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Why Is National Security Agency Reform Stalling?

Privacy has a branding problem. And until we address that, your personal data is going to be up for grabs.
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NSA headquarters building in Fort Meade. (Photo: Public Domain)

NSA headquarters building in Fort Meade. (Photo: Public Domain)

On November 18, the optimistically named USA Freedom Act was killed in the Senate, falling two votes short of the 60 required to advance the bill to the floor. Republicans led the filibuster of the act, which is meant to push forward meaningful National Security Agency reform following the Edward Snowden leaks over the past year. Despite a broad bipartisan coalition as well as private technology companies pledging support for the bill, progress seems to have stalled.

The USA Freedom Act once had a measure of momentum. It passed the House of Representatives in May, though in a version that had been “watered down,” says Harley Geiger, senior counsel at the Center for Democracy and Technology. Senator Patrick Leahy (D-Vermont) later introduced the new, strengthened version of the bill that just got stuck. It had seemed like “a good first act” on the way to full reform, Mark Jaycox of the Electronic Frontier Foundation told me before the filibuster.

But politics and current events got in the way. An atmosphere of paranoia has been ushered in by open fighting with ISIS, mounting anxiety over cyber warfare, and even the events of Ferguson, Missouri. What’s stalling the USA Freedom Act is not the impact of its policies, which were vetted by a range of experts, but its context. Republicans are openly building a narrative that profits from fear to dampen enthusiasm for surveillance reform.

The failure of the act "virtually guarantees that the NSA’s mass domestic surveillance of Americans will continue for the time being."

In a statement after the filibuster, Senator Leahy placed the blame squarely on conservatives. “Senate Republicans have failed to answer the call of the American people who elected them, and all of us, to stand up and to work across the aisle,” he said in a statement. “Once again, they reverted to scare tactics rather than to working productively to protect Americans’ basic privacy rights and our national security.”

While Leahy’s release does have the ring of across-the-aisle shade-throwing, it’s easy to find evidence of Republicans’ specious linkage of NSA reform to terror. In fact, we can hear it straight from the mouth of Utah Senator Orrin Hatch, the head of the GOP High Tech Task Force! In an interview following the filibuster, Hatch made the connection explicit. Of the NSA’s ability to collect phone metadata on Americans in bulk, a capability that the USA Freedom Act specifically targeted, Hatch argued that “people who want to lessen those powers are really doing this country a great disservice because we are going to have more terrorism acts.”

The fear-mongering that Leahy pointed out is blatant. “ISIS and Al-Qaeda ... say they’re coming to America and there’s going be blood in our streets,” Hatch said. “Without the metadata collection”—that is, the mass storage of information about the digital habits of American citizens without specific cause and without relation to specific investigations—“we will not have the ability to try and catch these people.”

Hatch not only exaggerates the impact of the USA Freedom Act, which could not possibly halt surveillance of targeted individuals, American or not, he downplays the need for any dialogue surrounding it. This commitment to tamping down debate is increasingly hazardous given the coming Republican-controlled Congress, which will no doubt toe the anti-reform line set by Hatch and others.

“We think the Senate made the wrong decision in voting against the motion to proceed,” Geiger says. “The motion would have allowed the bill to come to the floor for debate and amendment, where the bill could have been improved.” Instead, the failure of the act “virtually guarantees that the NSA’s mass domestic surveillance of Americans will continue for the time being,” Geiger says.

In the Guardian, Evan Greer argued that the act “failed because it was a weak reform bill that didn’t accomplish enough good to excite a grassroots base that would fight for it and ensure victory.” But blaming the structure of the bill ignores the incorrect but widely held perception that any limiting of the NSA’s authority will result in American vulnerability. This is privacy’s branding problem—the conflation of individual privacy with the privacy of specific targets, passive surveillance of the innocent with active surveillance of suspects. These two groups don’t belong under the same legal structure.

Laws like the USA Freedom Act ensure that the NSA maintains its ability to carry out digital surveillance on targets that it has obtained permission to track, for better or worse, while restricting its ability to access data from American citizens on a massive scale. It’s the minimum amount of reform needed after the Snowden leaks, and yet action isn’t being taken.

Combating this political reticence likely requires changing attitudes about and education on privacy as a whole, better explaining to the American public what encrypted data means and how the NSA can or can’t access their digital tracks. Companies like the messaging service WhatsApp, which is owned by Facebook, are already building in default encryption to their apps. But politicians should be putting users first as well.