The Road Less Traveled: Surveillance Reform

Nathan Leamer Policy Analyst, R Street Institute
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Two years ago, major revelations about the National Security Agency’s massive intrusion into the lives of all Americans jumpstarted a renewed national debate about the right to privacy and questions of government intrusion into our personal lives.

The U.S. House of Representatives has echoed this discourse with a series of important votes that address different aspects of the Snowden revelations. The action has showcased dynamic floor debate, where members claimed the need for a new approach. House Republicans and Democrats have shown a commitment to curtail mass surveillance. They came together to carefully deliberate on legislation that will limit or end the NSA’s invasive programs, in an effort to restore Fourth Amendment protections.

The result is a bill that – while it is not perfect and, in many ways, it doesn’t go far enough – would be the first real reform of the Foreign Intelligence Surveillance Act since it was passed in 1978. The USA F Act was carefully constructed to earn support from privacy advocates and the tech community, as well as from many in the intelligence community.

The approach this legislation sets out reflects current public distrust of the NSA. It would end domestic bulk collection of telephone records, increase transparency into the secret FISA Court and implement accountability measures to Congress and the public. Last week, it passed the House overwhelmingly.

The House’s action underscores how little time and attention the Senate has actually paid to the issue. Instead of using open committee and floor debate to adequately deliberate the value of the PATRIOT Act’s surveillance authorities, Senate Republican leadership has pushed to continue the status quo, relying on tired rhetoric that doesn’t hold up to scrutiny.

In theory, the U.S. Senate was designed to consider issues facing the country carefully and with rational debate and discussion. Unfortunately, the Senate has not followed the House’s lead of careful consideration on the right path forward, balancing the need to restore privacy protection with the need to ensure national security.

The Senate failed to reach cloture on a similar version of the USA Freedom Act last November. At the time, then-Minority Leader Mitch McConnell suggested that, in the 114th Congress, they would have full debate with “reasonable consideration by relevant committees.”

Instead of meeting that goal, the Senate Republican leadership held no hearings on either on the USA Freedom Act or proposals to reauthorize the PATRIOT Act in a “clean” fashion. With just days until sunset of the PATRIOT Act’s Section 215, the Senate is finally beginning to work on a solution.

Because of their unwillingness to have a full and open debate, the Senate faces an imminent deadline and limited options. With the House adjourned and content with their reformed extension of the PATRIOT Act, it now seems the only real options for the Senate are to move forward on the House-passed USA Freedom Act or allow the PATRIOT Act expire.

It is up to the Senate whether they are prepared to accept the House-passed bipartisan reform or go forward with an expiration that will turn back the clock on surveillance and security policy back to a pre-9/11 state. The difficulty of the first option grows greater by the hour. So the Senate may choose, by default if nothing else, the latter option. That does have the unique advantage of giving Congress a clean slate to rethink the FISA framework from the ground up for the first time in nearly four decades.

Nathan Leamer is outreach manager and policy analyst at the R Street Institute, a free-market think tank.