Commentary

Surveillance Reform Wars Continue

The annual Intelligence Authorization bill has become the latest battleground in the ongoing Surveillance Reform War.

The bill’s inclusion of language that would bar the relatively independent Privacy and Civil Liberties Oversight Board from investigating the links between the NSA’s surveillance programs and covert actions prompted a barrage of amendments to the bill. While originally scheduled to meet Wednesday afternoon to decide on whether to approve any of the amendments submitted, the GOP majority abruptly cancelled the Rules Committee meeting, possibly partly in response to the controversy over the attempt to limit the PCLOB’s oversight activities.

Another flashpoint is the attempt by Rep. Thomas Massie (R-Ky.) and Rep. Zoe Lofgren (D-Calif.) to reprise their success last year in moving through the House a provision that would prevent the government from conducting warrantless searches of American’s stored communications under Sec. 702 of the FISA Amendments Act. That same amendment would bar the government from mandating that American tech companies build in encryption back doors. A version was successfully attached to the Fiscal Year 2016 Defense Department appropriations bill yesterday by a vote of 255 to 174, but the Intel Auth version would make the provisions permanent.

The annual Intelligence Authorization bill has become the latest battleground in the ongoing Surveillance Reform War.

The battle over Massie’s Intelligence Authorization bill amendment within the GOP conference has become heated, with House Intelligence Committee staff circulating talking points claiming that “The Massie amendment would seriously damage national security and provide little benefit to Americans’ civil liberties.”

Left out of the GOP HPSCI memo is the fact that no less a figure than Director of National Intelligence James Clapper admitted that Sec. 702 had in fact been used to conduct warrantless searches of the stored communications of Americans—in violation of the Fourth Amendment’s probable cause, warrant-based requirement.

House surveillance hawks have been on the losing end of several recent legislative fights, including the passage of the USA Freedom Act and a Massie-led amendment to the annual Justice Department funding bill prohibiting the use of government funds to undermine encryption standards. But the USA Freedom Act’s changes to surveillance law were limited to the illegal telephone metadata program, which the government is seeking to restart—and any appropriations-related reforms may not survive the legislative process.

The situation in the Senate remains decidedly less favorable to surveillance reform advocates.

In a surprise move, Senate Majority Leader Mitch McConnell (R-Ky.) elected to attach a highly controversial cyber security bill to the annual National Defense Authorization Act. The so-called Cybersecurity Information Sharing Act is opposed by dozens of groups, who blasted the bill in a March 2015 letter. McConnell’s gambit failed last week when the amendment was derailed by a procedural vote, his second defeat in as many weeks in his attempt to expand the government’s surveillance authorities.

Whether surveillance reformers will be able to consolidate their House gains remains to be seen. One thing does seem certain. The Surveillance Wars are far from over.

Patrick G. Eddington is a policy analyst in Homeland Security and Civil Liberties at the Cato Institute, and an assistant professor in the Security Studies Program at Georgetown University.