UNDER THE RADAR

House FISA Reform Battle Enters Final Stage

Last night, the House Rules Committee made in order one alternative to the HPSCI FISA Sec. 702 reauthorization bill, the USA Rights Act. You can view the Rule here

The bill was originally introduced in the Senate by Ron Wyden (D-OR) and Rand Paul (R-KY). You can view a one-pager on the USA Rights Act here.  

None of this would have happened without the relentless effort of Rep. Justin Amash (R-MI) and a number of his House Freedom Caucus colleagues, who’ve made clear for some time that they would not support the reauthorization of the extremely controversial (and constitutionally dubious) FISA Sec. 702 mass surveillance program in its current form. Amash is an original cosponsor of the House version of the USA Rights Act. 

To be clear, the USA Rights Act is itself a significantly deficient surveillance reform measure. The bill does not require the IC/FBI to purge their databases of data on Americans not the subject of a criminal investigation, nor does it mandate the kind of GAO audits that are necessary to truly help end surveillance abuses. It also accepts the USG framing that 702 is necessary, legitimate, and effective—assertions I’ve challenged previously. 

Despite those serious flaws, the USA Rights Act is a vastly more comprehensive FISA Sec. 702 reform measure than every existing alternative. It restores the 4th Amendment probable cause standard for searches of the data of Americans stored on FBI or IC IT systems, and it makes it easier for innocent Americans to sue the federal government for unlawful spying. And precisely because it would, if enacted, give citizens more tools to discover if they are the targets of unlawful or politically-motivated surveillance, I expect the House GOP leadership to do everything possible to defeat it on the House floor, as will the IC/FBI. Even if the USA Rights Act passes, the House GOP leadership has shown time and again that they are willing to ignore the will of the House and strip out real surveillance reform measures in conference with the Senate, as I’ve explained elsewhere

All of which underscores a point I’ve made for years: traditional advocacy on surveillance issues has generally proven ineffectual in stopping, much less rolling back, post-9/11 surveillance powers that we know have been abused. The reason is simple. The groups that lobby on these issues do not engage in electoral politics—which means politicans can vote for more surveillance powers in the name of “public safety” without fear of organized, targeted political reprisal from Bill of Rights supporters. Until that dynamic changes, enduring surveillance reform will remain elusive.