Reauthorization of the USA Freedom Act returns to the House later this month after the Senate approved tweaks to the bill. The needed adjustments happened last week following a fight between civil libertarians and proponents of mass surveillance over amendments.
Civil libertarians came ‘this close’ to winning outright on their amendments with a proposal by Utah Republican Senator Mike Lee and Vermont Democrat Senator Patrick Leahy passing with 77(!) votes. Montana Republican Steve Daines and Oregon Democrat Ron Wyden’s amendment failed by one vote due to pro-reform senators (including Bernie Sanders) failing to show up (more on that amendment later). Another amendment proposed by Kentucky Republican Rand Paul, forcing the government to get a traditional warrant, failed to receive even a dozen votes.
The Lee-Leahy amendment makes slight changes to the FREEDOM Act but allows more oversight on FISA issues through the use of outside advisers. The amendment requires the advisers to possess privacy and civil liberties expertise before helping judges review a request. Judges still have the final say but civil libertarian groups praised the amendment for bringing in more due process to FISA cases.
“By increasing the use of the amici curiae and broadening their access to information, Americans targeted under FISA will more often have someone advocating for their rights during these secret proceedings, and the likelihood is greatly decreased that intelligence agencies can abuse their surveillance power and get away with it,” FreedomWorks Vice President of Legislative Affairs Jason Pye stated after the vote even though he admitted the reforms were modest. “Had the protections established by Lee-Leahy been in place in years past, it is probable that both the FBI’s misconduct in spying on the Trump campaign and the dragnet mass metadata surveillance orders revealed by Eric Snowden would have been caught and subjected to scrutiny.”
The ACLU backed the reforms as well although it neglected to mention any Trump campaign spying by name.
“After many years of just rubberstamping laws used to commit civil liberties violations, Congress has overwhelmingly passed changes that will help ensure that government claims before a secret intelligence court do not go unchecked,” ACLU Senior Legislative Counsel Neema Singh Guliani crowded before prodding the House to address surveillance abuses from recent years by protecting online privacy. “[Wednesday’s vote] shows that a majority of senators agree that what we do online should not be subject to warrantless surveillance — and it’s past time for Congress to make this clear in our laws.”
Concern remains regarding the failure of the Wyden-Daines Amendment, specifically because a single vote was needed to add it to the bill. The amendment is rather simple: it bans warrantless searches of Internet browsing data and Internet search history through the Patriot Act. Politicians supported the measure in a myriad of partisan rhetoric either blasting or defending the president. The bloviating still came down to one simple issue: enforcing due process by limiting unconstitutional power.
And it failed by one bloody vote!
“The USA FREEDOM Reauthorization Act could have been significantly improved by the inclusion of a bipartisan amendment from Senators Wyden and Daines that would have protected Americans’ private internet histories from warrantless government surveillance…” Due Process Institute President Shana-Tara O’Toole said in a statement and also opined the passed version is better than the one currently on the books. “We are encouraged that Senate leaders crossed their respective political aisles to work together on important reforms that begin to better protect constitutional rights and still allow our government to do the important work of maintaining national security. We urge the House to promptly pass this legislation to ensure that America’s surveillance laws are brought more in line with vital protections guaranteed in our Constitution.”
A small victory, but still a victory, regarding Fourth Amendment protections against secret courts and warrantless spying. It’s likely the amendment bill succeeds in the House although it would be nice if the Wyden-Daines amendment somehow gets added. The Senate would weigh in again on any further amendments before it heads to the President’s desk.
We’ll find out in late May, it seems, on the House’s move.