The Senate version of the USA FREEDOM Act is a problematic answer to an enormous problem. Given the problems with the bill, and the issues the bill does not address, Sunlight is joining with a diverse group of other organizations from the left, right and middle — as well as a number of intelligence community whistleblowers like Daniel Ellsberg and Bill Binney — to oppose it.
While the letter lays out our concerns with the bill, many of which are expounded upon by surveillance expert Marcy Wheeler, the following is a short-form: The USA FREEDOM Act legalizes currently illegal surveillance activities, grants broad immunity to corporations that are undercutting our right to privacy, fails to reform other authorities used to collect bulk/bulky information about Americans and everyone else in the world, and reauthorizes the PATRIOT Act for another 2.5 years. The PATRIOT Act reauthorization catches many by surprise, so if you want to verify this, just look at Section 701 of the bill. It’s also the last point in Sen. Leahy’s own outline of USA FREEDOM.
Sunlight’s biggest problems arise from arguably the strongest advance made in the bill — the transparency improvements. While it makes some steps forward, they deliberately exempt particular kinds of searches, while not addressing the other legal justifications used by the intelligence community. For instance, the FBI is exempted from reporting its back door searches of Americans’ information — that information that is ‘incidentally collected’ by dragnet surveillance.
This is not transparency. This is, at best, an opportunity for the intelligence community to show us only what they want to show us. Such a misleading picture is as likely to misinform public debate as it is to reveal anything at all. Even the increased transparency within the FISC, the secret court where the intelligence community goes for approval of some of its surveillance, will offer only a limited view into secret interpretations of law. Considering there is at best an attenuated connection between democratic will and the will of the few judges sitting on this court, the value of this is similarly minimal and misleading. And, to boot, there aren’t any protections for whistleblowers — the very people who have risked everything to give the public almost all the information we have — many of whom are joining Sunlight’s call for Congress to reject the USA FREEDOM Act, and America’s demand for a better solution.
A number of other organizations, including our respected colleagues at the ACLU and EFF, have thoughtfully come to a differing opinion, namely that the bill is a modest first step forward. Reasonable people can disagree here — but if the public interest sphere isn’t sure what this bill means (what’s a “direct connection”?), imagine what the intelligence community will do with it.
It’s also worth noting here that our civil liberties and transparency advocates on the Hill worked, by all accounts, tirelessly on this bill. I am deeply appreciative of their efforts — and so should everyone else be. This is, unfortunately, a different question than whether or not to endorse this bill as the right next step. Given all USA FREEDOM sacrifices in its bid for modest reforms and its extraordinary potential to create a misleading view of what is going on behind closed doors and in secret courts, we cannot so embrace it. Indeed, the intelligence community’s past approach to ambiguous and weak laws underscore that this one threatens to do more harm than good.