Congress Gets Serious About Government Surveillance

By Chris Finan, President of the American Booksellers Foundation for Free Expression

Edward Snowden’s revelations are beginning to have consequences.

During a press conference on Friday, President Obama acknowledged that Snowden’s leak of classified documents in June had raised legitimate questions about the National Security Agency’s collection of the telephone records of people who are not suspected of wrongdoing, including millions of Americans. He even praised civil libertarians as “heroes” for attempting to prevent government surveillance from eroding civil rights.

“Does this mean that Snowden is a hero?” a reporter asked.

President Obama rejected the idea and again defended the NSA program as constitutional and necessary. But the president’s concessions to critics demonstrate how the political ground has shifted in recent weeks.

In the immediate aftermath of the NSA revelations, it appeared that Americans might do what the president and leaders of Congress were urging — accept the agency’s program as another necessary compromise of our privacy in order to ensure that we are protected against terrorism.

But Americans have demonstrated concern about government surveillance before. A little more than a year after the 9/11 attacks, the Bush administration introduced two programs to enhance national security. Operation TIPS would have enlisted the transportation and public utilities industries in a national terrorist watch, while a Pentagon program, Total Information Awareness, envisioned the creation of a government database containing all the personal information that was available on the Internet.

Few people liked the idea of being spied on by letter carriers and meter readers or having their Internet records collected by the government. A national poll asked, “To prevent terrorism, should the government violate your civil liberties?”  Sixty-two per cent of respondents said “no.”  Congress rejected both programs.

The NSA phone record collection program appears to have reawakened fears about the loss of privacy. Members of Congress have introduced 25 bills that address various issues raised by the controversy. Senators Bernie Sanders (I-VT), Patrick Leahy (D-VT), and others have introduced bills that would restrict searches under Section 215 of the Patriot Act, the authority the government is using to justify the phone information collection program. There is also legislation requiring more transparency in the conduct of national security investigations, including regular reporting of the type and number of secret searches. Some legislators want to reform the Foreign Intelligence Surveillance Court, which approved the NSA telephone surveillance.

Congressional concern reached a peak late last month when Rep. Justin Amash (R-MI) introduced an amendment to an appropriations bill that would have ended the phone records collection program. Given little chance of passage in the beginning, the amendment quickly gained support, forcing the Obama administration and the leaders of the House and Senate to fight hard to prevent its passage.

In the end, the Amash amendment was narrowly defeated. But it drew strong support from both parties. More than 200 liberal Democrats and libertarian Republicans defied their party leaders to vote for the amendment. It fell just 12 votes short of passage.

The defeat of the Amash amendment recalled an earlier battle to amend Section 215. In 2004, Sen. Sanders, then a House member, attempted to add the Freedom to Read Protection Act to an appropriations bill. The Sanders amendment, which had the strong support of the American Booksellers Association and the Campaign for Reader Privacy, would have restored the protections for reader privacy that were eliminated by Section 215. Like the Amash amendment, it failed on a close vote. But it demonstrated growing support for safeguarding personal privacy. When the Sanders amendment was offered again the following year, it passed the House.

The Obama administration recognizes that its strategy for reassuring the public has failed. At his press conference last week, the president said he would take a number of steps to regain the trust of Americans, including providing more oversight, transparency and, possibly, constraints on the phone collection program; steps to ensure that the Foreign Intelligence Surveillance Court is not simply a rubber stamp for the intelligence agencies; and a review of surveillance technologies by outside experts, with the goal of improving privacy protections.

All of these steps are welcome. But President Obama is clearly not ready to embrace the solution that booksellers and other critics of the Patriot Act have been advocating for more than a decade: amending Section 215 to eliminate the government’s authority to search the records of people who are not suspected of wrongdoing.

A real battle is brewing. It may be our best chance yet.

For more information about ABFFE and its mission is to promote and protect the free exchange of ideas, visit abffe.org or e-mail Chris Finan.