Congress Did Not Pass an Anti-Surveillance Law (And Other Thoughts About the USA Freedom Act)
When President Barack Obama signed the USA Freedom Act, it did not end bulk data collection or mass surveillance programs. It did not address many of the policies, practices or programs of the NSA, which NSA whistleblower Edward Snowden revealed. It did not sharply limit surveillance nor was it an anti-surveillance law. The USA Freedom Act renewed Patriot Act provisions, which had sunset days ago. However, it is difficult to disagree with Snowden’s generally optimistic assessment.
During an Amnesty International UK event, as the Senate was about to pass the law, Snowden declared, “For the first time in forty years of US history, since the intelligence community was reformed in the ’70s, we found that facts have become more persuasive than fear.”
Snowden continued, “For the first time in recent history we found that despite the claims of government, the public made the final decision and that is a radical change that we should seize on, we should value and we should push further.”
He was specifically referring to how the Congress and courts had rejected this NSA surveillance program.
In that sense, June 2 was a day that the people won against the security state. US citizens took away the government’s control of nearly all of their domestic call records. And power was forced to act because their operation of a program and the operations of a secret surveillance court, the Foreign Intelligence Surveillance Court, were no longer seen as legitimate.
The extent of the victory, however, probably ends there.
As another NSA whistleblower, Bill Binney, said during an event in Chicago, the USA Freedom Act was a “surface change.” The government still has Executive Order 12333, which it can use for “content collection of US domestic communications as well as metadata. It’s all done through the Upstream programs. It’s done without oversight at all. There’s no oversight by Congress or the courts.” [Upstream is the series of different cables and fiber optic taps that the NSA uses to collect data that passes through fiber networks. Phone calls, emails, cloud transfers, pictures, and video, according to Binney, can all be collected.]
Journalist Marcy Wheeler pointed out that bulk collection of Americans’ international phone calls will continue. “Backdoor searches” under Section 702 of the FISA Amendments Act will continue, as the NSA can collect emails, browsing and chat history of US citizens without a warrant.
A number of the senators who voted for the USA Freedom Act did so because the three Patriot Act provisions had expired. They wanted something passed quickly so the NSA could resume spying operations that were supposed to be put on hold. So, some senators saw the USA Freedom Act as both a law to protect security as well as privacy.
Senator Bernie Sanders voted against the USA Freedom Act and explained in a released statement that it would still give the NSA and “law enforcement too much access to vast databases of information on millions of innocent Americans.”
The independent senator voted against the Patriot Act and both of the law’s extensions in 2005 and 2011.
The only Democratic senator to vote against the law. was Tammy Baldwin.
“I voted against this bill because it doesn’t take action on the warrantless search loophole and still allows for government overreach, abuses and infringement on the freedoms guaranteed by our Constitution. I look forward to getting this right and working to help Congress pass legislation that protects our constitutional freedoms and strengthens our counterterrorism efforts,” Baldwin declared.
The other senator to vote against the USA Freedom Act on principle was Republican Senator Rand Paul. He did not approve of how the phone companies would still be able to suck up Americans’ phone records. He was not convinced that it was appropriate for the secret surveillance court to be able to decide when an “advocate” should be brought in to argue against the government’s position. And Paul was bothered by the fact that the Director for National Intelligence James Clapper, who lied to Congress, supported this bill.
Perhaps, Paul’s most compelling objection was the following:
We went to the court, the Second Court of Appeals, the highest court in the land just below the Supreme Court, said that what they are doing is illegal, but we don’t yet have a ruling on whether it’s constitutional. One of my fears about the bill that we’re going to pass, the sort of in-between step that some think it may be better, is that it will moot the case.
This means that the court case may never get heard at the Supreme Court now. I have a court case against the N.S.A. There’s another district court that has ruled against the N.S.A. We now have an appellate court ruling against the N.S.A. The court may well look at the activity of the senate and say well, you guys have fixed the problem, we don’t need to look at it anymore, it’s no longer relevant.
Senators who wanted the bill to be stronger tried to overcome Senator Mitch McConnell’s obstructionism. They were unable to get several reasonable amendments to the floor for a debate or a vote.
Amendment 1446: Require the government to get a warrant before collecting personal information from third parties
Amendment 1441: Raise the standard for government collection of call records under FISA from “reasonable grounds” to “probable cause”
Amendment 1442: Limit the government’s ability to use information gathered under intelligence authorities in unrelated criminal cases
Amendment 1443: Make it easier to challenge the use of illegally obtained surveillance information in criminal proceedings
Amendment 1454: Prohibit the government from requiring hardware and software companies to deliberately weaken encryption and other security features
Amendment 1444: Clarify the bill’s definition of “specific selection terms”
Amendment 1445: Require court approval for National Security Letters
Amendment 1455: Prohibit the government from conducting warrantless reviews of Americans’ email and other communications under section 702 of the Foreign intelligence Surveillance Act
Amendment 1460: Strengthen the bill with additional provisions from previously introduced surveillance reform legislation.
Yet, McConnell and the security hawks who tried to pass three amendments that would have weakened the “reform” aspects of the law even more failed. It infuriated McConnell greatly.
McConnell took to the floor to wail about how this was a “resounding victory for Edward Snowden” and “those who went against our Homeland.” He said, “It surely undermines American security by taking one more tool from our warfighters, in my view, at exactly the wrong time.” He whined and moaned about how this reminded him of that speech Obama gave in Cairo, which questioned “American exceptionalism.” This law was the product of people thinking all countries are alike and that deeply bothered McConnell.
It was a pathetic and ridiculous tantrum to behold, and yet it was perfectly representative of the arguments and people who lost.
Senator Richard Burr, chairman of the Senate intelligence committee, tried to stand in the way of the USA Freedom Act. According to Binney, nine years ago, Diane Roark, a whistleblower, was told when she warned him about the NSA, “We know the NSA’s all messed up, but now is not the time to fix it.”
Even though the many of the NSA’s mass surveillance powers survived, Burr failed at his job to preserve more of the NSA’s power. That is significant because, prior to Snowden, Burr likely would have succeeded.
A long and arduous struggle against the global security state continues. People like NSA whistleblower Thomas Drake, who say the USA Freedom Act codifies post-9/11 legal framework, are right. However, for the first time in forty years, power is finally reacting to the people when they express concerns about how their civil liberties are being infringed upon by security programs.
There will be more revelations. Binney says there still are surveillance programs that have yet to be disclosed. Organizations like the ACLU and Electronic Frontier Foundation will continue to wage battles in the courts, and groups like Demand Progress and Fight for the Future will keep mobilizing people against mass surveillance.
Most of the mainstream discussion in the United States centers on how the global security state impacts Americans, but there are entire populations around the world that are victims of the imperialism of US spy agencies.
Often, the disproportionate impact of the security state on black and brown-skinned people goes ignored. Agencies like the FBI, which feed surveillance data to police departments, can use that data to go after protesters. The DEA also engages in dragnet surveillance in its War on Drugs, and a number of the tactics in the War on Drugs have become standard practice in the War on Terrorism.
Nevertheless, the moment is to be remembered. It is a tiny, tiny preview of what people are capable of achieving if they organize, struggle, and make demands of those in power.
Of course, the USA Freedom Act is not enough. It does not even begin to end mass surveillance, but that does not negate the overall positive effect this may have in energizing people and convincing more Americans that there are severe problems with mass surveillance. After all, if the NSA bulk phone records surveillance program was unlawful and wrong, what other mass surveillance programs should be ended or sharply curtailed?