Legislation that would restore legitimacy to the National Security Agency by giving off the appearance of improving privacy protections and enhancing transparency of United States surveillance passed in the Senate intelligence committee. The bill was drafted and shepherded through the committee by Democratic Senator Dianne Feinstein, one of the most passionate defenders of US government surveillance.
The American Civil Liberties Union argues Feinstein’s legislation would legalize “warrantless wiretapping of people known to be located in the US for seven days, if surveillance began abroad. It would legalize “queries of US persons’ names or email addresses without probable cause” so long as there was an “articulable foreign intelligence purpose.”
Under a section of the PATRIOT Act, Section 215, which is supposed to govern bulk data collection, the bill changes how the NSA is allowed to access the data but it does not limit the amount of records that are being collected by the NSA on a regular basis.
Yet, those targeted in searches, according to Marcy Wheeler, would not have to be tied to al Qaeda or even Iran. If they were “associated with activities in preparation” for “international terrorism,” they could be “queried.”
“Does that include selling drugs to make money to engage in “terrorism”?” Wheeler asked. “Does that include taking pictures of landmark buildings? Does that include accessing a computer in a funny way?”
Julian Sanchez of the CATO Institute thinks the bill might make it easier to collect the content of Americans’ communications.
Thomas Earnest, a lawyer and managing editor of Just Security, wrote that the legislation would “codify the NSA metadata program in its current form” and, more significantly, it would “eliminate argument by critics that the program exceeds the scope of Section 215.”
Feinstein’s bill would allegedly make it possible for “outside groups” to file amicus briefs and challenge Foreign Intelligence Surveillance Court rulings. However, as has been seen over the past months, groups are already filing challenges so this should not be considered much of a change at all.
As Trevor Timm of the Electronic Frontier Foundation suggests, her bill would “permanently entrench the NSA’s collection of every phone record held by US telecoms.”
She likes to say that the dragnet collection of Americans’ phone records is “intelligence collection,” and “not a surveillance program.” The bill that Feinstein has proposed is not a reform legislation.
The pro-security state senator does not even consider her bill to be “reform.” It is called the FISA Improvements Act and grows government bureaucracy to ensure that it looks even more like nobody did anything wrong if another whistleblower like Snowden would emerge in the future.
In her press release on passage of the bill, one can see that she characterizes it as increasing “privacy protections, oversight, [and] transparency of critical intelligence programs.”
When Feinstein announced in a statement during a Senate intelligence committee hearing on September 26 what her bill would likely contain, she did not use the word “reform.” It was very clear that any proposals in her legislation would be designed to help the NSA regain the public’s trust and “transparency” would all be for the purpose of persuading citizens that practically all surveillance had been legal, careful, effective and necessary in a post-9/11 world.
Legislation would not constrain the NSA because Feinstein does not really believe the NSA is out of control at all (that is, unless the surveillance involves democratically elected world leaders).
Feinstein’s legislation to bring transparency was marked up and senators voted on the bill in total secrecy. She did not want the American people to be able to hear senators debate her legislation and invoked “national security” to keep the markup closed.
Both Senator Ron Wyden and Senator Mark Udall, who serve on the intelligence committee, voted against the legislation. They have both been advocates for reining in surveillance and ending some surveillance programs entirely.
Wyden declared, “The Senate Intelligence Committee approved a bill that would codify overbroad surveillance practices that infringe on the constitutional rights of law-abiding Americans without making America any safer. I voted against this legislation in committee, and I will strenuously oppose any similar attempts to codify overreaching government surveillance.”
He said Feinstein’s bill maintains “business as usual instead of ending the bulk collection of Americans’ personal records, closing the back-door searches loophole that allows intelligence agencies to search for Americans’ communications without a warrant, ending the government’s reliance on secret surveillance law, and ensuring that courts can adequately review these authorities and the actions taken under them.”
Udall fought to amend Feinstein’s bill, but nobody could witness this effort because Feinstein made certain the process in which she passed her legislation took place behind closed doors.
In reaction to the passage of the legislation, Udall stated, “The NSA’s ongoing, invasive surveillance of Americans’ private information does not respect our constitutional values and needs fundamental reform – not incidental changes. Unfortunately, the bill passed by the Senate Intelligence Committee does not go far enough to address the NSA’s overreaching domestic surveillance programs.”
He noted that he was working with Senators Patrick Leahy and Rand Paul, as well as Wyden, to push for “real reform.”
Wyden warned of Feinstein’s imminent effort to protect “business as usual” at a CATO Institute event in October. He told an audience the “government’s intelligence leadership, their allies in think tanks and academia, retired government officials and sympathetic legislators” would “try mightily to fog up the surveillance debate and convince the Congress and the public that the real problem here is not overly intrusive, constitutionally flawed domestic surveillance but sensationalistic media reporting.
“Their end game is ensuring that any surveillance reforms are only skin-deep,” Wyden also stated.
In this case, the reform is not even skin-deep. It is barely detectable. One would need to delude themselves in order to suggest that Feinstein’s bill deserves the label of “reform.”
But just as one might expect, the passage of Feinstein’s bill was reported as one of a number of legislative proposals that have been introduced to “reform” government surveillance. Editors gave her the benefit of the doubt, even though the content of her bill plainly demonstrates it would do no such thing.
Feinstein’s bill should be covered as an obstruction. It is a shrewd ploy to disrupt efforts by people like Wyden, Udall, and even Leahy, who at least seem openly interested in ending some of the US government’s mass surveillance practices.
Photo by David Lee used under Creative Commons license