Dianne Feinstein's Fake Surveillance Reform Bill

This was originally posted on The Guardian.

Members of Congress have introduced almost 30 separate bills to rein in NSA spying, increase transparency, or rework the secret court process that has sanctioned these programs. Two pieces of legislation, however, have momentum, and they couldn't be more different.

The Senate Select Committee on Intelligence – the body charged with oversight of these very programs – advanced legislation introduced by its chair, Senator Dianne Feinstein (Democrat from California), last week that would entrench the current spying programs and give them explicit Congressional authorization to continue.

The legislation would make clear in no uncertain terms that communication records like phone, email, and internet data can be collected without even an ounce of suspicion, pursuant to the so-called privacy rules already in place. Being silent on other types of data like location information or financial records, it passively condones their collection too, but without even the benefit of the paltry protections in place now. For the first time in history, Congress would explicitly and intentionally authorize dragnet domestic spying programs targeting every day Americans.

The Feinstein bill also makes the current situation even worse. It gives the government a 72-hour grace period to warrantlessly spy on foreigners who enter the US, without even the attorney general approval that is currently required in emergency situations. It explicitly states that none of its provisions should be read to prevent law enforcement from digging through massive NSA databases for evidence of criminal activity. By doing so, it authorizes that specific practice in a roundabout way. Finally, it sets up the prospect of all members of Congress accessing important court orders and other information, but then undercuts this requirement by endorsing current rules and practices that have been used to prevent members of the House from reading foundational documents that could inform the votes they must make on whether to continue these programs.

The counterproposal is called the USA Freedom Act. Introduced by Rep James Sensenbrenner (a Wisconsin Republican) and Senator Patrick Leahy (a Vermont Democrat) of the powerful House and Senate Judiciary Committees, the bill has already picked up over 100 bipartisan members of Congress as cosponsors. Unlike Sen. Feinstein's bill, the USA Freedom Act would start to rein in the NSA's dragnet surveillance programs by banning the suspicionless collection of Americans' phone calls. It would also amend the Patriot Act so that it could not be used for bulk collection of other forms of communications data under other abused authorities, like national security letters and pen registers.

The USA Freedom Act would also narrow collection of data under the FISA Amendments Act of 2008 and require court approval before the government could search the rich data troves collected under that law for US persons. It would direct the administration to find a way to release the secret court opinions underpinning these programs, as well as provide for a privacy advocate who could advise the surveillance court.

The bill fixes the draconian and unconstitutional gag orders that come with surveillance court orders, so the companies that receive them can provide basic information to their customers and the public. In total, the bill starts to chip away at the indiscriminate surveillance state and redirect the government towards surveillance focused on suspected terrorists – and not the rest of us.

No matter how you cut it, the Feinstein bill is a big step backwards for privacy, and the USA Freedom Act is an incredibly important step forward. To be clear, Congress will not be choosing between two reform proposals that differ only in degree. It will be choosing, instead, between one bill that allows the government to engage in indiscriminate surveillance of its citizens and another that subjects government surveillance to the common-sense limits that are required by the Constitution and fundamental in any democratic society. If you think the government's actions are beyond the pale now, wait until you see what it does with something like the Feinstein bill and a congressional stamp of approval for its past overreach.

Americans have the right to be left alone unless suspected of wrongdoing. Rep Sensenbrenner and Senator Leahy understand this simple and revered American ideal; Senator Feinstein does not. There's only one way forward that will protect privacy: the USA Freedom Act, and Congress needs to act on it immediately.

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MoT

Whenever I hear some government apparatchik babble about some "court" this or that, and having some sort of oversight, I'm reminded that the current evil joke was likewise engineered to do the same thing. So what stopped them? Answer: nothing! You'd be a fool to believe otherwise.

Anonymous

Diane Feinstein needs to go back to school for a refresher course in the Constitution and the Bill of Rights. It is one thing to argue what the Founders thought about the 2nd Amendment, with it's convoluted verbiage and history. It is a whole different thing when discussing the 4th Amendment, which clearly states our rights regarding the privacy of our papers,etc.

Virtually every restriction, every violation of the Constitution, contained in the Patriot Act was rejected by Congress at least once, as a violation of our rights. It took 9/11 and repackaging into one bill, the Patriot Act, that was then passed hastily, without debate, in a late night vote.

One would think, and hope, that events such as the release of information obtained by wire tapping elected officials re: Governor Spitzer, which ended with his stepping down, would have reminded Congress that they are not protected by their office. (Not to change the subject but did the FBI ever say why they were wire tapping the Governor of New York? Were any terrorists stopped from acting? Identified?)

Not one single provision of the Patriot Act would have provided advance warning, had it been in place at the time of 9/11, that we didn't already have on September 11, 2001. Any reasonable person would and should expect security legislation following 9/11 to be recognizable as a tool that would have prevented 9/11. That is a minimal standard for government intrusion on citizens' rights that the Patriot Act cannot meet.

Anonymous

This isn't freedom. Tar, feathers and JAIL TIME? for the ones violating their oath to the constitution. My grandfather was shot twice in ww2 defending our country and the constitution (BILL OF RIGHTS) included. The government is destroying what people have fought died and been severly injured for. Makes me sick.

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