Legislators Move against Mass Surveillance

Nearly two years after Edward Snowden’s sensational revelations about the scope of the National Security Agency’s mass surveillance programs targeting the communications of Americans, Congress has yet to pass legislation to end those programs. Two House lawmakers have just offered a bill to do just that.

Reps. Thomas Massie (R-Ky.) and Rep. Mark Pocan (D-Wis.) are the House sponsors of the Surveillance State Repeal Act, a bill which would not only end the mass surveillance laws currently on the books (the PATRIOT Act and the FISA Amendments Act), but also prevent the federal government from forcing tech companies to build NSA-exploitable flaws into smartphones, tablets, WiFi routers, and other devices. This so-called “back door” issue has become a major political controversy ever since FBI Director James Comey publicly criticized companies like Apple for building high-quality encryption into applications like iMessage. Privacy and security experts are in broad agreement that sound encryption is an essential privacy and online commerce tool, and the bill would prohibit the federal government from forcing companies to make products with defective encryption.

One of the most important public battles over the issue of security versus surveillance is about to begin.

The bill would dramatically strengthen whistleblower protections for federal intelligence agency employees and contractors. This portion of the bill was inspired by the searing experience of former NSA senior official Thomas Drake, who, a decade before Edward Snowden came on the scene, attempted to alert Congressional investigators and the Defense Department’s own inspector general of waste, fraud and abuse. Despite complying with all laws and regulations for reporting such abuse, Drake was wrongfully prosecuted by the Justice Department. The bill would make this kind of retaliation a firing offence.

The SSRA would also improve congressional oversight of surveillance activities by mandating Government Accountability Office compliance audits to ensure that previously collected data on Americans is destroyed unless an American is the subject of an ongoing federal investigation.

The bill has the support of groups from across the political spectrum–from the libertarian-leaning FreedomWorks and Campaign for Liberty to progressive groups like CREDO Action, Demand Progress, and the Bill of Rights Defense Committee.

In June 2014, portions of an earlier version of the SSRA were added as an amendment to the House version of the Fiscal Year 2015 Defense Department appropriations bill. The amendment, offered by Massie and Rep. Zoe Lofgren (D-Calif.) A), included a prohibition on searching the stored communications of Americans under Sec. 702 of the FISA Amendments Act, as well as a prohibition on government-mandated “back doors” in tech products. That amendment passed by a bipartisan, veto-override majority of 293–123, a victory made possible in part because of the announcement by FreedomWorks that it was scoring the amendment vote as a “key vote YES.” It was the first time that an electorally active interest group had weighed in on a vote over NSA mass surveillance and the threat it represents to basic Fourth Amendment protections. FreedomWorks’ support for a full repeal of the mass surveillance apparatus in place for nearly 14 years is a major political development.

In renewing the fight to reform America’s surveillance practices, Massie and Pocan have the clock on their side. Three existing provisions of the PATRIOT Act are due to expire on June 1st, and executive branch officials are once again fear mongering about the prospect, especially since Congress will adjourn on May 22 for a long Memorial Day recess that will run beyond the provisions’ expiration date. Civil liberties advocates argue that all three provisions should be allowed to expire, especially Sec. 215 of the PATRIOT Act, which was the source of the metadata mass surveillance program exposed by Snowden.

The pressure of that looming expiration date provides an opening for Massie, Pocan and other surveillance reformers to force real changes in surveillance law through Congress. In making the attempt, they will not only have to deal with reluctant colleagues in both chambers, but a U.S. intelligence community and federal law enforcement leadership that is even now still seeking to weaken basic internet security standards in the name of “national security”. One of the most important public battles over the issue of security versus surveillance is about to begin.

Patrick G. Eddington is policy analyst in Civil Liberties and Homeland Security at the CATO Institute, a libertarian think tank.