Why the SSRA (HR 1466) is the only plausible surveillance reform

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Recent reports suggest that Congress is turning its attention towards meager surveillance reform proposals that – despite the apparent confusion of congressional aides — would enable mass spying / bulk collection to continue.

In the face of such premature compromises, here are a few reasons why Congress should refuse to accommodate the self-serving demands of intelligence agencies like the NSA and FBI, and instead insist on enforcing a constitutional standard embodied in HR 1466, the Surveillance State Repeal Act.

  1. Secrecy:
    • Congress continues to legislate in the dark, lacking the full facts about the surveillance dragnet after relying on agencies whose leaders have repeatedly lied under oath.
    • Even the authors of the Patriot Act have reiterated public outrage at discovering from whistleblowers how the agencies have misled Congress about the mere scope of domestic surveillance, let alone its utility (which was been affirmatively rejected by multiple independent panels) or compliance with statutory and constitutional limits (all of which the programs continue to violate).
  2. Security:
    • The 9/11 Commission said that the intelligence failures enabling the attacks were not failures of collection, but rather failures of information analysis & sharing. Yet the 2001 PATRIOT Act and 2008 FISA amendments expanded domestic surveillance collection while leaving in place the real failures (eg overclassification) found to have enabled the attacks
    • The president’s own review board, as well as the Privacy & Civil Liberties Oversight Board, have found that dragnet surveillance have not actually proven helpful in protecting national security. Even the one case cited by the NSA to demonstrate the efficacy of the dragnet (the Moalin case in San Diego) is a sham based on mistranslation and prosecutorial opportunism. Put simply, the defendants in that case were opposed to the terror group they were ultimately prosecuted for supporting.
  3. Constitutionality
    • Congress has a crucial role to play in enforcing constitutional limits, especially given the courts’ self-marginalization and abdication of their role.
    • The Fourth Amendment requires a basis for individual suspicion in order to justify state scrutiny. Word games over what constitutes a search (versus mere “collection”) are semantic games played by the agencies to contrive a legal basis for mass surveillance that does not exist.
    • The agencies cite Smith vs. Maryland for the proposition that collecting metadata does not constitute a search for Fourth Amendment purposes, but the case is distinguishable and does not support that proposition
      • Smith was about (a) an individual (b) targeted over a discrete period of time (c) on the basis of suspicion that they were involved in a crime
      • The NSA dragnet effectively searches (a) all Americans, (b) all the time, (c) without any basis of individualized suspicion
    • The separation of powers, alongside the First and Fourth Amendments, aim to protect freedom of thought
      • Abuses are inevitable under any secret, unaccountable surveillance apparatus lacking effective internal controls (eg LoveInt)
  4. Politics: a wide swath of America supports meaningful reform to restore privacy. This is not a left vs. right issue, but rather one pitting the American people against Washington
    • members of Congress from both the progressive left – like Pocan (WI), Lee (CA), and McGovern (MA) – and the libertarian right – like Massie (KY) and Jones (NC)
    • The NY Times editorial board
    • Groups on the right: R Street, Campaign for Liberty, Cato Institute, FreedomWorks, National Association for Gun Rights
    • Groups on the left: Credo action, Demand Progress, Avaaz, Progressive Change Campaign Committee, Roots Action, Fight for the Future
    • Transpartisan groups: BORDC, Restore the Fourth, Sunlight Foundation