The battle for surveillance reform is in full swing and even before Sunday’s special session vote on the USA FREEDOM Act (USAF) many privacy advocates are worried about a number of amendments currently in the pipeline.
To that end, the Niskanen Center has signed a coalition letter opposing amendments to USAF that were proposed by Sens. Burr and Feinstein. It is imperative that the Senate opposes these amendments, both of which would significantly diminish the substantive reform measures contained in USAF.
As Harry Geiger, Senior Counsel at the Center for Democracy and Technology (CDT), has pointed out, both amendments are poised to water down the reforms articulated in USAF. Yesterday, CDT released detailed explanations of their disagreements with the Feinstein amendment and the even more troubling Burr amendment.
Senator Feinstein’s Bill, the FISA Reform Act of 2015:
- Fails to end bulk collection of metadata by broadening the definition of “specific selection term” to permit terms that are nebulously “consistent with the purpose and need to obtain foreign intelligence information”;
- Does not touch upon the FISA Court’s secretive interpretations of law, thereby failing to provide the public with a more open and transparent legal process – hallmarks of an open and democratic society; and
- Permits the director of the FBI to acquire secret court orders demanding firms retain call detail records for two years.
Senator Burr’s Bill, the FISA Improvements Act of 2015, in addition to mimicking the Feinstein amendment, also:
- Actually expands the intelligence community’s surveillance powers, providing the FBI with new authority to obtain electronic communication transactional records via national security letters, without any court order requirement;
- Permanently enshrines the broad surveillance powers, repealing sunset provisions for Section 215; and
- Enshrines the NSA’s bulk collection program for two years before Congress could reform it.
These proposals would effectively nullify any substantive changes to the surveillance state. By codifying the bulk collection program and excising any sunset provisions for Section 215, Sen. Burr’s amendment would preserve the status quo. Although Sen. Feinstein’s revisions are less troublesome, the more expansive definition of “specific selection terms” and lack of FISA transparency reform are discomforting for the prospects of reigning in government surveillance. Neither of these amendments will strengthen the reform measures contained in USAF; indeed, they will significantly weaken the bill.
Given that a majority of Americans think the PATRIOT Act ought to be reformed in order “to limit government surveillance and protect Americans’ privacy,” the Burr-Feinstein amendments are complete non-starters, especially this late in the debate. Ben Sperry, legal fellow at TechFreedom, agrees: “Since their bills have no chance of passing the House, Sens. Burr and Feinstein should focus their efforts on passing the USA FREEDOM Act, a true compromise that helps restore the proper balance between privacy and security.”
Congress has an opportunity to show the American people that this is an issue both sides of the aisle can work together to advance. Libertarians, conservatives, and liberals from across the political spectrum are working together to reform the surveillance panopticon that has descended upon post-9/11 America. The Senate should do the same and return the American peoples’ civil liberties to a position of sacrosanctity.