In a Thursday op-ed for Hays Post, Kansas Rep. Tim Huelskamp explained his reasoning for not voting for the USA Freedom Act, which cleared the House earlier in the day in a 303-121 vote.
“[The] bill presented on the House floor today does not address many of privacy and constitutional concerns expressed by Kansans over the warrantless bulk collection of Americans’ personal information,” wrote Huelskamp.
Huelskamp was an original sponsor to the bill. Originally meant to end the National Security Agency’s bulk collection of metadata from Americans’ phone records, the bill was initially heralded as the first serious attempt to bring balance to the way the nation handles electronic surveillance.
However, final hour negotiations with the White House effectively gutted key reforms from the bill. The reworking leaves large logistic loopholes which, in effect, afford the intelligence community the same data capture and storage capabilities it has today.
This highlights the two differing philosophies in the federal government today that have created a tug-of-war between personal liberties and state security. One side argues that the disclosures Edward Snowden’s whistleblowing made on the overreach of the intelligence community against the privacy of everyday Americans represents a public service and a call to protect the personal liberties of the American people. The other argues that there was nothing wrong with the intelligence community as it was, and that the Snowden disclosure sensationalized a needed component of the national security apparatus.
Huelskamp is not alone in his disdain for the USA Freedom Act, as it stands today.
“I’m disappointed that this popular bipartisan bill has been so drastically weakened,” said Rep. Mike Honda, a co-sponsor of the original bill.
“The bill has been watered down far, far down even from the compromise that was struck when the bill was voted out of committee,” said Patrick Toomey, a staff attorney in the American Civil Liberties Union’s National Security Project. “While it represents a slight improvement from the status quo, it isn’t the reform bill that Americans deserve.”
Among the perceived problems with the USA Freedom Act is that the renegotiated bill renews Section 215 of the Patriot Act until 2017, instead of allowing it to sunset in 2015. Section 215 permits the FBI to demand from any person or entity anything tangible, as long as the FBI “specif[ies]” that the order is “for an authorized investigation . . . to protect against international terrorism or clandestine intelligence activities.”
This provision has long been criticized, as it gives the FBI warrant power against U.S. citizens and permanent residents without the need to show probable cause or reasonable grounds that the target is engaged in criminal activity, or proof that the FBI suspects the target of being an agent of a foreign power. In practical terms, this means that the FBI could investigate who they want, when they want, and demand whatever they want to help with the investigation without the target having any form of recourse or defense. The target is also prohibited from disclosing that he or she was targeted. This reflects violations to the First Amendment’s protection of free speech, the Fourth Amendment’s guarantee against unreasonable search and seizure, and the Fifth Amendment’s guarantee of due process under the law.
“How could anyone vote for legislation that doesn’t uphold the constitutional standard of probable cause?” Rep. Rush Holt asked.
Another perceived problem lies in the way the renegotiated bill defines “selection terms” in regards to Foreign Intelligence Surveillance Court warrant requests. The bill will maintain that telephone records are to be held by the phone companies for 18 months, instead of collected en masse by the government. The government would also need to request permission to obtain telephone data from the utilities on a case-by-case basis, and the Foreign Intelligence Surveillance Court would be required to publish its most significant opinions.
However, under the renegotiated terms of the act, the government — under emergency conditions — can have access to telephone data for up to seven days before getting the court’s approval. Additionally, the original bill’s stipulations of “specific selection” search requests — which would limit warrants to single individuals or to small groups — have been broadened to “discrete term, such as a term specifically identifying a person, entity, account, address or device.” This, theoretically, could mean anything — from the name of an individual to an entire area code to half of the nation.
The original bill’s requirement that an independent public advocate be installed in the Foreign Intelligence Surveillance Court has also been stripped from the renegotiated bill.
Supporters of the renegotiated bill argue that it is far from perfect, but it is better than nothing. While the bill will protect many of the administration’s preferred surveillance tools, supporters argue that it will get rid of bulk phone record sweeps, which represents an improvement from the current status quo.
“The legislation passed today is a step forward in our efforts to reform the government’s surveillance authorities,” said Rep. Jim Sensenbrenner, the author of the bill and co-author of the Patriot Act. “It bans bulk collection, includes important privacy provisions, and sends a clear message to the NSA: We are watching you.”
In the Senate, the bill is heading to the Judiciary and Intelligence Committees for review. While Intelligence Committee Chair Dianne Feinstein has indicated she would be likely to go along with the House’s USA Freedom Act, Sen. Patrick Leahy, the chair of the Judiciary Committee, has stated that he is distressed by the removal of the independent public advocate provision in the House bill.