Friday, September 19, 2014

The Senate is about to reauthorize the PATRIOT Act?

The Senate is about to reauthorize the PATRIOT Act?
It’s been over a year since Edward Snowden brought public attention to the breathtaking scope of President Obama’s indiscriminate spying on American citizens who aren't suspected of any wrongdoing.‬ And now there’s a bill in the Senate that could effectively reauthorize the PATRIOT Act without fixing the worst constitutional abuses by the NSA.
We can’t let Congress effectively reauthorize the PATRIOT Act for an additional 2.5 years, legalize currently illegal surveillance activities, and grant immunity to corporations that collaborate to violate privacy rights.

But that’s exactly what a bill now being considered in the Senate, Sen. Patrick Leahy’s USA FREEDOM Act, would do.

Tell the Senate: Oppose the USA Freedom Act in its current form. Click here to sign the petition.

This bill has been endorsed by Director of National Intelligence James Clapper, who still hasn't not been prosecuted for lying to Congress about the NSA’s unconstitutional surveillance dragnet of virtually all Americans’ phone records. But surprisingly it’s also being promoted by civil liberties groups who helped draft it including the ACLU and the Electronic Frontier Foundation (both groups that CREDO has funded in the past).1

This is a complicated issue and we want you to understand why CREDO opposes this bill and is asking activists to contact their senators to oppose it, too.

CREDO endorsed the initial Senate version of Sen. Leahy’s USA Freedom Act, but we withdrew that endorsement after the bill was gutted in the House of Representatives. Subsequently, Sen. Leahy redrafted the bill, and unfortunately in its current form it doesn’t even meet our lowest bar for reform and in fact could do more harm than good if enacted. What’s more, this bill is likely to get worse, not better, as it moves through the Senate. We need to send a signal to senators that we oppose this bill as written and demand real reform that doesn’t legalize currently illegal surveillance activities.

The latest Senate version of the USA FREEDOM Act contains ambiguities that are ripe for abuse:
  • The bill does not define "direct connection," which may permit the government to access the data from Americans' smart phones through telecommunication providers, which the USA FREEDOM act immunizes from customer lawsuits. This would be an expansion of the NSA's current authority.
  • It adds loopholes in Section 215 of the PATRIOT Act, such as the authority to collect phone records in other than daily production or to use a corporation, organization, or government entity as a specific selection term, which may still permit bulk data collection.2
  • The bill expands on the emergency provision currently approved by the Foreign Intelligence Surveillance Court, creating new powers for the government to retain data and introduce it as evidence even if the courts reject the NSA's petition to collect it.
The bill also fails to substantially rein in surveillance, and stops short of establishing adequate oversight:
  • The bill does not safeguard against warrantless ("back door") searches on the content of Americans' communications collected under Section 702.
  • While imposing new reporting requirements, it exempts "back door" searches conducted by the FBI, which pose one of the gravest dangers to Americans' civil liberties.
  • The bill does not prevent the use of Executive Order 12333 to conduct bulk collection.3
And perhaps most damningly, the current version of the Senate USA Freedom Act effectively reauthorizes the worst parts of the PATRIOT Act.

Tell the Senate: Oppose the USA Freedom Act. Click here to sign the petition.

The USA FREEDOM Act as written has significant potential to make our current unconstitutional surveillance status quo worse, not better. At best, even if faithfully implemented, the current bill will erect limited barriers to only one of three known legal justifications for the unconstitutional, dragnet surveillance revealed by Edward Snowden and other whistleblowers, create additional loopholes, and provide a statutory framework for some of the most problematic surveillance policies, all while reauthorizing the PATRIOT Act until 2017 (the worst parts of the PATRIOT Act, like Section 215, are currently set to sunset in 2015).

CREDO is joined by whistleblowers Daniel Ellsberg and Mark Klein in opposing this version of the USA Freedom Act. Our allies at Demand Progress, Sunlight Foundation, Fight for the Future, Roots Action, and the Courage Campaign also oppose the bill.

We’re taking our time to explain in detail why we oppose this act because it has garnered support from some our traditional allies in this fight. The ACLU and EFF helped Senator Leahy’s staff redraft the bill. While they fought to block the worst compromises and agree that the bill is far from perfect, they are still supporting its passage despite the implications for PATRIOT Act reauthorization and the other dangers we’ve outlined here.

CREDO supports passage of Rep. Rush Holt’s Surveillance State Repeal Act which would repeal the USA PATRIOT Act of 2001 and the FISA Amendments Act of 2008. But until full repeal can be achieved, CREDO has worked specifically to reform the worst abuses of both acts. This includes fighting to roll back the National Security Letter (NSL) provisions of the USA PATRIOT Act, and fighting to make FISA Court opinions public so that the American people know how the secret FISA court is interpreting the law.

While we endorsed Sen. Leahy’s first version of the USA FREEDOM Act, the bill in its current form is not the substantive reform originally envisioned and supported by the public. We believe that focusing on PATRIOT Act reauthorization next year when it is scheduled to sunset, fighting the government’s unconstitutional spying in the courts, and working with our elected representatives on the right and the left to defund unconstitutional intelligence agency programs is a more constructive path forward.

You will almost certainly hear from other civil liberties groups on this issue. Some will urge you to oppose the bill like CREDO has. Others will urge you to support this bill. We appreciate that this is a complicated issue and we want to be sure that we share our thinking in depth with our members so you can make an informed decision on where you stand.

Thank you for everything you do to fight back against the violations of our 4th and 1st Amendment rights.
  1. "Understanding the New USA FREEDOM Act: Questions, Concerns, and EFF’s Decision to Support the Bill,", August 7, 2014.
  2. "Might Get Fooled Again? — The Senate and Surveillance,", July 30, 2014.
  3. "Meet Executive Order 12333: The Reagan rule that lets the NSA spy on American,", July 18, 2014.