Bipartisan Group Led By Wyden And Udall Introduce Legislation Aimed At Comprehensive Reform Of Surveillance Programs
from the a-better-balancing-of-security-and-liberty dept
Ron Wyden, Mark Udall, Richard Blumenthal and Rand Paul held a press conference today to discuss proposed legislation for reforming the NSA’s surveillance programs. The bipartisan group assembled here is looking for actual reform, rather than the light touch-ups that have made up the majority of the administration’s contributions to the national security discussion.
Their proposal breaks down roughly into five key points (hat tip tothe ACLU’s Michelle Richardson for tweeting updates during this press conference).
The first proposal is to eliminate the Section 215 bulk records collections. As Wyden points out, no evidence exists that this data collection has led to the prevention of any terrorist attacks. Blumenthal adds to this point later in the press conference by referring to the oft-quoted “54 attacks prevented” statement as “bogus.” Wyden also points out that the email records collection was already shut down (in 2011) for exactly this reason: no proven effectiveness. Wyden states that, with this bill, the dragnet collection of law-abiding citizens’ information will be “outlawed.”
Second, the bill will close the backdoor search loophole in the FISA Amendments Act that allows intelligence agencies to rifle through the communications of millions of Americans without a warrant. Originally, this was intended to search only foreign communications but that loophole (which had been closed in 2008) was reopened by a secret rule change in 2011. This would simply fix what should never have been there in the first place.
Third, Blumenthal’s FISA Court Reform bill would be folded in, which would provide for a special advocate to act as an adversarial party in FISA court deliberations. As is pointed out later, this addition wouldn’t unnecessarily burden the court. The advocate wouldn’t be present for every warrant authorization but would sit in whenever major policy questions are being discussed in order to present the privacy and civil liberties side of the issue.
Fourth, the bill adds in Rand Paul’s fix for the ongoing “standing” problem. As the system is set up now, it is extremely difficult to be granted standing to sue the government for civil liberties violations because of the secrecy surrounding the programs (although Snowden’s leaks have greased the wheels a bit). Up until very recently, the courts have stated that if you can’t prove the government is surveilling you, then you can’t sue them for surveilling you. And since the government is in no hurry to hand out the data it’s collected on American citizens, it’s nearly impossible to obtain that proof. This would expand the ability of Americans to pursue the government in court for any ill effects suffered as a result of the government’s surveillance activities.
This won’t completely dismantle the NSA’s programs but it will greatly reduce its domestic intelligence gathering. As Udall points out later in the conference, intelligence agencies will still be able to target terrorists and spies — they just won’t be able to sweep up non-targeted bulk collections of data on American citizens — and they’ll have to do better than simply claim the data might be “relevant.”
As is now the new “normal,” the backers of this bill are drawn from both parties. The NSA’s overreach has managed to unite parties in a way the administration has been unable to do for nearly five years. As Wyden states, the narrow defeat of the NSA-defunding amendment proposed by Justin Amash was a “wakeup call” that demonstrated that many representatives were willing to cross party lines to protect civil liberties. That, in and of itself, is promising. But taking the first step as a bipartisan group should allow the bill’s backers to draw support from both sides of the aisle, something that will greatly increase the chances of its success.