Meaningful reform — which was watered down in a recent House vote — would include these steps.
One year ago this month, Americans learned that their government was engaged in secret dragnet surveillance, which contradicted years of assurances to the contrary from senior government officials and intelligence leaders.
On this anniversary, it is more important than ever to let Congress and the administration know that Americans will reject half-measures that could still allow the government to collect millions of Americans’ records without any individual suspicion or evidence of wrongdoing.
It is time to end the dragnet — and to affirm that we can keep our nation secure without trampling on and abandoning Americans’ constitutional rights.
For years, in both statements to the public and open testimony before the House and Senate, senior government officials claimed that domestic surveillance was narrow in focus and limited in scope. But in June 2013, Americans learned through leaked classified documents that these claims bore little resemblance to reality. In fact, the NSA has been relying on a secret interpretation of the USA Patriot Act to vacuum up the phone records of millions of law-abiding citizens. Under a separate program, intelligence agencies are using a loophole in the law to read some Americans’ e-mails without ever getting a warrant.
Dragnet surveillance was approved by a secret court that normally hears only the government’s side of major cases. It had been debated only in a few secret congressional committee hearings, and many members of Congress were entirely unaware of it. When laws like the Patriot Act were reauthorized, a vocal minority of senators and representatives — including the three of us — objected, but the secrecy surrounding these programs made it difficult to mobilize public support.
And yet, it was inevitable that mass surveillance and warrantless searches eventually would be exposed. When the plain text of the law differs so dramatically from how it is interpreted and applied, in effect creating a body of secret law, it simply isn’t sustainable. So when the programs’ existence became public last summer, huge numbers of Americans were justifiably stunned and angry at how they had been misled and by the degree to which their privacy rights had been routinely violated. Inflated claims about the program’s value have burst under public scrutiny, and there is now a groundswell of public support for reform.
Benjamin Franklin once warned that a society that trades essential liberties for short-term security risks losing both. That is still true today, and even the staunchest defenders of mass surveillance concede that reforms are inevitable.
The debate over exactly what reforms should be made is likely to continue for at least the next few years as Americans continue to learn about the scale of ongoing government surveillance activities. As an initial step, we have worked with our colleagues in the House and Senate to build support for a package of real and meaningful changes to the law that would promote the restoration of Americans’ constitutional rights and freedoms, while protecting national security.
This package of reforms includes overhauling domestic surveillance laws to ban the bulk collection of Americans’ personal information and closing the loophole that allows intelligence agencies to deliberately read Americans’ e-mails without a warrant. It includes reshaping the Foreign Intelligence Surveillance Court by installing an advocate who can argue for Americans’ constitutional rights when the court is considering major cases and by requiring that significant interpretations of U.S. law and the Constitution be made public. And it would strengthen and clarify the government’s authority to obtain individual records quickly in genuine emergency situations.
These reforms would erect safeguards against the further erosion of our right to privacy and would ensure greater transparency and openness.
We are encouraged by the broad bipartisan support that this package of reforms has received and by the endorsements from both privacy advocates and business leaders. Accordingly, we are disappointed by the House of Representatives’ recent vote to approve a revised version of the USA Freedom Act, with nearly all of the essential reforms either watered down or removed.
It is even more disappointing, although not surprising, that some of the same officials who were responsible for conducting dragnet surveillance and misleading the public about it are now working to make sure that any attempt at reform legislation is as limited as possible.
Although the bill approved by the House is intended to end bulk collection, we are not at all confident that it would actually do so. The bill would require the government to use a “selection term” to secretly collect records, but the definition of “selection term” is left vague enough that it could be used to collect all of the phone records in a particular area code or all of the credit-card records from a particular state. Meanwhile, the bill abandons nearly all of the other reforms contained in the Senate version of the USA Freedom Act, while renewing controversial provisions of the Patriot Act for nearly three more years.
This is clearly not the meaningful reform that Americans have demanded, so we will vigorously oppose this bill in its current form and continue to push for real changes to the law. This firm commitment to both liberty and security is what Americans — including the dedicated men and women who work at our nation’s intelligence agencies — deserve. We will not settle for less.
Ron Wyden, Mark Udall and Rand Paul are U.S. senators from Oregon, Colorado and Kentucky, respectively. They wrote this article for the Los Angeles Times.
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