Monday, March 9, 2020

Will We See Real Surveillance Reform This Week?

By Scott Shackford - March 09, 2020 at 03:20PM

By the end of the week, Congress is supposed to decide whether it will renew some federal surveillance regulations, reform them, or let them expire. Many legislators would probably prefer either to kick the can down the road with another temporary renewal or to pass a modest set of reforms. But several members of Congress are opposed to ketting the status quo continue—enough members, in fact, that we may well see reductions in the feds' power to secretly collect data about Americans without our knowledge, as well as more oversight over the secretive Foreign Intelligence Surveillance Act (FISA) Court.

The USA Freedom Act expires on Sunday. Passed after Edward Snowden exposed the ways the National Security Agency (NSA) was secretly collecting telephone and internet metadata of millions of Americans, the act both retroactively authorized the data collection and added some stricter rules to the process. Privacy and civil rights–focused lawmakers and activists have been trying since then to rein in domestic surveillance even further. Sen. Rand Paul (R–Ky.) has been using his positive relationship with President Donald Trump—and the president's anger at the surveillance of his campaign, which ultimately led to a failed impeachment attempt—to push for reforms.

The Hill reported on Sunday that Paul is, as he has been in the past, the loudest voice stopping Congress from quietly keeping things the way they are:

Paul says he won't support a short-term extension and appeared skeptical that he would back a larger deal that paired a USA Freedom extension with reforms to FISA, though he added that he could support some of the surveillance reforms if they get standalone votes, as amendments, for example.

He's also pushing for an amendment vote to prohibit FISA warrants from being used against American citizens and to prohibit information obtained in the FISA courts from being used against a U.S. citizen in domestic courts.

"I'm not for any extension. I'm for fixing it….I'll vote no on any extension," Paul said.

He's not alone among Republicans in the Senate, and he's got plenty of support from Democrats in the House as well, to require that there be changes. Rep. Doug Collins (R–Ga.) went on Fox Business yesterday to say that there weren't enough votes in the Democratic-controlled Congress to reauthorize the USA Freedom Act unless there were reforms.

Reform-minded members of Congress aren't focused entirely on the same reforms. The Democrats want to make sure that the records collecting program is officially dead. (NSA has unofficially stopped doing it, but the authorization still exists.) Paul and some other Republicans are using the problems with the warrants used to wiretap former Trump aide Carter Page to call for more independent oversight to review and advise the FISA court on warrants. Meanwhile, Attorney General William Barr and Senate Majority Leader Mitch McConnell (R–Ky.) prefer renewal without changes.

Nothing in these reforms is likely to have prevented what had happened with Page, since it's not the USA Freedom Act's authorities that were used to snoop on him. And based on the angry reaction of the FISA Court's judges when they found out the FBI had misled them in parts of the warrant application—and their decision to call for an independent reviewer—it's not clear additional oversight of the court itself would have stopped what happened with Page. The problems seemed to have originated from within the FBI itself.

But this is probably the only way to get Trump to care about restraining the use of secret surveillance on the rest of us. That is surely why Paul is hammering on about what happened to Page and Trump.

Paul's proposed reforms are probably a bridge too far to actually pass, but it's an admirable effort. Paul seems unlikely to be able to convince Congress to eliminate domestic FISA warrants entirely. But just as the USA Freedom Act was a compromise reform forced in part due to Paul's stubborn refusal to shut up about Americans' rights after Snowden's reveal, his prominent status in Trump World will guarantee that at least the broadest reforms will be considered.

But will they actually be debated? That's not so clear. There was already an aborted effort to attach reauthorization to a coronavirus emergency bill last week. With a deadline looming, there's sure to be an effort to roll reforms of some sort into other must-pass legislation. It's just not clear as yet how far those reforms will go.


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