After Basically No Debate, And No Opportunity For Amendments, Senate Votes To Expand NSA Surveillance

from the not-unexpected,-but-dumb dept

As was unfortunately expected, after a very short (and fairly stupid) debate that was full of misleading statements that focused more on "but... but... terrorism!" than anything substantive, the Senate has voted for cloture on the same bill the House approved last week that extends and expands the NSA's 702 surveillance program, opening it up to widespread abuse and refusing to do simple things like adding in a warrant requirement when used to spy on Americans. The vote was actually surprisingly close -- going right down to the wire. They needed 60 votes to get this bill over the top and they almost didn't get them. The final vote was 60 to 39 with the final vote (well over an hour after the vote starting) coming from Senator Claire McCaskill in favor of warrantless spying on Americans.

This is not all that surprising, even if it's disappointing. It follows the pattern that we've seen with surveillance programs over the past decade. Whenever they are up for renewal, Congress refuses to debate or discuss serious reforms until there's like a week left... and then they have a simplistic and rushed debate that basically consists of the hawks freaking out about how we're all going to die if the NSA can't keep spying on people, and civil liberty defenders pointing to the 4th Amendment, only to have the surveillance state supporters push back that the NSA protects us and is full of good people and how dare you question their good nature by insisting on petty little things like "warrants" as required by the Constitution.

The cloture vote is not technically the final vote. It just shuts down debate and blocks the ability to raise any amendments. There will be a final vote soon, but the cloture vote is, effectively, the important vote here, and having voted for cloture the bill will pass -- and despite President Trump's confusion last week, he will sign the bill, and the NSA will get to turn back on its "about" surveillance capabilities it had been forced into shutting down last year, and the FBI will continue to get full, warrantless access to the "backdoor" or "incidental" collections of the communications of many, many Americans without a warrant and without anything approaching probable cause.

While this was expected to turn out this way, it's still bad. It's our Senate (and the House and the White House) purposely spitting on the 4th Amendment of the Constitution to appease the NSA and the FBI. And, as with last week, it's especially incredible to see a number of Senators who have spoken out against Donald Trump -- including Senators Jeff Flake and Dianne Feinstein -- then turn around and vote for this. Last week, Flake compared Trump to Stalin. And just days later he votes to give that same Trump vast surveillance powers over Americans. Incredible. Meanwhile, Trump has been attacking Claire McCaskill left and right as she's up for re-election... and she repays that by giving him more surviellance power and selling out the American public. Missouri voters should remember that.

Filed Under: 4th amendment, claire mccaskill, dianne feinstein, jeff flake, nsa, privacy, ron wyden, section 702, surveillance

New Bill Designed To Stop Egregious Venue Shopping By Patent Trolls

from the sorry-east-texas dept

Abusive patent litigation siphons tens of billions of dollars from the economy every year. In addition to burdening American entrepreneurs with lost revenues and great uncertainty, the scourge of frivolous lawsuits depletes funds that otherwise could have used toward research and development, venture-capital investment and other essential business activities.

While it isn't the kind of comprehensive corrective to America's "patent troll" problem that we'd like to see, the newly introduced Venue Equity and Non-Uniformity Elimination Act would address one small piece of the problem. The bill, S. 2733, would curtail rampant venue shopping that unfairly distorts legal outcomes by allowing plaintiffs to select friendly judges in advance.

According to research from George Mason University's Mercatus Center, nearly half of all patent cases are filed in the U.S. District Court for the Eastern District of Texas. Through the first half of 2015, the Tyler, Texas-based court heard 1,387 patent cases, compared with an average of 19 such cases in other federal judicial districts.

The district has become so notorious as a magnet for "patent troll" litigation that Samsung ramped up its giving to charities near the court, and even built an ice skating rink next to the court's Marshall, Texas division, undoubtedly to present a more friendly face to local juries. The City of Tyler even advertises itself as "IP friendly" and lists the big awards the court has doled out. The current state of affairs is so absurd that John Oliver even covered it.

When the Federal Circuit heard oral arguments this month in TC Heartland, a case that deals with venue, it blamed Congress for the current mess. As the panel explained, the present situation arose from a 1990 case called VE Holding that overrode the previous, stricter, rules following an interpretation of a 1988 law. Therefore, since Congress messed it up in the first place, they should be the ones that fix it.

Yet, cracking down on venue shopping alone offers a more modest goal than the sorts of comprehensive patent-reform legislation that have stalled in Congress in recent years. The last major push for comprehensive reform – H.R. 3309, the Innovation Act of 2013 – passed the U.S. House in December of that year with broad bipartisan support and an overwhelming margin of 325-91. At the time, it held a 7-1 margin of support among Republicans.

Alas, the bill also drew host of special interests to the table, who swiftly ramped up an intense and well-funded opposition campaign (get your fill of AstroTurf at www.savetheinventor.com). After failing to clear the Senate during the 113th Congress, the Innovation Act was reintroduced last year by House Judiciary Chairman Bob Goodlatte, as H.R. 9. Both that measure and a Senate companion bill (S. 1137, the PATENT Act) included venue-reform provisions. Despite strong support from free-market groups (including R Street) and a wide variety of other organizations, a coalition of special interests has obstructed either bill from moving forward.

The holistic approach to patent litigation reform appears to have been swallowed up by fear-mongering. Opponents have gone so far as to claim that an effort pushed by some of the most conservative legislators actually represented Obama's liberal vision for a "patent-free society." Narrowly-targeted reform efforts like the one introduced by Sens. Jeff Flake, Cory Gardner, and Mike Lee (none of whom are even remotely considered to be on the "liberal" end of the spectrum), present a new opportunity to move forward.

The fruits of innovation should go to entrepreneurs and inventors, not trial lawyers. Addressing abusive patent litigation is essential to ensure that America's rules to reward technological innovation remain in line with the Constitution's mandate to "Promote the Progress of Science and the useful Arts."

Nathan Leamer and Zach Graves are from R Street, a free market-based, think tank in Washington DC

Filed Under: bob goodlatte, cory gardner, east texas, jeff flake, jurisdiction shopping, mike lee, patent reform, patents, venure reform