Surveillance Reform: Our Undemocratic House

If you just relied on the headlines on the coverage of the House Judiciary Committee’s action yesterday on the USA Freedom Act, you’d think our nation has just reached an historic turning point in efforts to rein in the constitutionally-questionable and demonstrably ineffective post-9/11 mass surveillance programs:

NSA Snooping Program On Last Legs After Anti-PATRIOT Act Vote

With PATRIOT Act Deadline Closing In, House Advances Bill To Limit NSA Spying

The New Surveillance Bills That Could Replace The USA PATRIOT Act

House Reaches Deal On Bill To End NSA Phone Collection

House Votes To End NSA Phone Collection

I could go on, but you get the picture. And none of those headlines are accurate. Not even close, in fact.

Of the major news outlets, the New York Times was among the few to actually note that the bill doesn’t actually end the PATRIOT Act’s telephone metadata program:

The government would still be able to conduct some bulk data collection. The N.S.A. has used a section of the law that created the FISA court for vast sweeps of phone and email data. Judiciary Committee members from both parties sought to end that data-collection avenue as well, but leaders of the committee beat that effort back, saying the Republican leadership would torpedo the bill if it passed.

As I’ve noted elsewhere, “some” bulk collection is far more likely to turn out to be a lot of bulk collection.

But the Times also put its finger on the larger political problem with enacting real surveillance reform: the opposition of key House and Senate leaders to actually ending the programs, and the lack of real, piercing pressure on them to do so.

Julian Hattem of The Hill provided an excellent account of how a tiny number of key lawmakers are responsible for continuing government spying on the American people, and his piece’s headline tells the real story:

Expansive Surveillance Reform Takes Back Seat To House Politics.

Several lawmakers from both parties, led by Rep. Ted Poe (R-TX) and Rep. Zoe Lofgren (D-CA), attempted to win passage of an amendment that would have barred warrantless searches of American’s communications captured under Sec. 702 of the FISA Amendments Act, and also have banned the government from forcing American tech companies to build in encryption-subverting “back doors” into their products. The very same amendment passed the House in June 2014 as part of the DoD appropriations bill by a vote of 293–123 — and a robust majority of currently serving House Judiciary Committee members voted for that amendment.

House Judiciary Chairman Bob Goodlatte (R-VA) effectively admitted that a bill under his jurisdiction was not in fact truly under his control.

“We have been assured if this amendment is attached to this bill, this bill is going nowhere,” Judiciary Committee Chairman Bob Goodlatte (R-Va.) said. “This amendment is objected to by many in positions who affect the future of this legislation.”

Lofgren expressed her exasperation with the twisted legislative process blocking the reform amendment.

“How can it be when the House of Representatives has expressed its will on this very question, by a vote of 293–123, that that is illegitimate?”

Poe was equally blunt on the consequences of not passing the amendment.

“We’re talking about postponing the Fourth Amendment and allowing it to apply to American citizens for at least two years.”

We’ve been postponing the Fourth Amendment for a lot longer than that — since the STELLAR WIND program commenced on Sep. 14, 2001, and arguably going all the way back to the early 1990s thanks to the DEA. The Founders did not specify that the application of the Fourth Amendment was optional in times of actual or alleged national emergency. They certainly did not intend that a tiny group of recalcitrant House and Senate members be allowed to use their positions of power to continue to deny those Fourth Amendment protections to Americans. What this episode demonstrates is that the struggle for real surveillance reform is inextricably tied to the larger problem of reestablishing a functioning pro-Bill of Rights majority in the House and Senate.