Our allies at CREDO Action provide this analysis of the USA Freedom Act and what we accomplished in the past several weeks:
At midnight on Sunday, section 215 of the PATRIOT Act expired because activists like you fought back and forced a showdown in the Senate over unconstitutional spying on Americans.1 And for a moment, one of the government’s worst domestic surveillance authorities lapsed.
This was a battle won for our movement.
Then yesterday, less than 48 hours later, the Senate undid everything. Senators voted overwhelmingly to reauthorize unconstitutional spying creating sweeping new authorities for the government to conduct unconstitutional mass surveillance of Americans by passing the USA FREEDOM Act.2 That reauthorization, via passage of the USA FREEDOM Act, is not something we call a victory.
This is one of those emails where we want to share with you our thinking on a complex situation, and talk about our organizing strategy.
You may be hearing about this from lots of different groups and politicians. There’s a real difference of opinion among groups that share similar goals. We want you to know why we ended up where we did on both the substance of reform and the strategy to achieve it.
The civil liberties community was split on this bill. Some civil liberties groups, most of them based in Washington, D.C., along with tech industry groups and pundits in the mainstream media were quick to call the passage of the USA FREEDOM Act a major victory. CREDO supported the 2013 USA FREEDOM Act. But after its first introduction it was watered down and contorted beyond recognition.3 We not only pulled our support from subsequent versions of the bill, but fought vigorously to stop it from passing. In reality, this latest version of the USA FREEDOM Act does not enact deep, meaningful reform to the surveillance state.4 The White House supported the bill, as did the surveillance agencies, because they were desperate to be able to say that something, anything, has been done to address Edward Snowden’s revelations of unconstitutional spying.
At best, the current version of the bill will place some restrictions on the bulk collection of telephone records, curtailing somewhat the use of a handful of the government’s many surveillance authorities. It by no means will end mass, suspicionless spying on Americans, though it could reduce somewhat the number of Americans impacted by certain surveillance programs at any given time. The NSA may have to collect merely huge numbers of records about large numbers of Americans – instead of nearly all domestic telephone records.
The bill also makes some reforms to the secretive Foreign Intelligence Surveillance Court – which may be a little more transparent under this bill. At CREDO, we don’t believe that these relatively superficial changes, some of which may hamper the NSA’s suspicionless spying somewhat but won’t end mass surveillance, are worth reauthorizing the PATRIOT Act, nor are we confident that the government will interpret the law in the same way as reformers – after all, agencies like the NSA and FBI have an egregious track record of ignoring or distorting laws they find inconvenient.
The USA FREEDOM Act is far worse than simply allowing section 215 of the PATRIOT Act to expire. It’s not clear that the USA FREEDOM Act will reform anything. Even if it forces the NSA to change some practices under particular authorities, we know that they’ll try to shift those same behaviors elsewhere, will stretch the law beyond anything reasonable, and based on past experience they’ll then lie to their overseers in Congress about it. But what is clear is that it re-creates the PATRIOT Act’s expired authorities and explicitly authorizes sweeping and invasive programs to collect highly-sensitive medical, educational, financial, email and telephone records without a warrant.5
It never touched on most of the authorities the government exploits to justify its many mass surveillance programs, including section 702 of the FISA Amendments Act and Executive Order 12333. It gives corporations – including many of the tech companies that supported the bill – legal immunity from prosecution for participating in spying on Americans.
This happens a lot in Washington, D.C. The conventional wisdom there is that real reform isn’t possible so compromises are made early on. Then compromises are made on the compromise, making an already weak bill worse. Too often we end up with Democrats desperate to pass a bill not worth fighting for. CREDO believes in advocating the change we want to see, not the compromise that D.C. insiders think is achievable.
Even though we lose most of the time, many times if we fight hard enough we lose less badly and sometimes we surprise the cynics and win. When this fight started, everybody expected that the outcome would either be a swift “clean” reauthorization of the PATRIOT Act, or passage of a far weaker version of the USA FREEDOM Act.
Instead, a powerful new coalition of progressives and libertarians forced an unprecedented temporary sunset of three provisions of the PATRIOT Act and blocked repeated attempts by pro-surveillance legislators to weaken the USA FREEDOM Act or ram through a clean reauthorization of the PATRIOT Act. We were helped enormously by the Second Circuit federal court, which ruled that section 215 of the PATRIOT Act didn’t authorize bulk collection of telephone records by the NSA.6 This emboldened some politicians and civil liberties groups to dig in and demand more reform, and changed the political calculus.
Senate Majority Leader Mitch McConnell made disastrous mistakes in how he scheduled votes and managed his caucus. That helped the grassroots army we had assembled gain real traction and put PATRIOT Act sunset in play for real. Nothing like this has ever happened in the post September 11 security state – not even close. Despite the White House and surveillance agencies throwing their support behind USA Freedom Act, we held strong and changed the terms of the fight to make sunset possible.
In the process we prevented the USA FREEDOM Act from getting weaker, which it inevitably would have had there not been such a strong push to simply let section 215 of the PATRIOT Act expire. What we got with the USA FREEDOM Act was dangerous fake-reform. Now we can go two ways. We can let Congress off the hook, fall for the line that they’ve actually done something and let the Obama White House continue it’s massive spying operation. Or we can fight back and build on our victory getting section 215 to sunset, if only for a couple of days.
The public proved it was well ahead of the politicians, strongly opposes mass surveillance and supports ending PATRIOT Act abuses. This fight demonstrates that the public can win battles in Congress that just a few years ago we were barely able to fight at all. We’re showing the world that standing strong can win big things, and that the more support we have for going big, the more we can win in the fights that are to come.
The hundreds of thousands of people who attended rallies, made phone calls, sent emails, signed petitions, donated money and spoke out against reauthorizing the PATRIOT Act have defied the Beltway conventional wisdom. If we can build on the growing power of the countless people who have organized to demand the restoration of the civil liberties we’ve lost since the 9/11 attacks we can pass meaningful reform.
CREDO activists played an enormous role in this fight. We made thousands of phone calls, sent Congress more than 175,000 petition signatures opposing the USA FREEDOM Act, and joined Demand Progress, Fight for the Future, Restore the Fourth, and many other allies to organize more than 50 emergency rallies calling for a sunset of the PATRIOT Act. CREDO members also helped make possible the powerful movement to sunset the PATRIOT Act. CREDO has given more than $2 million to organizations like the ACLU, the Electronic Frontier Foundation, Demand Progress, Fight for the Future, and the Bill of Rights Defense Committee, which are fighting to rein in government surveillance.
And we worked behind the scenes with our allies to help organize a powerful civil libertarian flank to demand real reform. Some members of Congress responded, and fought powerfully to end mass surveillance. In the Senate, Rand Paul led the opposition to the USA FREEDOM Act with a game-changing filibuster that helped force a temporary sunset of the PATRIOT Act.7 In the House, champions like Reps. Mark Pocan, Barbara Lee, Mark Takano, Thomas Massie, Justin Amash, and Ted Poe led the charge to rein in the surveillance state. But sadly, most Democrats in both the House and Senate failed to show the same commitment to our civil liberties as Republicans like Sen. Rand Paul, and Reps. Massie, Amash and Poe and Democratic Reps. Mark Pocan and Barbara Lee. The overwhelming majority of Democrats ultimately voted in favor of more mass surveillance.
Even more disappointing, President Obama is competing with George W. Bush in using fear mongering to champion making PATRIOT Act powers permanent. There’s no evidence that these unconstitutional spying programs are making Americans safer. The Department of Justice’s Inspector General recently came out with a report saying that section 215 of the PATRIOT Act did not contribute in a meaningful way to a single national security related investigation.8
Not a single one!
And what’s more, just before Memorial Day weekend a joint bulletin from the FBI, Department of Homeland Security and National Counterterrorism Center warned that intelligence analysts were overwhelmed with social media posts by Americans supporting ISIS. If our security agencies can’t even read all the social media posts by Americans raising their hands in support of terrorists, how can they make productive use of the telephone records of virtually every American?
As a telecom that can be compelled by the government to participate in unconstitutional surveillance of Americans, CREDO will continue fighting to repeal the PATRIOT Act and the FISA Amendments Act, rein in the surveillance state, and place real checks on unconstitutional government surveillance. While we see passage of the USA FREEDOM Act as a temporary setback, we will have other opportunities to fight to restore our civil liberties – and we’re better positioned than ever to win. Coming up, we’ll have opportunities to support strong reform legislation that civil libertarians in Congress will try to attach to appropriations bills and other must-pass legislation, and to speak out in support of stand alone reform bills like Reps. Mark Pocan and Thomas Massie’s Surveillance State Repeal Act.
We also believe that too often in D.C. personnel is policy. So we will continue to call for the ouster of Director of National Intelligence James Clapper who perjured himself in Congress lying through his teeth about the existence of the bulk surveillance program later exposed by Edward Snowden. And we’ll follow the money, working to defund the agencies and federal contractors who want to keep these unconstitutional programs with no track record of success because they yield rapacious profits underwritten by taxpayers like you and me. We’ll be in touch soon about all of that soon. But for now, thank you for your activism. The only thing protecting our civil liberties is organized resistance to power grabs by our rogue surveillance agencies – in other words, you.
- Charlie Savage, “A Gap in Surveillance, but Ways Around It,” The New York Times, June 1, 2015.
- Dan Froomkin, “USA FREEDOM Act: Small step for post-Snowden reform, Giant Leap for Congress”, the Intercept, June 2, 2015.
- Andrea Peterson, “NSA reform bill passes House, despite loss of support from privacy advocates,” The Washington Post, May 22, 2014.
- David Cole, “Here’s What’s Wrong With the USA Freedom Act,” The Nation, May 6, 2015.
- Spencer Ackerman, “Back from the dead: US officials to ask secret court to revive NSA surveillance,” The Guardian, June 3, 2015.
- David Greene and Mark Jaycox, “ACLU v. Clapper and the Congress: How The Second Circuit’s Decision Affects the Legislative Landscape,” EFF.org, May 11, 2015.
- Manu Raju and Burgess Everett, “Senate fails to save PATRIOT Act,” Politico, May 31, 2015.
- Spencer Ackerman, “FBI used Patriot Act to obtain ‘large collections’ of Americans’ data, DoJ finds,” Politico, May 21, 2015.