The week of October 19, 2014

How Congress supports the NSA by doing nothing

By Jesselyn Radack

It’s been almost a year and a half since whistleblower Edward Snowden’s revelations about the National Security Agency’s (NSA) bulk and warrantless surveillance programs were first brought to light. Since then, we’ve learned more disturbing details about the NSA’s programs: The NSA has collected emails and other Internet data directly from companies’ fiber optic cables, built backdoors into encryption software, and partnered with other intelligence services around the world to collect and share private information.

In the wake of these revelations, major technology companies have come out against the surveillance programs, and a broad ideological coalition of advocacy organizations including the Government Accountability Project, the National Rifle Association, and the American Civil Liberties Union have embraced a modest reform bill, the USA Freedom Act, championed by Sen. Patrick Leahy (D-Vt) and introduced in October 2013.

Yet, in all that time, Congress has shamefully run out the clock on its session and waltzed into the November midterm elections without passing surveillance reform. This Congress still has a few more weeks after the election—and before new members arrive at the beginning of next year—to pass meaningful legislation during its lame-duck session. So far, however, congressional inaction proves what many privacy and civil rights advocates have suspected all along: Congress’s complicity in the intelligence community’s illegal surveillance programs.

Ordinary citizens, activists, and the technology community must join together now for the coming PATRIOT Act fight.

Members of Congress have claimed they didn’t know about these programs and that programs like the warrantless phone metadata collection program was lawful and essential to national security. Now we know none of that is true. A federal judge has ruled that the NSA’s warrantless phone metadata program is likely unconstitutional; the government’s Privacy and Civil Liberties Oversight Board (PCLOB) has determined that the program exceeds its authority under the Patriot Act, and even the president’s review group on intelligence has said the program just doesn’t work.

Despite these revelations, numerous hearings, and board reviews, almost nothing has changed.

Last month, the Obama administration sought, and received, a renewal of the bulk surveillance program by the secret Foreign Intelligence Surveillance Court (FISC). In May, the House of Representatives passed a “reform” bill so full of holes and weak transparency provisions that it reads as an endorsement of NSA surveillance. Any hope for real reform lies with the Senate’s USA Freedom Act. The bill’s measures—a long way from perfect—are aimed at ending the domestic bulk surveillance program and empowering special privacy and civil liberties advocates to appear before the FISC. As of today, the bill still hasn’t made it out of the Senate Judiciary Committee.

In other words, in a moment with the country engaged and the world watching, when Congress has the potential to see the most substantial intelligence reform enacted since the 1970s, the Senate has left its work down to the last minute.

Congress’ failure to roll back mass surveillance means the public must look outside new laws and congressional oversight to protect privacy. Snowden recently urged individuals and companies to do what they can to encrypt communications and records to protect privacy.

Apple and Google’s announcement that its phones will now be encrypted by default are great and welcome steps to protecting privacy. These steps are necessary, but voluntary encryption may never be enough. As long as our intelligence agencies collect our records without a warrant, the vast trove of data we entrust to banks, telecom companies, insurance providers, hospitals, and others won’t be safe.

In a moment with the country engaged and the world watching, the Senate has left its work down to the last minute.

The House’s disingenuous “reform” bill and the Senate’s lackadaisical approach to its most important responsibilities are a clear win for the surveillance state. If Congress does not pass reform this session, the PATRIOT Act will come up for reauthorization next year. Unlike past reauthorizations by Congress, next year’s will mean a wholehearted embrace of the surveillance state by our representatives.

Ordinary citizens, activists, and the technology community must join together now for the coming PATRIOT Act fight, and work to roll back the surveillance state and restore our freedoms by acting at the local, state, and national levels. We must make it clear through concrete action that a free Internet, free speech, and privacy are rights that we intend to protect for everyone.


Jesselyn Radack represents NSA whistleblowers Edward Snowden and Thomas Drake, and is the director of National Security & Human Rights at the Government Accountability Project, the nation’s leading whistleblower organization.

Illustration by J. Longo