Last week, the House of Representatives passed the bill called The USA Freedom Act, 303 votes to 121. Following a series of amendments, the bill as it passed in the end contained much weaker reforms than even the very modest ones it originally proposed. The Chair of the Judiciary Committee’s manager’s amendment removed two-thirds of its substantive reforms; the Chair of the Intelligence Committee and the White House worked hard to remove as much as possible of what remained, leaving a shell that will still permit mass surveillance.
The Fourth Amendment is clear: Mass surveillance is unconstitutional. A government search is unreasonable, and therefore unconstitutional, if it is not authorized beforehand by a warrant issued by a judge, on the basis of “probable cause” of involvement in an actual crime, supported by an “oath or affirmation, and particularly describing” the “persons or things to be seized.”
That’s what ought to happen. This bill, on the other hand, would allow government searches of millions of innocent people’s data and movements, not based on probable cause or even reasonable suspicion of their personal involvement in a crime, but simply on any “selection term” vaguely associated with a target of surveillance. The “selection term” could be as broad as the government likes, covering, for example, everyone born in Hawaii, or everyone with the middle name Hussein. The argument for this “reform” that supporters are touting is that this is better than the current government practice of collecting everything with no selection term at all. While that’s true, it misses the larger point. The standard is individualized probable cause warrants, not “whatever is most convenient for the NSA.” A standard that can be redefined at will is marginally – if at all – better than having none.
As a terrible coda, the bill’s last section extends out the sunset of crucial parts of the abusive PATRIOT Act from 2015 all the way through till 2017. Apparently, fourteen years of “emergency” privacy-violating legislation is still not enough to defeat the people who attacked us on 9/11, and we need sixteen. Given this extension, were this bill as it currently exists to be signed into law, it would be a net negative for the Fourth Amendment.
The only merit in the bill having passed is that it provides something with which the Senate’s superior version of the USA Freedom Act can be reconciled in conference. We urge the Senate, and especially the Judiciary Committee, to fight hard for the Fourth Amendment in the next few months by advancing as strong a bill as possible – much stronger than this one. The USA Freedom Act, in its original form, was popular enough in the House to have passed unamended, had it been allowed to come to the floor. In the Senate, the same may well be true, and our next steps on Capitol Hill will be to work to make that happen.
When we look back in a generation at the era of our out-of-control surveillance state, we will wonder why we didn’t take the Fourth Amendment as seriously as our Founders took it. We will feel shame that we were willing to sell our Bill of Rights in an attempt to thwart the same terrorists said to be attacking it. The sooner we replace this act with actual reform, the sooner our out-of-control surveillance state will be finally be a thing to look back on.