Skip to main content

What's Next for NSA Spying Reform in Congress?

DEEPLINKS BLOG
December 7, 2014

After months of negotiations, pressure from advocacy groups, and tens of thousands of messages from concerned citizens, the Senate failed to move the USA Freedom Act forward for a final vote. While it was a tough loss, a Republican Congress will be forced to take up NSA reform since three sections of the Patriot Act expire in June. The USA Freedom Act—a bipartisan bill with support in both houses of Congress—sets the minimum requirements needed for surveillance reform and should be reintroduced in the upcoming Congress.

Here are three things a Republican Congress can do next year:

Don’t Reauthorize Section 215 of the Patriot Act

Three provisions of the Patriot Act expire in June: Section 215 (which the government uses to collect the call records of millions of innocent Americans), the “Lone Wolf provision,” and the “roving wiretap” provision. There's also a clause in the Patriot Act that the government may argue allows it to continue sending orders despite the expiration of Section 215.

Even though the President can stop the collection of Americans' calling records at any time, Congress can end the program by not reauthorizing Section 215. If it does, the government would either be forced to find some other legal "authority" or end the program.

Take Up the USA Freedom Act—And Make it Better   

If Congress chooses to reauthorize Section 215, the USA FREEDOM Act must serve as a floor for any reform proposals. That means that any legislative proposals intended to be comprehensive packages must include, at a minimum: ending bulk collection of telephone records, the creation of a special advocate in the FISA Court, and the addition of new transparency requirements.

But, as we’ve said before, complete NSA reform must cover more. This includes reforming Section 702 of the FISA Amendments Act and the National Security Letter statutes, investigating Executive Order 12333, banning the NSA from undermining commonly used encryption standards, enhancing the Privacy and Civil Liberties Oversight Board powers, and providing Americans a clear path to assert legal standing to sue the government for privacy abuses.

Make the EO 12333 Investigation By the Senate Intelligence Committee Public

It's important to remember that the Patriot Act isn't the only authority being used to mass spy on users. In recent months, news reports and advocates have focused on Executive Order 12333 (EO 12333). EO 12333 is the primary spying authority used by the NSA to conduct mass collection of information. It’s the authority used to hack Google and Yahoo data centers; to collect and store the cell phone communications of entire countries; and to collect Americans’ address books, contact lists, and instant messaging chats.

This year Senator Diane Feinstein, the chair of the Senate Intelligence Committee, began a review of EO 12333 after she admitted her committee does not  “sufficiently” oversee EO 12333 programs. With the Republicans now in control of the Senate, the new chair of the Intelligence Committee, Senator Richard Burr, should continue the review, make it public, and conduct more extensive oversight.

A Republican Congress Will Be Forced to Grapple with the Patriot Act

There’s a growing consensus that the 114th Congress will be a difficult place to pass surveillance reform. Senator Richard Burr, who will lead the Senate Intelligence Committee famously said “If I had my way, with the exception of nominees, there would never be a public intelligence hearing.” His House counterpart, Representative Devin Nunes, once called vigorous privacy advocate Representative Justice Amash, “Al Qaeda’s Best Friend.”

There's also the leadership in both houses. Incoming Majority Leader Mitch McConnell actively opposed the USA Freedom Act, while House Judiciary Committee Chair Rep. Robert Goodlatte gutted the privacy protections in the House-passed USA Freedom Act.

But we need to look at the glass half full. And here’s why: Three key provisions of the USA Patriot Act expire in June. And three active legal cases challenging the constitutionality of the government’s use of Section 215 continue to advance. Current lawmakers have been loud and clear on NSA reform, and many Senators-elect have spoken out against, or voted to reform, the NSA's practices. On top of all of this are two independent commissions that sharply criticized the government's use of Section 215. Both ruled the calling records program ineffective, while one ruled the program illegal and unconstitutional. 

Finally, and perhaps most importantly, privacy and preserving Constitutional freedoms aren’t one-party issues. Poll after poll shows Democrats, Republicans, and independents demanding NSA reform and being skeptical twoards the NSA’s calling records program. Activists, privacy advocates, and concerned citizens from across the political spectrum will continue to demand politicians take surveillance reform seriously.

Lots of Choices, But Little Time

For the past year and a half Americans have voiced their disdain and skepticism towards many of the NSA's programs. The Republican Congress will set the agenda next month and must listen to their constituents. These are just a few of the actions a Republican Congress can take and while prospects remain hazy about what surveillance reform may look like next year, one thing is for sure: We'll be fighting to ensure that all bills that do not sufficiently reform the NSA are killed and that only good bills advance.

JavaScript license information