So we already wrote about how the House completely watered down the USA Freedom Act to the point that it really does very little, leading basically all of the civil liberties community to withdraw their support for the bill. If you want to know a little more about the politics at play, I highly recommend Jennifer Granick’s explanation, in which she notes the unfortunate reality: this bill no longer ends bulk surveillance at all — and, in fact, appears to authorize some things that were previously considered questionable, such as the NSA’s ability to do “about” searches, rather than just “to” and “from” searches (i.e., rather than just looking for emails from or to a certain person, they want access to emails about that person too).
You may have noticed that while all of the various civil liberties groups have pulled their support — they have not urged lawmakers to vote against this bill. While there is some fairly contentious debates going on over whether or not some of these groups should go that far, they’ve basically been painted into a corner. As Granick notes, if the USA Freedom Act doesn’t pass, something even worse is likely to happen:
Reformers are still reluctant to openly oppose USA Freedom. That’s partially because of the specter of the House Intelligence Committee bill, the FISA Transparency and Modernization Act, which would expand surveillance under the mantle of reform. Privacy groups seem whipsawed between the pale appearance of surveillance reform that is USA Freedom and the actual surveillance expansion that is the Intel bill.
In other words, Reps. Mike Rogers and Dutch Ruppersberger, along with the White House, may have played a game of chess here. They presented their bill, which clearly would make things worse by expanding the NSA’s powers, and used it as a sort of backstop. If a bad USA Freedom Act fails, they’ll try to push their even worse bill through, and much of Congress could just run home to tell angry constituents that they “fixed” the NSA surveillance issue when they really made it worse. They more or less set it up so that people have to accept the lesser of two evils. But neither will do anything to fix the actual problems of the NSA’s overly broad surveillance.
You can almost hear Ruppersberger laughing as he basically laughs off any concern for civil liberties groups, whose importance he couldn’t care less about. Remember, the NSA is headquartered in his district:
Rep. Dutch Ruppersberger (Md.), the top Democrat on the Intelligence Committee, seemed unconcerned that the privacy activists’ complaints about the changes could lead to a revolt on the House floor. “This is the way Congress is supposed to work,” he said. “Republicans and Democrats, liberals, conservatives, moderates coming together and finding a way to do things that are right for America.”
But of course, this isn’t all of those groups “coming together” or “finding a way to do things that are right.” It’s the opposite. The original bill, the one that actually fixed many of the problems had tremendous support in Congress. Enough to pass. It was (1) Congressional leadership who first watered it down, followed by (2) the House Intelligence Committee undermining the already watered down agreement (which was agreed to unanimously by both Judiciary and Intelligence committees) with demands to further water it down and (3) the White House putting even more pressure on the House to change the bill even though it already had so much support.
So, rather than all these groups coming together, it’s the opposite. They came together, and were then undermined — and the White House is now happy about this. While it had remained silent on these bills for months, it has suddenly come out in favor of the USA Freedom Act, which was weakened down in large part due to pressure from within the White House itself, which never wanted real surveillance reform in the first place.
The whole thing is fairly typical backroom political wheeling and dealing where it’s the public that gets screwed. Even the tech industry, who has been fairly quiet on the bills has finally woken up to the fact that this bill does nothing to end bulk surveillance. Google, Facebook, Twitter, Linkedin, Dropbox, Microsoft and AOL all pulled their own support of the bill, but it’s not going to matter. Chances are the bill is going to pass.
Folks who are actual supporters of civil liberties are quite reasonably angry about all of this. Rep. Zoe Lofgren took to the floor of the House yesterday to decry the situation, highlighting the sheer insanity of the fact that a bill that is supposedly about increased transparency concerning surveillance was changed in secret away from what was unanimously approved by the House Judiciary Committee (and the House Intelligence Committee), to create something that was less transparent.
Perhaps it’s not so ironic that a bill about transparency would be stripped of the transparency features in a non-transparent process. Rep. Justin Amash has noted that he’s “troubled” by what’s become of the bill — and that “Americans expect Congress to protect their basic rights.” Unfortunately, at this point, he may be overestimating what Americans have come to expect of Congress. We may want them to protect our basic rights, but we’ve increasingly learned not to expect it. In fact, we’re increasingly being taught to expect the exact opposite.
If Congress wants to actually change that impression, and show that it actually wants to “do the right thing” or “protect the basic rights” of the public, it should reject this bill and go back to the drawing board (or even back to the original USA Freedom Act).
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