Thoughts on tomorrow's vote on the Freedom Act extension

Thoughts on tomorrow's vote on the Freedom Act extension

The U.S. Senate is scheduled to vote tomorrow on whether to extend the USA Freedom Act. The House quickly approved an extension last week even as coronavirusmania started running wild all over the federal government. The extension repeals the NSA’s data collection program, something the agency claims already ended. Independent advisers can also review requests by law enforcement on FISA warrants, provide advice, and identify concerns with the warrant request.

Questions remain on whether the USA Freedom Act will reform the FISA process or allow it to carry on with minor changes to the process. It appears Congress wants the latter more than the former given House Judiciary Committee Chair Jerry Nadler’s decision to call off a vote on the bill last month. He and Intelligence Committee Chair Adam Schiff disagreed with multiple proposed amendments by Congresswoman Zoe Lofgren that changed the FISA process more including increased Fourth Amendment protections in the U.S.

Senate leadership is unlikely to go for more reform given the interaction on Thursday between Senator Mike Lee and Senate Intelligence Committee Chair Richard Burr. Lee attempted to get a 45-day extension of the current FISA rules so the Senate could offer up amendments to the House-passed bill. Burr objected to the request, not once, but at least four times to a simple unanimous consent of the extension.

It was during this debate when Burr offered up a rather curious comment regarding Executive Order 12333 used by the intelligence community to collect information.

The statement elicited alarm from FISA reform advocates.

“If that’s true, and the executive branch truly believes it can conduct warrantless surveillance on Americans via Executive Order 12333, that ought to prompt questions from every member of Congress and the public on what, if any, limits the executive branch believes exist on their power to spy domestically,” FreedomWorks Senior Policy Analyst Josh Withrow told me in an email. “FISA was passed into law very specifically to prevent the kind of lawlessness that Senator Burr casually implied on the floor of the US Senate.”

Mark Jaycock at Electronic Frontier Foundation previously wrote about the dangers of EO 12333 in 2014:

The Executive Order purports to cover all types of spying conducted with the President’s constitutional powers—including mass spying. That’s important to note because some of the spying conducted under EO 12333 is reportedly similar to the mass spying conducted under Section 702 of the FAA. Under this type of spying, millions of innocent foreigners’ communications are collected abroad, inevitably containing Americans’ communications. In the Section 702 context, this includes techniques like Prism and Upstream. While we don’t know for sure, the Executive Order probably uses similar techniques or piggybacks off of programs used for Section 702 spying.

The second section of the EO partly covers mass spying by establishing what information intelligence agencies can collect, retain, and share about US persons. The current guidelines, the United States Signals Intelligence Directive SP0018, also known as “USSID 18,” are (just like the “minimization procedures” based off of them) littered with loopholes to over-collect, over-retain, and over-share Americans’ communications—all without a probable cause warrant or any judicial oversight.

Just slightly troubling, to say the least.

It’s time for Congress to go further than the banal limits in the USA Freedom Act. Repeal EO 12333. The White House would likely veto any repeal, however, Congress could always vote to override. The next step is real limits on what data the intelligence community can collect, especially when it comes to the data of American citizens. After all, the Constitution does require Congress to set all rules of governance – not the presidency through executive fiat.

Lee’s desire for a 45-day extension to review the USA Freedom Act makes sense. The bill is around 50 pages long. Congress is more focused on coronavirus. Let’s review the act and make necessary tweaks to protect Americans and their privacy from intrusive government. Anything else is a dereliction of duty by Congress.

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