The House just voted to pass the USA FREEDOM Act, which reauthorizes and alters Section 215 of the PATRIOT Act, with a vote of 338 to 88. It’s being depicted as a landslide in favor of reform. It is, sadly, anything but. This is why.
Last week’s ruling by the 2nd Circuit fundamentally changed the Congressional debate. Senator McConnell, the Majority Leader, had been pushing for a straight reauthorization of Section 215 of the PATRIOT Act. But the 2nd Circuit ruling said, among much else, that if Congress did a straight reauthorization of the same language, then their ruling that mass metadata surveillance was unlawful would still stand. In other words, straight reauthorization will no longer get surveillance defenders what they want. So, as the next best thing, the administration and the intelligence committees swung behind the USA FREEDOM Act. This Act would impose token limits on how much they can collect with a single request, but would modernize intelligence collection for a world where much communication is not an actual phone call. As a compromise between moderate surveillance reformers and the intelligence community, it actually offers a lot that the intelligence community likes. So it looks much better to them at this point than straight reauthorization (=no mass metadata surveillance under Section 215) or straight sunset (=no mass metadata surveillance under Section 215).
How do we know this happened? We can measure it.
EFF came out last year with a congressional scorecard, grading Representatives on their approach to mass surveillance. Looking at how those Reps voted this time, we can see that the mean grade of those voting for USA FREEDOM was a C. The mean grade of those voting against USA FREEDOM was an A- (full data here). Probably 115 reform-minded Congressmembers felt that USA FREEDOM was enough of a positive step that they voted for it. But the pattern is clear:
Most Yes votes were from surveillance supporters, and the vast majority of No votes were from reformers.
It’s therefore inaccurate for the New York Times and other outlets to depict this as an enthusiastic repudiation of mass surveillance, when in practice USA FREEDOM is emerging as the least-worst alternative for mass surveillance supporters.
Does this mean that Sens. McConnell and Burr, last seen desperately pushing for a straight short-term reauthorization of Section 215, would actually see their agenda advanced better if the USA FREEDOM Act passed? It’s quite possible that they don’t fully grasp the ramifications of a straight reauthorization in the context of the 2nd Circuit ruling. But if they don’t grasp it, the administration and the intelligence community do seem to, and, it appears, pressured Reps to vote accordingly.