NSA Reform: Do You Support The Lesser Of Two Evils, Or Hope For Something Better?

from the not-a-good-situation dept

We wrote yesterday about Congress suddenly lurching forward with two competing NSA reform bills: the USA Freedom Act from Rep. Jim Sensenbrenner and the House Judiciary Committee and the FISA Transparency and Modernization Act from Reps. Mike Rogers and Dutch Ruppersberger and the House Intelligence Committee. As we noted, the USA Freedom Act -- which had been the general consensus choice as the best bill for actually stopping the worst of the worst NSA surveillance (while still not fixing everything) -- was actually being watered down by Sensenbrenner's manager's amendment.

Marcy Wheeler has been digging in and highlighting just how badly the bill has been weakened, and has now started calling it the USA Freedumb Act, noting that it's stripped out nearly all of the good stuff, basically wiping out most of the protections for you and me, but making sure that the telcos are well protected from any lawsuits that might emerge over them handing all of our info over to the government. The bill also wipes out the transparency requirements that the tech companies had pushed strongly for.

The problem then, becomes something of a political one. One of these two bills is likely to move forward, and both are pretty bad at this point, though USA Freedom is marginally better. Do you support a marginally better bill in the hopes of blocking a really bad bill? Or do you hope (with little chance of it happening) to block both bills and pray for a magical third solution that actually does something useful? It's a pretty blech situation all around.

One of the tricky parts of bills like these, which adjust the language in existing bills, is that merely reading the bills alone isn't nearly enough, because they're amending existing language, and pointing to various places. You have to put it all together to figure out what's really going on. Wheeler, again serving a tremendously important role, is attempting to do that, showing how Section 215 would look under the manager's amendment under USA Freedom. This suggests that a big problem is the lack of some key definitions -- with "selection term" being one which might actually create a loophole for the NSA to drive a surveillance barge through.

One hopeful idea is that during tomorrow's markup, someone can actually get some amendments through that actually defines these undefined terms in a way that actually limits the NSA's powers (and potentially bringing back some of the transparency requirements). Right now it's not clear if that will happen, though there's typical political horse trading going on in the back rooms. Still, a good definition (and there's a chance that any definition would be bad...) would go a long way towards taking the USA Freedumb Act back to being the USA Freedom Act.

Filed Under: dutch ruppersberger, fisa transparency and modernization act, jim sensenbrenner, mike rogers, nsa, surveillance, usa freedom act