.

  • Hugh Akston||

    I wonder if it would be legal to elect a slate of filter-feeders like sponges, oysters, abalone, and anemones to Congress. They seem particularly suited for a job that requires literally no action or backbone.

  • m.EK||

    Probably a silly thought, but would it not be appropriate to "remind" the legislators that the 4th Amendment clearly states that they can NOT legislate, decree, or "rule" on anything violating a persons right to privacy of their personal effects?
    If I recall, each of these "public officials" swore or affirmed an Oath of Office. A legal and binding contract clearly stating that they would preserve, defend, and protect the Constitution,,, AS WRITTEN! (doesn't it still take a successful Amendment Process to alter the Constitution?)
    It seems that writing legislation that undermines your "right" to privacy of your effects and papers, would constitute a crime. TREASON is probably the crime.
    Boy, with two shooting wars, the wars on poverty and drugs. I would not want to face the prescribed penalty for treason during war time!
    Long neck, short drop, problem solved.

  • Tionico||

    Sorry, but not quite treason, though that would be so sweet to see. Treason is named and defined in the Constitution, the ONLY crime that is. This isn't quite "making war on a state, or several states" nor "aiding and abetting an enemy".

    It IS perjury, a felony, by means of swearing a solemn oath then breaking it. Every one of these louts need to be so charged..... everyone promoting these unconstitutional "laws", which, per that same document, are no law at all, they being in direct opposition to the clear meaning of said Constittution.

  • Jickerson||

    "aiding and abetting an enemy".

    They are, in effect, trying to overthrow our constitutional form of government. They are internal enemies. How is this not treason?

    But fine, even going after them for perjury would be nice. What they shouldn't be allowed to do is get away with violating the highest law of the land.

  • Hank Phillips||

    Everyone but looter politicians understands there is a difference between reform and repeal. Reform is like "adjustments" in Latin America...

  • Amir Najam Sethit||

    great..

  • Principal Spittle||

    Searching your property and effects for crimes prior to seeking a warrant for evidence of the crime is the definition of a backdoor and the only purpose of the fourth amendment.

    I explect we are fucked.

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