What the defeat of the NSA ‘reform’ bill means

Last evening the US Senate failed to break a filibuster of the “USA Freedom Act”, the now-common grandiose patriotic name given to legislation that usually signals the opposite of what its intent is. This was supposed to reform the abuses of the intelligence agencies that have been revealed by Edward Snowden and it did tinker with it at the edges but the fact that the bill was supported by the Obama administration should be a good clue that it was pretty much a toothless tiger.

Glenn Greenwald comments on it.

There were some mildly positive provisions in the USA Freedom Act: the placement of “public advocates” at the FISA court to contest the claims of the government; the prohibition on the NSA holding Americans’ phone records, requiring instead that they obtain FISA court approval before seeking specific records from the telecoms (which already hold those records for at least 18 months); and reducing the agency’s “contact chaining” analysis from three hops to two. One could reasonably argue (as the ACLU and EFF did) that, though woefully inadequate, the bill was a net-positive as a first step toward real reform, but one could also reasonably argue, as Marcy Wheeler has with characteristic insight, that the bill is so larded with ambiguities and fundamental inadequacies that it would forestall better options and advocates for real reform should thus root for its defeat.

When pro-privacy members of Congress first unveiled the bill many months ago, it was actually a good bill: real reform. But the White House worked very hard— in partnership with the House GOP—to water that bill down so severely that what the House ended up passing over the summer did more to strengthen the NSA than rein it in, which caused even the ACLU and EFF to withdraw their support. The Senate bill rejected last night was basically a middle ground between that original, good bill and the anti-reform bill passed by the House.

The entire system in D.C. is designed at its core to prevent real reform. This Congress is not going to enact anything resembling fundamental limits on the NSA’s powers of mass surveillance. Even if it somehow did, this White House would never sign it. Even if all that miraculously happened, the fact that the U.S. intelligence community and National Security State operates with no limits and no oversight means they’d easily co-opt the entire reform process. That’s what happened after the eavesdropping scandals of the mid-1970s led to the establishment of congressional intelligence committees and a special FISA “oversight” court—the committees were instantly captured by putting in charge supreme servants of the intelligence community like Senators Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and “Dutch” Ruppersberger, while the court quickly became a rubber stamp with subservient judges who operate in total secrecy.

Ever since the Snowden reporting began and public opinion (in both the U.S. and globally) began radically changing, the White House’s strategy has been obvious. It’s vintage Obama: Enact something that is called “reform”—so that he can give a pretty speech telling the world that he heard and responded to their concerns—but that in actuality changes almost nothing, thus strengthening the very system he can pretend he “changed.” That’s the same tactic as Silicon Valley, which also supported this bill: Be able to point to something called “reform” so they can trick hundreds of millions of current and future users around the world into believing that their communications are now safe if they use Facebook, Google, Skype and the rest.

So has Snowden achieved nothing? Supporters of the national security state will argue thus but Greenwald says that the real impact has been outside of the corrupt US government, and changes are coming in four forms.

  1. Individuals refusing to use internet services that compromise their privacy.
  2. Other countries taking action against U.S. hegemony over the internet.
  3. U.S. court proceedings.
  4. Greater individual demand for, and use of, encryption.

He concludes “The changes from the Snowden disclosures are found far from the Kabuki theater of the D.C. political class, and they are unquestionably significant. That does not mean the battle is inevitably won: The U.S. remains the most powerful government on earth, has all sorts of ways to continue to induce the complicity of big Silicon Valley firms, and is not going to cede dominion over the internet easily. But the battle is underway and the forces of reform are formidable—not because of anything the U.S. congress is doing, but despite it.”

Trevor Timm suggest that the failure to pass this bill has a silver lining.

But here’s the real reason the the USA Freedom Act’s failure could backfire on its biggest supporters: As I’ve mentioned before, Section 215 of the USA Patriot Act – the law that was re-interpreted in secret to allow for mass phone metadata surveillance in the first place – comes up for renewal next summer. It has to be reauthorized before June, or it will disappear completely.

And even though the Republicans will be in control next year, they won’t be able to pull the same stunts they did on Tuesday. Everyone knows getting “no” votes is a lot easier than getting a “yes”. And this time they’ll need 60 “yes” votes, plus the support of the House of Representatives, where we know already there are likely enough votes to kill an extension of the Patriot Act.

Let’s hope so. But I am not so sanguine. When it comes to protecting and expanding the national security state, bipartisan cooperation miraculously appears.


  1. astrosmash says

    Well the easy sell to congress would be this: The NSA has YOUR phone and computer records stored TOO…good thing you have nothing to hide, otherwise you’d be screwed along with the rest of us! (wink, wink)

  2. doublereed says

    The ACLU was in support of the USA Freedom Act, so I’m inclined to think it was a at least a stepping stone to reining in the National Security State (although I don’t know how it’s been changed and altered).

    Tomorrow, there is also a committee hearing about changes to the Freedom of Information Act, which might prove very positive.

  3. Mano Singham says


    As Greenwald says, the ACLU supported the initial version but withdrew their support after the White House modified it.

  4. Dunc says

    Well the easy sell to congress would be this: The NSA has YOUR phone and computer records stored TOO…good thing you have nothing to hide, otherwise you’d be screwed along with the rest of us! (wink, wink)

    I think that would be likely to have the exact opposite effect to the one you intend. Everybody has something to hide.

    The only reason I don’t assume that the NSA routinely resorts to outright blackmail of legislators is that I don’t think they need to bother.

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