In the United States, there’s a simple trick to passing legislation that egregiously violates people’s civil rights: give it a really nice-sounding name. We did it in 2001 with the PATRIOT Act, the bill that paved the way for the N.S.A. to engage in mass surveillance of online communications, and now we’re doing it again in 2015 with the USA Freedom Act, a bill that claims to reign the N.S.A. back in and end their bulk collection practices.
“Today, you will read all kinds of stories and tweets about how USA Freedom Act ends ‘bulk collection.’ It doesn’t.”
Rep. Justin Amash (R-Mich.) tweeted that shortly after USA Freedom passed the House by a landslide, and his words could not better sum up a situation where the public and news media are being misled by U.S. lawmakers.
The USA Freedom Act is being hyped as a prohibition of the N.S.A.’s controversial mass surveillance practices, but it actually extends the PATRIOT Act for years and opens up new avenues for more invasive forms of government spying. Its passage into law would be more damaging to civil rights than if Congress did nothing at all. To understand why, it’s important to note that the N.S.A.’s practices were never lawful to begin with.
Indeed, the Second Circuit Court of Appeals ruled last week that the N.S.A.’s phone metadata surveillance program was never actually authorized by Congress. In a lawsuit with the American Civil Liberties Union, the N.S.A. sought to justify its dragnet surveillance practices by pointing to Section 215 of the PATRIOT Act, which allows the government to collect records “relevant to an authorized investigation.” But the court (and even Rep. Jim Sensenbrenner, the PATRIOT Act’s original author) rejected this argument, saying the law was never meant to authorize such wide-scale data collection.
All of this should be a moot point, because Section 215 of the PATRIOT Act is set to expire on June 1 if Congress does nothing. But USA Freedom would extend this provision until 2019, and, crucially, it would tweak the language to allow the N.S.A.’s mass surveillance programs to continue, with only minor limitations.
On the surface, much of what’s in USA Freedom sounds good: a new public advocate for the F.I.S.C. court would increase surveillance transparency, and new restrictions on bulk data collection would seem to reign-in the N.S.A. Unfortunately, these restrictions are negated by a host of new privacy problems and loopholes.
The bill expands the type of data the government access from landline call data to VoIP calls, video chats and smartphone activity. The government will still be able to use broad search terms to target large portions of the population, and they can collect even more information from contacts “connected” to those targets. Companies that hand customer data over to the government will be rewarded with blanket immunity from lawsuits, even when they violate their own privacy agreements with customers. The N.S.A. will share information with the F.B.I., which can then use the information for investigations unrelated to counterterrorism. And the government can block the F.I.S.C. advocate from seeing anything they want to keep secret.
Follow the money and you’ll find that the members of the House who support the USA Freedom Act are disproportionately supported by campaign contributions from companies that profit from mass surveillance. The members of the House who voted for USA Freedom received, on average, more than twice as much money from the defense industry during the most recent election cycle than did the members who voted against it.
Defense contractors, including companies like Lockheed Martin, Booz Allen Hamilton, and Northrop Grumman, account for 70 percent of the N.S.A.’s budget. These companies have a financial interest in making sure Congress does not limit the government’s ability to collect and analyze massive amounts of communications data. Perhaps that’s why the Intelligence Community supports the USA Freedom Act.
What Congress says and what Congress does are two very different things. The USA Freedom Act is a perfect example — it took a stunning act of bipartisanship for so many lawmakers in the House to say that N.S.A. surveillance went too far. But what they did is pass a bill that would do little to change the status quo, while skillfully packaging it as a victory for American privacy. The U.S. public and news media should not be fooled so easily.
Lyon is CTO of Fight for the Future, a nonprofit organization advocating for using the Internet for good purposes. Shaw is a campaign researcher at FFTF.