For the first time since ex-National Security Agency contractor Edward Snowden began revealing the scope of surveillance being conducted by the U.S. and its allies, there is a serious debate in the U.S. Congress about whether or not the government’s massive data collection should be reigned in, as key provisions of PATRIOT Act are about to expire. The law passed in the immediate aftermath of 9/11 then expanded over the course of the last decade is the foundation of the U.S. surveillance state.
Given the Obama administration’s embrace of both the law and its willingness to make extraordinary claims about online activities of other governments, F-Secure Security Advisor Sean Sullivan made this definitive prediction at the beginning of 2015: “Section 215 and Section 206 of the USA PATRIOT Act and Section 6001 of the Intelligence Reform and Terrorism Prevention Act will be reauthorized before their June 1, 2015 expiration date.”
If past is prologue, this prediction will come true. But there is some hope of reform.
On Wednesday, Senator Rand Paul spoke for more than 10-hours in opposition of the law’s renewal on the floor of the Senate. His goal was to draw attention to the issue — and his presidential campaign — and draw down some of the time before the Senate is set to recess this weekend, in hopes of disrupting a backroom deal to renew the law with no changes. (Ironically, if you’re keeping up this debate, you may see Paul’s ads following you around the internet.)
The Senate now faces two very busy and intense days of legislating. Here’s what you should know about the most important privacy debate in the world.
1. If Section 215 — the “library records” portion of the law which has been used to justify the collection of all phone records — expires, the NSA is legally required to shut down its phone surveillance program.
The Justice Department has warned lawmakers about this necessity, largely as a way of encouraging legislative action. Of course, restrictions on the law have been broken by the government before.
2. A bill reforming Section 215 has passed the House with a huge majority.
The USA Freedom Act is supported by the Obama White House and many reformers and rolls back a program that would not have prevented the 9/11 attacks and “was not essential to preventing attacks” according to a group appointed by the president to review surveillance policies. Paul opposes the Freedom Act because it forces telecoms to retain data providing the opportunity for what he calls “bulky, perhaps bulk collection.”
He asked, “Do we end up giving more power to the intelligence community when we’re trying to limit their power?”
3. Some believe that even the USA Freedom Act will end up expanding the government’s power to spy.
Marcy Wheeler, who covers government surveillance extensively on her blog Emptywheel, believes that the law could actually expand Section 215 to include access to your smartphone.
4. This issue unites both political parties and divides them internally.
Republican Senator Paul has been one of the most consistent critics of the PATRIOT Act. Seven Democrats joined him on the floor of the Senate Wednesday but only one Republican. The GOP controls both houses of Congress, but GOP leaders in the Senate are refusing to even hold a vote on the USA Freedom Act, which is backed by GOP leaders of the House. Democrats were vocal critics of the law under George W. Bush but Democratic President Obama voted for it and for retroactive immunity for the telecoms on his way to becoming president. His administration clearly does not want the law to expire and while it backs the Freedom Act, it would likely accept an extension with no reform.
5. None of this would be happening without Edward Snowden.
This debate and a recent ruling by the U.S. Court of Appeals stating that Congress never authorized bulk collection of phone records were both prompted by Snowden’s leaks. Before they became public concerns about the law, which have long been expressed by Democratic Senator Ron Wyden among others, were largely ignored as the PATRIOT Act enjoyed overwhelming support from both parties.
[Image by thierry ehrmann | Flickr]
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April 18, 2018