Civil Rights

Time for the Senate to reform surveillance

This week, Senate Majority Leader Mitch McConnell (R-Ky.) introduced S. 1357, a bill to extend for two months the highly controversial, soon-to-expire Section 215 provisions of the USA PATRIOT Act. While a temporary extension of these provisions might seem innocuous, we’ve seen this kind of delay tactic before. It is part of a longer-term strategy to derail surveillance reform, and if the Senate allows the delay, it will serve only to extend the abuse of our civil liberties and fundamental human rights.

The time has come to pass the most comprehensive surveillance reform in the U.S. since the USA PATRIOT Act was signed into law 14 years ago. Rather than put off decision-making, Congress should take heed of what the Snowden revelations and subsequent court rulings taught us about how Section 215 is being abused.

{mosads}Section 215 is one of the provisions in the USA PATRIOT Act that were written with built-in expiration dates. In theory, a “sunset” forces Congress to review the authorities that a provision grants to the executive branch as well as the programs that a provision purports to authorize. Yet each time Section 215 has faced expiration, surveillance hawks employ the same strategy. They delay the debate until expiration, then use the “crisis” caused by this delay to whip votes in favor of extending the provision without real reform.

History shows that this delay tactic generally works for maintaining the status quo, so it’s no surprise to see it used again. However, we believe that this time, the situation can — and must — play out differently

It was less than two weeks ago that the Second Circuit Court of Appeals ruled that the NSA’s bulk collection of phone records under Section 215 is unlawful, finding that the language does not permit the government to collect everything. The court also rightly cast doubt on the program’s constitutionality, observing that surveillance “seem[s] much more threatening as the extent of such information grows,” while acknowledging that the pending expiration of Section 215 and its ruling in the case could ultimately result in stronger privacy protections.

At the same time, momentum is building for surveillance reform. Last week, the House of Representatives overwhelmingly passed the USA FREEDOM Act of 2015 by a vote of 338-88. There has been more than 18 months of debate, and the bill has broad support from companies and privacy advocates alike. It ends the government’s collect-it-all approach to phone records and increases transparency and oversight under certain authorities. The Senate should now work to strengthen the bill to increase its protections for privacy and civil liberties, and then pass it. If that effort means that members of Congress have to miss their Memorial Day break, so be it.

Each time we lose the chance for public debate on surveillance reform, we become subject to further abuse of our fundamental rights. Yet Congress keeps on letting that happen. In 2009, for instance, when Section 215 was nearing an expiration date, privacy advocates threw their weight behind a bill that would have modified these provisions, increasing the government’s criteria for demonstrating the relevance of a surveillance order. Employing a strategy of brinkmanship, surveillance hawks convinced Congress to extend the expiring provisions for two months, and later, in early 2010, for yet another month. This bought them the time they needed to paint doomsday scenarios for Congress, which then passed a straight reauthorization without any new surveillance limits.

This pattern cannot continue.

If we want to rein in excessive government spying, we cannot afford further delay. Any attempt at short-term reauthorization should be seen as an effort to water down the USA FREEDOM Act’s privacy protections. That’s not acceptable. There are further discussions to be had about the appropriate scope of other programs that allow the government to gather our email and phone content. But Congress must start by rejecting any reauthorization of Section 215 — no matter how temporary — and then strengthening, and passing, the USA FREEDOM Act.

Mitnick is the Junior Policy counsel at Access, a global digital rights group.

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