Fight over surveillance reform in critical phase

The headlines were predictably lurid:

NSA reform dies in the Senate

USA freedom act fails to move forward … for incredibly stupid reasons

Congress has killed NSA reform

Civil liberties groups vow to fight on after Senate kills NSA reform bill

So are those headlines accurate? Are prospects for reforming NSA surveillance authorities history?


What happened on the Senate floor recently is what often happens on the Senate floor: Senate surveillance hawks rounded up just enough votes to procedurally kill a bill that should have been brought up under a genuinely open process.

The problem is that NSA reform advocates could write the tightest possible authorizing language imaginable, and NSA’s lawyers — with help from colleagues at the Department of Justice and likely the Office of Legal Counsel — would find a creative way to effectively evade any proposed legislative restrictions, unless those restrictions were outright prohibitions, backed up with the threat of funding cuts. And that brings me to the opportunity.

On June 19, the House passed the only real restrictions on NSA activities in the post-Snowden era. They came in the form of an amendment to the fiscal year 2015 Defense Department

Appropriations bill (HR 4870) offered by Reps. Tom Massie, R-Kentucky, Zoe Lofgren, D-California, Rush Holt, D-New Jersey, Ted Poe, R-Texas, and about a dozen others from both sides of the aisle. That two-part amendment is as simple as it is clever.

First, it prohibits funding for any searches of the FISA Amendments Act Sec. 702 database — the one containing the contents of the emails and other stored communications of American citizens — in the absence of an ongoing investigation against a U.S. person per other FISA authorities.

Second, it prohibits the government from spending taxpayer money to pressure technology companies into building flawed encryption or other “back doors” into their products to facilitate U.S. government surveillance.

Next June, three key

Patriot Act authorities are set to expire: the controversial Sec. 215 “metadata” collection program, the so-called “lone wolf” provision, and “roving wiretap” authority.

It is this last provision that Intelligence Community insiders fear losing the most; and that fear and the ticking clock are what give NSA surveillance reform advocates the wedge issue they need to get the concessions necessary to rein in NSA’s most questionable collection activities and prevent further harm to America’s technology sector and its citizens’ rights.

Far from being over, the fight over NSA surveillance reform is entering a new and critical phase.

Patrick G. Eddington is policy analyst in Civil Liberties and Homeland Security at the CATO Institute, a libertarian think tank. Send comments to