Proposed USA Freedom Act is insufficient — the American people don't want a 'step' towards the Constitution
The U.S. Second Circuit Court of Appeals has ruled that a NSA mass surveillance program collecting phone records in bulk is illegal. The ruling does not address the program's constitutionality, but deems it illegal as unauthorized under Section 215 of the Patriot Act. The government and FISA court had advanced a previously secret interpretation of Section 215 to engage in mass collection of the American people's phone records.
The ruling does not, however, order the program's immediate cessation. Instead, the Court directed that the future of Section 215 and the NSA's mass surveillance programs be in the hands of Congress. Section 215 is set to expire on June 1 of this year, and a bipartisan group of Senators has already put forward a bill (the USA Freedom Act) to end bulk collection of call records under Section 215. However, the bill does not end mass surveillance and the dragnet collection of telecommunications, which the NSA carries out under a series of laws and orders apart from Section 215.
The bill's sponsors are fighting Senate Majority Leader Mitch McConnell (R.-KY), who wants Section 215 to be extended, as is, for years to come. Unless we act now, a watered-down version of the USA Freedom Act is likely to pass.
This is a critical time for all those who are concerned about privacy, civil liberties and the Constitution. Fresh off the Second Circuit ruling, it is time for all of us to speak with one voice and say to Congress: End all mass surveillance programs and close down the unconstitutional FISA court!
The reforms of the USA Freedom Act have been greeted by some as a "step in the right direction," despite the bill's many weaknesses and loopholes — but the current practices of the NSA and other intelligence services are miles away from the U.S. Constitution. The people of this country need more than a step towards the Constitution. We need a government that adheres to it.
The court ruling shows that the NSA will continue to use every opportunity and conceivable legal interpretation to extend its surveillance powers and programs. We must remember that these programs were not even public knowledge until they were leaked by courageous whistleblower Ed Snowden, and that Under Secretary of Defense for Intelligence James Clapper had lied about their existence to Congress. The USA Freedom Act's blind spots and loopholes will easily be exploited by the NSA so as to only slightly modify, at best, the status quo.
The proposed bill does nothing about Executive Order 12333 or Section 702 of the FISA Amendments Act, which the NSA uses to conduct its PRISM program and the bulk collection of communications captured "abroad" (often by tapping the cables of companies like Yahoo, Google and Facebook). In fact, the bill increases the authority of the NSA to use Section 702 in certain circumstances.
While the bill supposedly appoints a "privacy advocate" to the secret proceedings of the FISA court, it leaves this to the court's discretion and it does not establish clear protocols about what this advocate will actually do. In reality, this is not a real "court" at all -- it will still lack transparency, public opinions, due process and a genuine adversarial process. There is no one standing up for the interests of the people in the FISA court.
The danger is that the status quo will really continue but with the illusion and celebration of "reform." The people of this country care little about what obscure section of a law or executive order is used to justify mass surveillance and the complete invasion of their privacy and constitutional liberties. They want it to stop.
What Congress needs to do is pass an affirmative rejection of all mass surveillance programs, overturning Section 215 of the Patriot Act, Section 702 of the FISA Amendments Act, and Executive Order 12333, while making clear that no secret legal interpretations may be used to justify these programs' continuation. It is not as complicated as it is made out to be. Section 215 should be allowed to simply expire, rather than trying to reform it.
Take action now to tell Congress to fulfill its constitutional obligations and end mass surveillance. The people have the momentum of the May 7 court victory, and that victory must not be manipulated into the passage of a half-reform.