Transparency Missing from House NSA Reform Bill
by Gavin Baker, 5/9/2014
On May 8, the House Intelligence Committee approved the USA FREEDOM Act, which would limit the National Security Agency's (NSA) ability to spy on Americans through their phone records. A day earlier, the House Judiciary Committee approved the same bill, setting the stage for consideration by the full House.
While the bill would take important steps to reform surveillance by the NSA, important transparency provisions were dropped from the legislation. As our colleagues at OpenTheGovernment.org, the Project On Government Oversight, and the Constitution Project explain, “The bill omits critical government reporting requirements included in the original USA FREEDOM Act.” In particular:
The original USA FREEDOM Act required public annual reports from the government that included the total or a good faith estimate of the number of individuals and U.S. persons included in various domestic surveillance activities. It also required public reports every six months on the total number of requests using National Security Letters.
But if the bill reins in surveillance, one might ask, why is transparency still necessary?
Here’s the answer: the NSA was never supposed to be doing this spying in the first place. Rep. Jim Sensenbrenner (R-WI), an author of the 2001 Patriot Act – the law that paved the way for the NSA’s expansive surveillance activities – has said that bulk collection was “never the intent” of that law. (And as the author, he would know!) Instead, the NSA subverted the law – and because it was done in secret, the public was none the wiser, prior to Edward Snowden’s revelations last year.
Given this history of secret reinterpretation of the law, we should demand greater openness from the NSA and the surveillance system. Without such transparency, OpenTheGovernment.org executive director Patrice McDermott points out, “we cannot simply trust that the program has ended.”
In addition to stripping the critical transparency requirements from the bill, the House committees also nixed the creation of a strong public advocate at the secret federal surveillance court, who could push for disclosure from the inside. The Senate version of the bill, which has not yet been considered in committee, retains these provisions.
The NSA was permitted to overreach because it operated under veil of secrecy. If we don’t lift that veil, what’s to stop it from happening again?
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