Spy critics eye next targets

Critics of government surveillance hope they’re in the middle of a sea change.

Passage of legislation this week to rein in the National Security Agency was the first major congressional action to limit government spying in a generation, and it was a move away from the aggressive national security measures put in place after the Sept. 11 attacks.

{mosads}But whether the congressional view of surveillance has changed for good remains to be seen, with the battle over NSA reform set to play out again during the 2016 race for the White House.

Civil libertarians on both sides of the aisle vowed to harness the momentum of their victory on the USA Freedom Act to push for other protections.

“This is only the beginning,” said Sen. Ron Wyden (D-Ore.), one of Congress’s most vocal privacy hawks. “There’s a lot more to do.”

The USA Freedom Act renews Section 215 of the Patriot Act and two other provisions that had expired on Monday morning. But in doing so, the act also ends the NSA’s bulk collection of U.S. phone records and other data.

The bill reauthorizes the Patriot Act provisions through Dec. 15, 2019, setting the stage for another showdown during the next administration.

But civil libertarians want to go much further to curb government spying.

For one, congressional privacy advocates want to tackle the “backdoor search loophole” of Section 702 of the Foreign Intelligence Surveillance Act. While that provision is meant to allow the government to collect the communications of foreigners, the emails and chats of Americans can be “incidentally” picked up without a warrant under operations such as the NSA’s Prism and Upstream programs.

Section 702 is up for renewal at the end of 2017, putting the best chance of reforming it more than two years away.  

“We’re going to use this period, between now and the formal expiration date, to make the case” for reining that law in, Wyden said.

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) has also promised to hold hearings on the surveillance law in coming months, which could draw additional scrutiny.

“That feels like a long time away, but honestly it’s not,” said Elizabeth Goitein, co-director of the Brennan Center for Justice’s liberty and national security program.

Edward Snowden’s revelations about the NSA, which created the public uproar that made Tuesday’s vote possible, “feels like yesterday, and that was two years ago,” Goitein added. “The groundwork for that kind of change has to be laid over a long period.”

Civil libertarians this week listed a number of other changes they would like to tackle now that the USA Freedom Act is passed.

Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.) — the odd couple behind the Senate’s passage of the USA Freedom Act — are now eyeing a 1986 law that allows government agents to obtain people’s emails without a warrant.

Updating that law, the Electronic Communications Privacy Act, has been a priority for some lawmakers for years, but a proposal has yet to cross the finish line.

Lawmakers in both chambers also have attempted to write legislation banning the government from forcing companies to build “backdoors” into their technology that would give law enforcement agencies access to data.

And Wyden and House Oversight Committee Chairman Jason Chaffetz (R-Utah) have worked for years on a bill to prevent the government from tracking people’s cellphone or GPS location without a warrant. That bill would also include the use of StingRay devices, which are used by government agencies to mimic cell towers to pick up information from people’s phones.

The Senate’s passage of the NSA reform bill on Tuesday afternoon — after weeks of delay and months of negotiation — was the product of multiple factors.

Perhaps no single event helped propel reform more than the leaks from Snowden, which exposed the sweeping nature of the NSA’s previously secret warrantless collection of data about millions of phone calls made in the U.S.

But the action was also spurred by a new political climate, especially the increasing influence of the libertarian wing of the Republican Party.

No one felt that new political reality more than Senate Majority Leader Mitch McConnell (R-Ky.), who appeared dumbfounded at his repeated inability to push through an unchanged reauthorization of the Patriot Act laws, even with Republicans in command of both chambers of Congress.

One of the biggest obstacles in McConnell’s path was Sen. Rand Paul (R-Ky.), who has made his opposition to federal surveillance one of the pillars of his campaign for the White House.

Paul refused to vote for the USA Freedom Act, arguing the reforms didn’t go far enough, and he held up the legislation long enough to force a temporary lapse in the surveillance powers.

Now he’ll be trying to sell his position to Republican primary voters in the face of attacks from other GOP candidates who argue his stance puts national security at risk.

While it remains to be seen which view will win out in the GOP, there’s been a “pretty stark” change since the Patriot Act was passed in the days after 9/11, said No. 2 Senate Republican John Cornyn (Texas) this week.

Cornyn opposed the USA Freedom Act but ultimately voted for it to keep the laws from expiring for good.

“By eliminating some of these tools, you increase the risk,” he said, “and I hope and pray that we don’t experience a successful attack on our home soil, because we’ve essentially given up some of these essential tools in order to detect terrorist activity before it occurs.”

If any future attack occurs, it’s a sure bet that the politics would change to empower McConnell, Cornyn and other GOP hawks. 

Still, the passage of the USA Freedom Act has been a bright spot for privacy advocates, who have suffered years of setbacks.

“It is certainly historic,” said Goitein. “Even if it’s a momentary slamming or tapping on the brakes, it is a very significant event.”