At this point in the election cycle, 99% of the oxygen in the room is taken up by the presidential campaigns. But Massachusetts has nine House members and two Senators, and their views on mass surveillance matter. Next year, the main authority for the government’s mass surveillance programs, Section 702 of the FISA Amendments Act of 2008, expires, and Congress will crucially shape what comes next. This pair of articles from Just Security give you an idea of what’s at stake:
The Democrats have a lock on the congressional delegation, but this is an issue where elected officials within the same party often differ sharply; so without further ado, here’s where they stand: (For the full list for all states, check out Decide The Future, our scorecard site.)
UPDATE: The Mass Pirates were kind enough to put together a summary of the grades below.
Let’s go alphabetically, and start with Rep. Mike Capuano, whose district covers Allston-Brighton, the Back Bay, Chelsea, Everett, Fenway, Hyde Park, Mattapan, Readville, Randolph, Roxbury and Somerville. Capuano’s record on mass surveillance issues is excellent (DTF rating: A+). The only Massachusetts Representative to join the new Fourth Amendment Caucus as a founding member, Capuano’s voting record on mass surveillance has been consistently in favor of the strongest possible changes. He cosponsored the Surveillance State Repeal Act, which would have repealed the PATRIOT Act and Section 702 and undone most of the post-9/11 degradations to our civil liberties. He voted to defund and make illegal so-called “backdoor searches” of Americans’ data. After supporting the original USA FREEDOM Act, he voted against its final passage because it didn’t go far enough. He supported requiring a warrant for emails over six months old, and opposed the expansion of cyber-surveillance in the name of improving “cybersecurity”. This courageous record is the kind of thing we like to see from our elected officials.
Rep. Katherine Clark, whose district covers Metrowest towns including Arlington, Ashland, Belmont, Cambridge, Framingham, Holliston, Lexington, Lincoln, Malden, Medford, Melrose, Natick, Revere, Sherborn, Southborough, Stoneham, Sudbury, Waltham, Watertown, Wayland, Weston, Winchester, Winthrop and Woburn, is a former prosecutor and state senator, who took a strong interest in email privacy issues when in the state legislature. She has carried that interest into her work in Congress, building up a record of positive votes on this issue (DTF rating: A+). Though she has not taken an interest in the Surveillance State Repeal Act, perhaps thinking it would go too far, and has not yet joined the Fourth Amendment Caucus, her votes mirror Capuano’s, gaining her also a DTF rating of A+. However, an element to watch is that she is especially concerned about online threats and harassment, and has introduced bills to bulk up funding for training for police departments to deal with these issues. As civil liberties folks, our concern is that overly broad efforts to deal with online threats might end up in a place that is intrusive and fails to respect people’s privacy in these difficult situations. For example, students should not be required as a matter of policy to share their personal social media identifiers with their school.
The record of Rep. Bill Keating, whose district covers the Cape and Islands, Plymouth and New Bedford, is mixed (DTF rating: C). He sits on the Homeland Security Committee, which for other legislators seems to influence their vote in a direction unfriendly to civil liberties. A former state rep and district attorney, Keating supported “cybersecurity” legislation, and opposed defunding the government’s Section 702 surveillance programs (PRISM and Upstream); however, he supports banning “backdoor” searches on US persons. He voted for the USA FREEDOM Act, which purportedly reformed the small amount of government surveillance that occurs under Section 215 of the PATRIOT Act, and continued to support it even after its reforms were watered down to the point where there was much debate about whether it would do more harm than good to pass it. Rep. Keating’s Republican opponent, Mark Alliegro, argues for “invest[ment] in better Intelligence, Surveillance, and Reconnaissance capabilities”, which does not suggest that he will offer surveillance reform-minded voters a better alternative.
Rep. Joe Kennedy is the Massachusetts delegation’s strongest supporter of the surveillance state (DTF rating: F). His district centers on Attleboro and also covers Newton, Taunton, and northern Fall River. Kennedy’s voting record shows a high level of comfort with Section 702 surveillance, consistently voting against measures to rein it in, and with the government’s “cybersecurity” agenda. He is ambitious for higher office, and unwilling to buck party leadership. He would perhaps have been content with “reform” even weaker than the USA FREEDOM Act, based on his vote for a weaker version of it in 2014. There is no evidence that his Republican opponent, Dave Rosa, is better on these issues – Rosa, while campaigning generally on a pro-military platform as an Iraq War veteran, has said nothing about mass surveillance in particular.
Rep. Stephen Lynch‘s district covers the eastern part of Boston, the South Shore and Brockton. His record is strong on surveillance issues (DTF rating: A), and differs from those in the A+ zone mainly because, rather than opposing government-mandated information sharing for “cybersecurity” wholesale, he supported a less-pernicious-than-the-other-options bill in the House called the “National Cybersecurity Protection Advancement Act”.
As befits someone who has made privacy one of his leading issues since the 1970s, Sen. Ed Markey has a very strong record on surveillance issues (DTF rating: A+). Over the last couple of Congresses, there have generally been more opportunities for Senators than for Representatives to display support for our cause. He voted against “cybersecurity” legislation, and for four failed amendments that would have dealt with some of its more glaring flaws. He deeply opposes the PATRIOT Act, and appears especially concerned that the FISA court is a rubber stamp rather than a mechanism of meaningful oversight for the intelligence agencies. He has also gone beyond merely reacting to votes as they come up, by cosponsoring the FISA Courts Reform Act, the Intelligence Oversight and Surveillance Reform Act and ECPA reform, and being willing to reach across the aisle to Republican supporters of surveillance reform. However, he does not serve on the key committees for this issue (Intelligence, Armed Services, Homeland Security, Judiciary), and achieves much of what he can for privacy through his work on the Commerce Committee.
Rep. Jim McGovern, from his central Massachusetts district covering Worcester, Leominster, Greenfield and Northampton, has been a strong advocate for reform of mass government surveillance (DTF rating: A+). His voting record is identical to Rep. Capuano’s on this issue, and Rep. McGovern supported the Surveillance State Repeal Act as well. In context, then, it’s a little surprising that Rep. McGovern has not yet joined Rep. Capuano as a member of the Fourth Amendment Caucus; perhaps we will see that move from him in future.
Former Marine Rep. Seth Moulton serves on the Armed Services Committee and has the second-worst rating of any member of the Massachusetts delegation (DTF rating: D-). His district covers much of the North Shore and Essex County. He seems to have tried hard, during a period of relatively intense debate over surveillance, to avoid going on the record on surveillance matters, which may have saved him from an F rating. His extant votes are: A single vote on final passage of the much-watered-down USA FREEDOM Act, in favor, at a time when the only alternative to voting in favor was to let Section 215 of the PATRIOT Act disappear completely; a No vote on an amendment to defund surveillance under Section 702 (the Upstream and PRISM programs); and votes in favor of final passage of the leadership-supported “cybersecurity” bills in the House. Moulton appears to believe that too much focus on civil liberties will deprive government of the “resources it needs to protect us”, and that there is a “difficult balance between national security and privacy rights.” Moulton is one of five Massachusetts congressmembers running unopposed this fall.
Rep. Richard Neal, whose district covers Holyoke, Pittsfield, Chicopee and Massachusetts’ far west, is another A+ on the DTF scorecard. His support for the original surveillance reforms of the USA FREEDOM Act shifted to opposition as it weakened; he cosponsored the Surveillance State Repeal Act, and has consistently opposed surveillance programs under Section 702. He is not a member of the Fourth Amendment Caucus, and he also supported House “cybersecurity” legislation.
Rep. Niki Tsongas, representing the people of Lowell, Lawrence and the towns northwest of Boston, also gets an A+ in the DTF scorecard, thanks to her solid support for surveillance reform. She has consistently voted to reform or defund Section 702 surveillance and was suspicious of “cybersecurity” data collection. She consistently supported all versions of the USA FREEDOM Act, strong and weak-to-useless, and cosponsored reform of the Electronic Communications Privacy Act to strengthen warrant protections for email.
Progressive standard-bearer Sen. Elizabeth Warren‘s core interest in office has been consumer protection and financial malfeasance. On surveillance, she has been good (DTF rating: A+), but not closely focused on the issue. She voted against the potentially helpful Coons amendment to CISA, and opposed “cybersecurity” legislation overall. She opposed mandated data retention in the USA FREEDOM Act, and generally supported, though did not lead, surveillance reform efforts.
Overall, with 6 A+ ratings and 1 A rating, Massachusetts has one of the better congressional delegations on this issue (the reverse of Alabama, where 6 legislators, including Republicans and Democrats, get an F, and one gets a D-). However, this cycle it would have been better to see primary challengers from the left on these issues to Kennedy and Moulton in particular, and in the general to see more libertarian-minded Republicans coming through with better positions on constitutional liberties; and even within our A+ legislators, it would be great to see more leadership in terms of joining the Fourth Amendment Caucus and cosponsorship of strong reform measures.