House Approves a Weakened Surveillance Reform Bill After Co-Sponsors Turn Against It

Today the House of Representatives approved a
watered-down version of the surveillance reform bill known as the
USA FREEDOM Act by a vote of 303 to 121. Revisions to the bill
demanded by the Obama administration were so troubling that several
prominent supporters, including Reps. Justin Amash (R-Mich.) and
Zoe Lofgren (D-Calif.), ended up opposing
it. Here is how Amash, an original co-sponsor of the bill,
explained
his vote against it in a message on Facebook:

This morning’s bill maintains and codifies a large-scale,
unconstitutional domestic spying program. It claims to end “bulk
collection” of Americans’ data only in a very technical sense: The
bill prohibits the government from, for example, ordering a
telephone company to turn over all its call records every day.

But the bill was so weakened in behind-the-scenes negotiations
over the last week that the government still can order—without
probable cause—a telephone company to turn over all call records
for “area code 616” or for “phone calls made east of the
Mississippi.” The bill green-lights the government’s massive data
collection activities that sweep up Americans’ records in violation
of the Fourth Amendment.

As I
noted yesterday, the current version of the bill redefines the
“specific selection term” that is supposed to limit government
demands for phone records and other personal data held by third
parties. The version
unanimously approved by two House committees earlier this month
defined “specific selection term” as “a term used to uniquely
describe a person, entity or account.” The bill passed by the House
instead defines “specific selection term” as “a discrete term”
that “limit[s] the scope of the information.” Critics like Amash
plausibly worry that anything short of universal collection might
satisfy this requirement, meaning that the records of many innocent
people could still be sucked up by the National Security Agency on
the slightest pretext. One small consolation is that we may have
some indication if that is happening, since the bill requires that
decisions by the Foreign Intelligence Surveillance Court construing
that crucial phrase be published at least in summary form.

Rep. James Sensenbrenner (R-Wis.), who introduced the USA
FREEDOM Act to correct what he believed to be a gross
misinterpretation of the government’s authority to collect
information under Section 215 of the PATRIOT Act (which he also
wrote), said the weakened version of his bill was still an
improvement. “Let me be clear,” he
told his fellow legislators. “I wish this bill did more. To my
colleagues who lament the changes, I agree with you. The
negotiations for this bill were intense, we had to make
compromises, but this bill still does deserve support.”

The ACLU’s Laura Murphy took a similar view. “While far from
perfect,” she said,
“this bill is an unambiguous statement of congressional intent to
rein in the out-of-control NSA. While we share the concerns of
many—including members of both parties who rightly believe the bill
does not go far enough—without it we would be left with no reform
at all, or worse, a House Intelligence Committee bill that would
have cemented bulk collection of Americans’ communications into
law. We will fight to secure additional improvements in the
Senate.”

While the bill may be clear statement of congressional intent,
the mechanism for implementing that intent is highly ambiguous,
which is what the administration wanted. The people who argued that
all phone records are “relevant” to a terrorism investigation will
have no compunction about arguing that slightly reducing the size
of their dragnet makes it comply with the statutory language they
wrote.