Future Tense

We Finally Have a Chance to Pass Surveillance Reform

Don’t let these five lame arguments stand in the way.

Edward Snowden appears live via video during a student organized world affairs conference at the Upper Canada College private high school in Toronto on Feb. 2, 2015.

Photo illustration by Slate. Photo by Mark Blinch/Reuters

Last week, the House of Representatives approved the USA Freedom Act surveillance reform bill by an overwhelming vote of 338 to 88. Now, after several days of uncertainty, it’s clear: The legislation is going to get a vote on the Senate floor, likely in the next day or two. That makes it a good time to debunk some of the arguments that opponents of the bill are likely to use in the sure-to-be-lively debate.

First, to catch up the viewers at home: The USA Freedom Act (H.R. 2048) is intended to rein in some of the National Security Agency surveillance of Americans that was first revealed by Edward Snowden two years ago. The legislation would end the bulk collection of Americans’ telephone records that is currently being authorized under Section 215 of the USA Patriot Act (the law passed in the aftermath of Sept. 11). Similarly indiscriminate bulk collection of any other types of records under Section 215 and a variety of other authorities would be forbidden, too. The bill would also create more accountability and transparency around the government’s surveillance activities, including by introducing new reforms around the secret Foreign Intelligence Surveillance Act “FISA” court that authorizes national security–related surveillance, by requiring the government to publicly issue more data about the surveillance it conducts, and by allowing companies to issue more detailed data about the demands for user information that they receive from the government.

Although the bill doesn’t contain all the reforms necessary to check all of the NSA mass surveillance programs we’ve learned about since the summer of Snowden in 2013, it has the support of the White House, the Intelligence Community, major tech companies, and privacy and advocacy groups—including New America’s Open Technology Institute, where I work. (Disclosure: New America is a partner with Slate and Arizona State University in Future Tense.) However, Senate Majority Leader Mitch McConnell and other surveillance hawks in the Senate, like Intelligence Committee Chairman Richard Burr, oppose the legislation. They would prefer to see Congress renew Section 215, which is set to expire or “sunset” at the end of this month, with no reforms at all. Meanwhile, a right-left coalition of anti-surveillance voices argues that USA Freedom’s reforms aren’t strong or comprehensive enough. They also oppose the bill because it too would renew Section 215, albeit with reforms.

At the moment, it’s unclear who will prevail. But we do know some of the myths about the USA Freedom Act that we’ll hear in the next couple of days, from both the pro-surveillance and anti-surveillances voices that oppose the compromise bill. Here are the top five:

MYTH 1: A small group of hawkish Senators, like McConnell, Burr, and Tom Cotton, claim that the Section 215 phone records bulk collection program is necessary for national security.

REALITY: The president’s hand-picked NSA Review Group, the independent and bipartisan Privacy and Civil Liberties Oversight Board, and a study conducted by New America’s National Security Project have all concluded that bulk collection under Section 215 has never produced information that was necessary to stopping a terrorist attack. This is why the White House and the director of national intelligence have voiced their support for USA Freedom, calling it a reasonable compromise that “preserves essential operational capabilities.”

MYTH 2: USA FREEDOM would undermine privacy because, as McConnell claims, “rather than storing the information securely at NSA, the information would be held by private companies.”

REALITY: The phone records that the NSA currently collects in bulk are created in the phone companies’ regular course of business and are thus already in the hands of phone companies. USA Freedom would significantly enhance privacy by ensuring that only the phone companies, and not the NSA, had access to Americans’ records.

MYTH 3: McConnell also claims that USA Freedom “will not work at all because there is no requirement in the legislation that the telecoms hold the data for any length of time.”

REALITY: The president, the NSA, the attorney general, and the director of national intelligence have all stated publicly, twice, that a new data retention requirement isn’t necessary. Moreover, the House has rejected proposals for new data retention requirements several times, while dozens of security experts, major tech companies and phone companies, and advocacy groups have written to Congress opposing such a controversial new requirement. It is not only unnecessary—if enacted it would threaten privacy, undermine Internet security, and harm the economy.

MYTH 4: USA Freedom is a “fake” reform that actually codifies bulk collection rather than restraining it.

REALITY: USA Freedom’s ban on bulk collection relies on a concept called a “specific selection term,” or SST. That’s the target information that the bill would require the government to specify when asking the FISA court for surveillance authority, so as to avoid indiscriminate bulk collection like the telephone records program. Critics are concerned that the SST definition is so broad that it might still authorize bulk—or at least, very bulky—collection. However, the bill’s language, structure, and legislative history all make clear that the SST is an additional requirement on the government when it applies to the FISA court for a surveillance order. That requirement is on top of the current requirement that the records the government seeks are relevant to its investigation. In other words, USA Freedom’s SST requirement doesn’t authorize anything, whether implicitly or explicitly—it only limits. This is made particularly clear in the House Judiciary Committee report on the bill, which explains that the SST component of the bill would require “the government to make an additional showing, beyond relevance,” (emphasis added) rather than simply allowing for any surveillance that satisfies the SST definition.

MYTH 5: Some groups that support surveillance reform believe that sunset of Section 215 would be a better outcome than passage of USA Freedom.

REALITY: Only one senator, Rand Paul, has expressed support for a permanent sunset of Section 215, and any expiration of the authority would, at best, be short-term. Importantly, even if a short-term sunset were achieved, it could backfire on its proponents and result in increased pressure on Congress to pass a weaker, more compromised bill. And even if a best-case-scenario permanent sunset were possible, it might not stop NSA bulk collection. For example, the phone records program could be restarted under the government’s “pen register” surveillance authority, which was used for more than a decade to collect Americans’ Internet metadata in bulk. USA Freedom’s bulk collection ban, on the other hand, would prohibit bulk collection of any kind of record, Internet or telephone or otherwise, under that authority and several others. It would also create new transparency and accountability mechanisms, which we wouldn’t get from just a sunset of 215.

Although far from perfect, USA Freedom is still the best option for reform that’s on the table, and the Senate should pass it now rather than ignoring the White House, the intelligence community, the Internet industry, privacy advocates, and a super-majority of the House of Representatives. It’s time for Senate leaders to stop playing games with Americans’ privacy and safety based on myths and half-truths, and get this thing done.

This article is part of Future Tense, a collaboration among Arizona State University, New America, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.