The request came nine months after President Barack Obama promised an overhaul of the NSA spy program. Since his speech in January of 2014, the Obama administration continued pushing off the deadline three times, and failing to come up with a plan that would protect the private phone records of American citizens. The House and the Senate continue to struggle to produce anything that substantially protects citizen privacy from the snooping NSA.
The government delays gave the Justice Department an excuse to request the extension. The extension is only good until December 5th, when the FISA will need to reauthorize the NSA phone records program again.
In January, when president Obama made a major speech about the government’s spying efforts, he assured American citizens that the threat of a terrorist attack should never be used as an excuse to weaken civil liberties.
“…in our rush to respond to very real and novel threats, the risks of government overreach—the possibility that we lose some of our core liberties in pursuit of security—became more pronounced.” (1)
Obama then went on to promise that government reforms would give confidence back to the American people that their privacy rights would be protected.
“The reforms I’m proposing today should give the American people greater confidence that their rights are being protected, even as our intelligence and law-enforcement agencies maintain the tools they need to keep us safe.”(1)
The President immediately turned to Attorney General Eric Holder to modify the collection program so that it doesn’t retain the collected data from phone records. The deadline for the program reauthorization – March 28th – came and went, without any such reforms.
Government Fails to Protect Citizen Privacy
Finally, in May, the House voted by an overwhelming majority to significantly limit the NSA’s freedom to snoop on user data when it comes to the private phone records of American citizens. It was called the “USA Freedom Act”, and in its original form, it ensured transparency of NSA spying, reduced “backdoor” searches of Americans, and ensured civil liberties advocacy on the Foreign Intelligence Court. All of those measures were stripped before it was passed by the house.
Following the removal of those measures, Facebook and Google pulled their support of the Act, and many former supporters made it clear that the new version of the Act left the door open for continued abuse by the intelligence community. Republican Zoe Lofgren explained:
“Regrettably, we have learned that if we leave any ambiguity in the law, the intelligence agencies run a truck right through that ambiguity.” (2)
Leaders in the Senate voiced their own concern about the scaled back House Bill. Judiciary Committee Chairman Patrick Leahy promised to counter the scaled back House version with a beefed up Senate version.
The Senate version, introduced last year by Leahy and Jim Sensenbrenner, would literally end the act of collecting phone records in bulk, in order to obtain the records of individual foreign intelligence targets. The following are the changes in the Leahy version of the Act that were not present in the gutted House version:
– A complete end of bulk collection under Section 215 of the FISA Amendments Act, unless there is a suspicion of a “specific selection term” related to terrorism. The House version leaves this vague, but the Senate version requires it be related to an “individual, account, or personal device”.
– A special position would be created at the highly secretive FISA Court, whose job it would be to advocate for civil liberties and the privacy of American citizens.
While this bill would go a long way to protect the phone records of ordinary American civilians, it still leaves Internet privacy and innocent foreigners vulnerable.
Two Problems Remain
Even if Congress manages to pass these reforms before the FISA Court re-authorizes NSA phone surveillance again in December, there are two significant problems that remain in the FISA Amendments Act passed under President George W. Bush.
The first is Section 702, which the U.S. Government uses to justify an Internet surveillance effort that is overly wide in scope and affects nearly every American citizen. Then there is Executive Order 12333, which the NSA has used to justify extensive spying on foreigners, and even U.S. citizens living in other countries.
The fight is hardly over. The U.S. Intelligence community continues to fight for the ability to ignore the civil liberties and privacy rights of American citizens. A few lawmakers inside the GOP tried to scare supporters of the bill, by saying the recent rise in Middle East terrorism should make supporters reconsider their stance. (3)
Intelligence Committee Senators, back in June of this year, attacked the House bill, saying that it threatened national security. Senator Saxby Chambliss told the press that the bill is, “…fixing a lot of things that simply aren’t broken.”
Senator Jay Rockefeller pulled the “national security” card as well.
“It seems to me that we’re doing something unnecessary and unpredictable here, which might make the public feel better but which would not be good for national security…” (4)
The battle lines are drawn, and the fate of American civil liberties and the privacy of innocent citizens rests in the hands of the Senate. Whether Leahy’s Act passes will depend on whether the massive and powerful intelligence community is successful in intimidating and scaring those inside of the government who still have the best interests of the American people – and the Constitution – at heart.
If it fails, and if the Government surveillance is allowed to continue, it will move the country yet another step closer to a police state environment.