Reform the NSA now

The time for Congress to take on the National Security Agency has come. There’s nothing left to wait for.

The Privacy and Civil Liberties Oversight Board has issued its first report, the work of the President’s Review Group is done, and the president has made his NSA speech. Now it’s time for Congress to get to work, and thankfully the president signaled his interest in working with it to reform U.S. surveillance programs during his State of the Union speech.

Here’s why Congress must get involved and what it should do.

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Only Congress has the institutional power to take on the Obama administration and judicial spying defenders. While the president finally recognized that our personal records and data are sensitive and that government collection of them poses privacy risks, the administration has yet to endorse substantial and meaningful reform efforts, even in light of acknowledgements that some of these powerful NSA surveillance tools are directed at everyday Americans. Administration representatives like Director of National Intelligence James Clapper and NSA Director Keith Alexander are actively trying to undercut any forthcoming proposals, and even some of the judges on the secret Foreign Intelligence Surveillance Court, or FISA court, have gotten in on opposing transparency and oversight. While lawsuits work their way through the courts, the only entity that can force far-reaching, immediate reform is Congress itself.

Congress needs to stake out its jurisdiction over these issues. Members of Congress – especially in the House – have been kept in the dark about NSA spying. Some have been actively denied access to fundamental documents that explain the scope and legality of domestic spying authorities that legislators are expected to vote on. Sadly, others have been happy to cede any responsibility for these programs to the Intelligence Committees and have enjoyed the plausible deniability that comes with that abdication. But now that these surveillance programs are public, Congress will be complicit in their continuance if it doesn’t act to rein them in. If Congress can only muster a collective shrug in response to these incredible revelations, administrations for years to come will have no incentive to step outside the shadows of the Intelligence Committees.

Congress is already thinking bigger than the administration. There are over 30 different pieces of pending legislation dealing with NSA reform, including appointment of the FISA judges, FISA court operations, transparency, and substantive limits to indiscriminate spying. While the president’s only truly concrete decision so far was related to the collection of phone records under Patriot Act Section 215, Congress is thinking about email, the internet, financial and credit records, and broader Patriot Act authorities like national security letters and pen register/trap and trace orders. Congress may not make big changes in the scope of spying on foreigners , but it is discussing important privacy enhancements.. There are still more questions than answers on some of these activities, but at least they are on the reform radar.

The question now is this: What exactly should Congress do?

The Senate Intelligence Committee has passed legislation to entrench and expand current domestic spying programs. The Judiciary Committees, however, are sitting on a gem of surveillance reform in the USA FREEDOM Act, a broadly bipartisan reform bill with nearly 150 cosponsors that substantially amends – but does not repeal – authorities under the Patriot Act and the FISA Amendments Act. Rep. James Sensenbrenner (R-Wis.), one of the Patriot Act’s original authors and co-sponsor of the USA FREEDOM Act, told Guardian columnist Dan Gillmor last week that "Right now we do think we have enough votes in the House to move the USA Freedom Act forward.”  The legislation, however, remains stuck in the House Judiciary Committee.

But that may not be the case for much longer.

The chairman of that committee, Rep. Bob Goodlatte (R-Va.), says he can’t wait forever for the White House to weigh in on the USA FREEDOM Act. Members of Congress, he told an administration witness at a hearing last week, are "chomping at the bit to move forward."

Some will argue that it is too soon to start reform efforts and that there are too many unanswered questions. But waiting for the perfect moment will delay action forever. The administration has failed to affirmatively release information on most of the disclosed programs and only shares dribs and drabs in response to Snowden or other publications.

While the long-term prospects for fleshing out the details of post-9/11 surveillance programs are good, there is no reason why Congress shouldn’t get started on reform efforts with the information it has now. Scheduling a House Judiciary Committee vote on substantial reform legislation like the USA FREEDOM Act will force the administration and its defenders to offer real criticisms of the proposal and move beyond fear-mongering and generic platitudes for the intelligence community.

The time for Congress to act is now, for history will not be kind if this opportunity to protect our liberties and privacy from indiscriminate and unconstitutional surveillance is squandered.

Richardson is the privacy expert for the American Civil Liberties Union (ACLU).