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What Crack Cocaine Teaches Us About NSA Reform

NSA Building
NSA Building
Laura W. Murphy,
Director, ACLU Washington Legislative Office
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July 31, 2014

This piece originally ran at POLITICO Magazine.

This week, Patrick Leahy, the Democratic senator from Vermont, introduced a revised version of the USA Freedom Act, a bill to finally start pulling the reins on America’s out-of-control surveillance state. The ACLU supports the measure, though it is not a perfect bill. To understand why, it helps to think about something seemingly unrelated: crack cocaine.

During the first term of President Ronald Reagan’s administration, hysteria over the crack “epidemic” led Congress to enact strict sentencing laws that punished crack offenses much more severely than powder cocaine—at a 100 to 1 ratio. Two pennies worth of crack would land you as much jail time as half a kilo of powder.

The ACLU thought that was wrong, and so started fighting that fight in the early 1980s. It took us more than two decades, but in 2010 we finally had a compromise reform bill on the floor that actually stood a shot at passage. Unfortunately, it didn’t eliminate the disparity altogether, but only reduced the ratio to 18 to 1.

Reform advocates were at a crossroads. Maximalists urged opposition despite the fact the bill would, in a very real way, make life better for thousands of people and begin to reduce the severe racial and ethnic inequality in our prison system. Pragmatists, fearing that opposition to the bill would preclude any reform at all, urged support.

It was a painful compromise, but the ACLU ultimately supported the bill. It passed, astoundingly, with overwhelming support in both chambers.

And then something amazing happened. Conservative lawmakers, concerned about government waste, increasingly came to the table to support criminal justice reform. Liberals realized they could vote their conscience on criminal justice without accusations of being “soft on crime.” It has not been easy and there have been many steps backward, but in recent years, we’ve seen greater public opposition to mandatory minimum sentences and real movement on things like reducing penalties for low-level drug offenses.

Which brings us to the USA Freedom Act. It’s not a perfect bill. As with virtually any law, there are ambiguities in the text, which, in this case, could be read abusively to allow the collection of a large amount of sensitive information on many innocents.

But it is a vast improvement on the legislation that passed the House in May, which was weakened at the last minute, leading many privacy advocates and technology companies to pull their support. Leahy’s bill would reduce the overall amount of private information being collected by the National Security Agency and other government agencies, which would, much like the Fair Sentencing Act, pay real privacy dividends for real people.

Passing the USA Freedom Act would also present a clear inflection point in the surveillance debate. For almost 20 years, going back even before the Patriot Act to a 1996 law passed in the wake of the Oklahoma City bombing, the freight train has resolutely barreled toward unchecked surveillance authority. Here, the proponents of surveillance reform who pulled support can take a lot of credit for the progress made in the Senate, which will give them real leverage in the next fight.

In Washington, progress begets progress. It’s exceedingly rare that a maximalist strategy on any issue—from reproductive freedom and LGBT rights to immigration reform and pay equity—succeeds in creating immediate, dramatic change. To give just one example, the Civil Rights Act of 1964, often and rightly seen as the watershed in the movement, wouldn’t have passed Congress without the groundwork laid by the weaker civil rights acts of 1957 and 1960.

That said, as with all of these examples, it’s crucial not to rest on any laurels. Not only should Congress pass the USA Freedom Act, but much more needs to be done to address the erosion of checks and balances on government surveillance and other national security authorities.

Specifically, Congress must next tackle the NSA’s use of Section 702 of the Foreign Intelligence Surveillance Act to scoop up vast quantities of emails, phone calls, text messages and other international communications of individuals suspected of no wrongdoing, and then search them without a warrant. Congress and the president must also reform Executive Order 12333, the Reagan-era measure that governs the collection of intelligence overseas. As some have argued, the significant power claimed under 12333 may be an even greater threat to America’s democratic institutions than the programs we’ve learned about in the past year.

Despite many more battles to be fought on surveillance reform, we must seize the opportunity before us. Since the tragic events of Sept. 11, 2001, the NSA’s exponential surveillance buildup seemed like something huge and seemingly unstoppable—driven resolutely forward by fear, congressional and executive branch support, unlimited funding, voter inertia and the shroud of secrecy. But right now Congress has powerful legislation that can chart us on a new course. The oft-heard saying “a journey of a thousand miles begins with a single step” applies here. That first step begins with Congress passing the USA Freedom Act.

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