We lack in this country a major party that offers wholehearted and universal support for the protections embodied in the Bill of Rights, and the choices offered are often highly constrained. To take the last two presidential elections as an example, the more pro-civil-liberties of the major-party candidates has launched more Espionage Act prosecutions than all previous presidents combined; indefinitely detains legally innocent people, for fear of what they might do if released; allows agencies to gin up fake terror plots; calls the idea of actually prosecuting torturers “sanctimonious“; and would prefer a cosmetic surveillance reform that legitimates most of what the deep state is doing and that, of course, wouldn’t punish anyone. The less pro-civil-liberties candidates argued for unending war in the Middle East, invited warmongers and torturers to introduce them at campaign stops, and argued that affording due process to prisoners of war would be a kind of treason.
There’s a reason for this constrained choice set: The elites of both parties no longer, if they ever did, believe that laws apply to them, their colleagues, their funders, or the intelligence agencies. As a result of this culture of lawlessness, no candidate that genuinely seeks to have laws apply universally will garner the insider support needed to advance their candidacies.
We will see the effects of this constrained choice set in the new Congress most clearly in the field of prosecutions for US government acts of torture.
Let’s review the history.
Read More →
Last week, the House of Representatives passed the bill called The USA Freedom Act, 303 votes to 121. Following a series of amendments, the bill as it passed in the end contained much weaker reforms than even the very modest ones it originally proposed. The Chair of the Judiciary Committee’s manager’s amendment removed two-thirds of its substantive reforms; the Chair of the Intelligence Committee and the White House worked hard to remove as much as possible of what remained, leaving a shell that will still permit mass surveillance.
The Fourth Amendment is clear: Mass surveillance is unconstitutional. A government search is unreasonable, and therefore unconstitutional, if it is not authorized beforehand by a warrant issued by a judge, on the basis of “probable cause” of involvement in an actual crime, supported by an “oath or affirmation, and particularly describing” the “persons or things to be seized.”
That’s what ought to happen. This bill, on the other hand, would allow government searches of millions of innocent people’s data and movements, not based on probable cause or even reasonable suspicion of their personal involvement in a crime, but simply on any “selection term” vaguely associated with a target of surveillance. The “selection term” could be as broad as the government likes, covering, for example, everyone born in Hawaii, or everyone with the middle name Hussein. The argument for this “reform” that supporters are touting is that this is better than the current government practice of collecting everything with no selection term at all. While that’s true, it misses the larger point. The standard is individualized probable cause warrants, not “whatever is most convenient for the NSA.” A standard that can be redefined at will is marginally – if at all – better than having none.
Read More →
Photo credit: theintercept.org
Yesterday, the Internet lit up in protest against mass surveillance. In the US, Congress got over 85,000 phone calls from people frustrated by mass surveillance, and urging their legislators to support the USA FREEDOM Act. Here in Massachusetts, we worked with the ACLU of Massachusetts to target the specific legislators who had not cosponsored. Our heartfelt thanks go out to Rep. Joseph Kennedy (MA-04) and Rep. Katherine Clark (MA-05), who cosponsored over the last week. Our puzzled and insistent glare turns to Rep. Niki Tsongas (MA-03), who has not cosponsored yet and is still considering the matter. The USA FREEDOM Act is currently listed at 134 cosponsors (though that doesn’t yet officially include Rep. Clark, and there may be, after yesterday, other “undeclared cosponsors”).
What’s next? Well, There is a real-deal NSA reform bill, that would repeal the infamous PATRIOT Act altogether, along with the FISA Amendments Act, forbid mandatory software backdoors, and give whistleblower protections to government contractors as well as employees. It’s called the Surveillance State Repeal Act. One of its nine cosponsors is none other than Rep. Richard Neal (MA-01), who has not yet cosponsored the USA FREEDOM Act either, it seems because it is not strong enough. We applaud his commitment, but would argue that it’s not an either-or – we’d love to see him cosponsor both. It’s great to see that two other Massachusetts legislators – Rep. James McGovern (MA-02) and Rep. John Tierney (MA-06) – are also among the nine cosponsors, putting Massachusetts at the forefront of efforts to restore freedom and the Fourth Amendment.
So let’s keep moving, and let’s encourage our legislators to cosponsor both of these good bills. And meanwhile, check out our awesome calendar (right) of surveillance-related events coming up in Massachusetts!
Photo credit: The Daily Dot
Sen. Patrick Leahy (D-VT) and Rep. Jim Sensenbrenner (R-WI), one of the original authors of the USA PATRIOT Act, jointly introduced an NSA reform bill on October 29. Rep. Sensenbrenner has clearly not lost any of his love of elaborate nationalistic acronyms in the intervening years, and named his bill the ‘Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and On-line Monitoring Act”, or “USA FREEDOM ACT”. For once, the content of a bill proposed in Congress may actually bear some relation to its title, in that it appears to be a sincere effort to rein in several of the worst abuses at the NSA.
However, what has not been clear in the reporting on the Act is the specifics of what the Act actually does. A quick look at the original text shows why. As one activist lamented, “Unfortunately, the text is exceptionally hard to read … It would be much easier to read if the full text was collated with the current statutes.” Indeed it would. Luckily, Digital Fourth is on hand to provide a more detailed guide to its (very densely written) contents than is presently available.
For those who want a high-level summary of the bill, the ACLU has provided one here. What follows is a low-level, section-by-section summary of how the bill changes current law. We welcome updates and corrections as we go forward.
Read More →