The House of Representatives recently passed a bill called the “USA FREEDOM Act” that purports to tackle mass surveillance—an issue that affects hundreds of millions of Americans. But the USA FREEDOM Act is not real reform. Instead of meaningfully restoring American civil liberties, it instead preserves bulk data collection and ultimately fails to end mass surveillance. Thankfully, the USA Freedom Act did not pass the Senate. If it had, it would have effectively solidified the NSA’s unconstitutional spying of Americans—again.
FCNL has historically opposed mass surveillance for its erosion of civil liberties under the guise of national security. This is why we are lobbying to let key provisions of the PATRIOT Act expire on June 1, and we are opposing the USA Freedom Act, which would simply replace the PATRIOT Act with more watered-down bulk collection policies.
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Instead, we are lobbying in favor of the Surveillance State Repeal Act (H.R. 1466). Introduced by Reps. Mark Pocan and Thomas Massie, FCNL believes this bipartisan legislation is right approach that’s needed to dismantle the mass surveillance infrastructure that has become part of the “war on terror” era. While the House-passed USA Freedom Act would only make small adjustments to one portion of the Patriot Act and preserve bulk collection, the Surveillance State Repeal Act (SSRA) would address every piece of authority that the federal government relies on to conduct mass surveillance.
Here are five essential reforms found only in SSRA:
1) On the Patriot Act
This enormously complex legislation passed immediately in the wake of September 11, 2001 granted the U.S. government broad surveillance authorities that did not actually improve security. In fact, by exponentially increasing the amount of data collected, the practices resulting from the Patriot Act in fact made it more difficult for intelligence officials to piece together pertinent information. Many believe that the U.S. government has interpreted its authority under the Patriot Act illegally, and recently the Second Circuit Court of Appeals agreed by ruling NSA’s mass surveillance unconstitutional.
SSRA is the only bill that entirely repeals the PATRIOT Act, and does not replace it with similar policies.
2) On Executive Order 12333
Issued by President Ronald Reagan in 1981, EO 12333 authorizes the collection of the content of communication from Americans. While Americans cannot be individually targeted without a court order, if communication is “incidentally collected,” this executive order permits the data to be saved. Widely considered to be a massive legal loophole today, this executive order allows Americans’ communications even if they are not suspected of wrongdoing or the subject of an investigation. Reports indicate that these ordinary individuals “incidentally” spied on—Americans and non-Americans—far outnumber foreign nationals that the NSA purposefully targets for surveillance. EO 12333 has never been subject to meaningful debate or oversight from Congress or court.
SSRA would ban the use of Executive Order 12333 to conduct warrantless surveillance of Americans.
3) On the FISA Amendments Act
The Foreign Intelligence Surveillance Act (FISA) was introduced in 1978 in response to investigations revealing that President Nixon had repeatedly used federal resources to spy on American activists. The FISA procedures still required warrants to spy on Americans, but in 2008 and again in 2012 Congress passed the FISA Amendments Act (FAA), broadening the authority and allowing warrantless wiretapping.
Under FAA’s large scope, the U.S. government has the authority to gather intelligence through the monitoring of Americans’ international emails, phone calls, and text messages. But the enormous scope of this authority and its implementation by the NSA has allowed massive over-collection to occur, including purely domestic calls and emails, and “incidental” collection of Americans’ communications without a warrant. In order to collect data, the U.S. government need only cite foreign intelligence as its “significant purpose,” and need only “reasonably believe” that an individual is outside of the United States. While the U.S. intelligence officials repeatedly insisted that Americans were not the subject of these investigations, leaked files demonstrate this is not the case.
SSRA would essentially repeal the FISA Amendments Act and return to the constitutional standard of probable cause-based warrants for the collection of American communications.
4) On Whistleblowers
As seen in events with surrounding former NSA contractor Edward Snowden, national security or intelligence officials lack any real protections for reporting wrongdoing. After choosing to reveal important information describing government misconduct, such individuals are often subject to harsh retaliation or severe prosecution and punishment. Even by communicating such information to important stakeholders such as members of Congress on intelligence committees, whistleblowers take enormous risks.
SSRA would encourage more transparency in the intelligence system by putting in place strong whistleblower protections.
5) On Electronic “Backdoors”
Currently, the U.S. government mandates that private companies and manufacturers build “backdoors” into their encryptions, allowing for the government’s easy surveillance access. There is a lot of momentum to shut down this practice, and close the backdoors. Last year, Reps. Thomas Massie and Zoe Lofgren introduced an amendment to the large defense appropriations bill that made it illegal for the U.S. government to make such demands of private companies. The amendment passed overwhelmingly in the House of Representatives by a vote of 293-123, but unfortunately was stripped out of the final appropriations package.
SSRA would permanently close these backdoors and prevent the U.S. government from bypassing encryptions and electronic privacy protections.
What is FCNL doing?
FCNL is lobbying to ensure that legislators vote NO on the reauthorization of the PATRIOT Act or its replacement with the USA Freedom Act. Instead, FCNL is urging members of Congress to push for a real end to mass surveillance through the Surveillance State Repeal Act.
To see a letter that FCNL signed onto, urging for an end to mass surveillance, click here.
What can I do?
Click here to contact your legislators and urge them to oppose any attempts to reauthorize the PATRIOT Act or replace it with weak pseudo-reforms. FCNL urges you to ask your member to co-sponsor the Surveillance State Repeal Act (SSRA).
