'Fake' Reform: Little to Celebrate as USA Freedom Act Passes House

Though the overwhelming and bipartisan passage of the USA Freedom Act in the House of Representatives on Wednesday portends the end of the NSA's mass collection of Americans' private telephone records, civil liberties groups found little else to celebrate as the ultimate passage of the bill, which now heads to the Senate, would re-authorize a number of worrisome programs by extending the life of the controversial Patriot Act.

"This is a fake privacy bill. Corrupt members of Congress and their funders in the defense industry are attempting to package up their surveillance-powers wishlist and misleadingly brand it as 'USA Freedom.' This is disappointing and offensive, and we will continue to work to kill this bill and any other attempt to legitimize unconstitutional surveillance systems."
--Tiffiniy Cheng, Fight for the Future

Following a federal court ruling last week that deemed a provision of the Patriot Act, known as Section 215, as not a sound legal basis for the bulk phone data collection program, H.R. 2048, which passed the House by a vote of 338-88, would put a definitive end to the practice that was first revealed to the American public by documents leaked by whistleblower Edward Snowden in 2013. However, despite strong objections from critics, the bill reauthorized Section 215 for other uses and would expanded other surveillance mechanisms and powers for government agencies.

See the full roll call of the vote here.

Though some progressive groups found it possible to support the bill for its strong stance against the domestic phone records program, tougher critics said that though they welcome the end of that specific program, the USA Freedom Act's re-authorization of broader Patriot Act powers could not be ignored.

Advocacy groups like the Electronic Frontier Foundation and the ACLU had offered some initial support to earlier versions of the bill, but both groups ultimately withdrew their backing of the law once it reached its final form. Others were never convinced and said true reform would come only from allowing the Patriot Act, and all its varied authorities, to sunset as scheduled on June 1.

"Congress has an opportunity to reform mass surveillance by letting the Patriot Act expire, and that's what they should do," said Tiffiniy Cheng, co-founder of Fight for the Future, which has spearheaded a coalition opposed to mass surveillance, the re-authorization of the Patriot Act, and specifically Section 215. Wednesday's vote to reauthorize the Patriot Act, said Cheng, would actually "expand the scope of surveillance" by the NSA and others. The USA Freedom Act, she said, "is the opposite of reform. It makes absolutely no sense."

Elaborating on the implications of the bill, she continued:

There is literally no reason for the NSA to be surveilling everyone and their mom in order to go after their targets. Why they aren't satisfied with the US Constitutional limits on search and seizure and getting a warrant to do so is very suspicious. That's just rogue and illegal behavior and part of selling a culture of fear. We're demanding to see them build a case to surveil my mom and millions of Internet users around the world before they get one more peek at our private lives."

Congress is trying to sell the USA Freedom Act to the American people as reform, but what the bill actually does is extend and expand the government's power to monitor our communications under the PATRIOT Act. Far from reform, the bill will allow the government to invade even more of our private moments than ever by updating their surveillance powers for the devices and communications platforms we use most often these days."

This is a fake privacy bill. Corrupt members of Congress and their funders in the defense industry are attempting to package up their surveillance-powers wishlist and misleadingly brand it as 'USA Freedom.' This is disappointing and offensive, and we will continue to work to kill this bill and any other attempt to legitimize unconstitutional surveillance systems."

Within the halls of Congress, however, the climb toward meaningful reform in a Republican-controlled session has been a slog, with civil liberties groups hedging their critiques as well as their enthusiasm. As Russell Berman writes at The Atlantic:

The ACLU, for example, is taking no formal position on the bill even though it sent lawmakers a list of areas in which it didn't go far enough. [A complex bipartisan] dynamic was on display this week when GOP House leaders rejected a bid by a group of younger libertarian members to offer amendments that would have further restricted the NSA. "This is a very delicate issue," Speaker John Boehner explained to reporters. "I know members would like to offer some amendments, but this is not a place for people to bring out the wrecking ball."

Broad majorities of House Democrats and Republicans decided on Wednesday that the Freedom Act was good enough as is, increasing pressure on the Senate to accept their compromise. Yet just how significant would the new law be? Lawmakers in Congress have a tendency to hail just about any bill that gets a bipartisan vote as a landmark achievement. Staunch privacy advocates dismiss it for paying lip service to reform while leaving intrusive surveillance programs untouched. The truth on this one lies somewhere in the middle, said Benjamin Wittes, a senior fellow at the Brookings Institution and the author of its Lawfare blog. "This is a significant reform and rollback of a FISA program," he told me. But it pales in the context of the extensive collections of NSA surveillance tools and the many, often unrelated provisions of the Patriot Act. Section 215 is, after all, just one section, and the reforms in this bill beyond ending bulk data collection are modest. "This is one, small program," Wittes said. "It is not the big enchilada, or even one of the big enchiladas of the NSA programs."

With the bill now heading to the Senate, critics of the House version are still holding out hope that improvements can be made in the upper chamber. As Mark Jaycox, legislative analyst for EFF, wrote in the immediate wake of Wednesday's vote:

We believe the House missed an opportunity to strengthen the bill in light of the recent Second Circuit decision. We're urging the Senate to take steps to strengthen the bill. The bill is now sent over to the Senate, where all eyes will be watching. The Senate is expected to take up the USA Freedom Act anytime in the next two weeks, and is likely to vote on it by May 22. The Senate is uniquely positioned to improve the civil liberties protections in the USA Freedom Act by adding additional transparency and oversight provisions, adding stronger limitations on the collection of data on innocent people, and throwing out some of the recently-added provisions to the bill that were included at the behest of the intelligence community.

He added, "2015 can and should be the year for powerful surveillance reform, and we're urging the Senate to rise to this opportunity."