With Surveillance Reform Failure, Advocates Ask, “What Now?”

Privacy and civil-liberty groups are dismayed by last week’s defeat, but hope that European Union courts or the midterm elections will shift the paradigm in favor of reform.

Jan. 22, 2018, 8 p.m.

If last week’s vote to reauthorize Section 702 of the Foreign Intelligence Surveillance Act is a bellwether for the broader fight against government snooping, the future of surveillance reform doesn’t appear particularly bright.

This was, after all, the first vote to reauthorize the controversial program since former intelligence contractor Edward Snowden changed the game through his explosive revelations of the government’s expansive collection of Americans’ private data. And when it came to worrisome federal authorities, Section 702 certainly fit the bill for privacy advocates—while it authorized the National Security Agency to surveil overseas electronic communications, it also gave federal law enforcement the ability to review the incidentally collected messages of Americans without a warrant.

In a post-Snowden world, with trust in government at near-record lows and the success of reforms such as the 2015 USA Freedom Act in the rearview mirror, many believed the stage was set for a dramatic rollback of the spy agencies’ power.

What happened, however, was largely the opposite. Led by leadership in both chambers, a bipartisan group of lawmakers managed to reauthorize the program for six years while blocking all but a semblance of constraints on the warrantless review of Americans’ communications.

Now, after months of buildup, some privacy advocates say they are surprised and discouraged to come up empty-handed.

“One reason I think it’s disturbing that you can’t get these pretty mild reforms now is we have a political moment when, if you take seriously the rhetoric coming out of both parties, they ought both to be very concerned to constrain the power of the intelligence community,” said Julian Sanchez, a senior fellow at the libertarian Cato Institute.

With worries about the “Deep State” influence on the right and fear over the “mercurial authoritarian” occupying the White House on the left, Sanchez said he had believed “the stars would be aligned for reform.”

But despite the setback, privacy advocates aren’t giving up. They point to the dramatic narrowing of the vote in both chambers between 2012 and 2018 as proof that momentum remains on their side. “These are fights that you very rarely win on the first round,” Sen. Ron Wyden said, after his own bipartisan effort to add reform amendments to Section 702’s reauthorization was sunk by a single vote.

Surveillance hawks agree that the fight is far from over. “The issue is cyclical,” said former NSA and CIA director Michael Hayden, an ardent defender of the intelligence community’s authorities. “It will be back again on another front.”

Privacy advocates see several opportunities to keep up pressure on what they dub the “surveillance state” well before Section 702’s next sunset in 2023. The most fruitful avenue for timely reform may be the ongoing European Union court review of the Privacy Shield, the agreement through which U.S. companies are permitted to transfer and store the personal data of their European customers.

“Problems with the Privacy Shield would provide the best chance for Congress to revisit 702 before the sunset,” said Liza Goitein, the codirector of the Brennan Center for Justice’s Liberty and National Security Program.

European privacy groups claim that the agreement grants U.S. spy agencies unfettered access to their private communications—an argument likely enhanced by last week’s vote to reauthorize Section 702 with minimal reforms.

Because of ongoing litigation, most major Silicon Valley firms were conspicuously absent from this round of debate on Section 702. But if the Privacy Shield runs into legal trouble, Goitein believes tech firms will demand new reforms on Section 702 in order to protect their access to European customers.

“If [U.S. tech companies] lose in litigation, it no longer behooves them to pretend that this statute provides adequate privacy protections,” Goitein said. “And they’ll be back in the halls of Congress clamoring for changes.”

“Privacy advocates didn’t need that many additional votes in the House or Senate to change how this turned out,” she added.

David Shedd, a former acting director of the Defense Intelligence Agency, said it is a “big stretch” to think that a ruling against the Privacy Shield would send Silicon Valley racing to Capitol Hill in opposition to Section 702. “I think they struggle themselves with the Privacy Shield and where the European Union has gone,” he said, suggesting companies would likely pressure the EU to change course instead of targeting American lawmakers.

But Robyn Greene, the policy council at New America’s Open Technology Institute, said she believes that Section 702’s fate may lie in European courts. “If the Privacy Shield is struck down because of concerns about Section 702 and its impact on Europeans’ fundamental rights, it’s very likely that the companies will engage more heavily on Section 702 with Capitol Hill, and push for real reforms,” she said.

Opponents of government surveillance also see opportunity in this year’s congressional elections, particularly during the upcoming party primaries. Jason Pye, the head of legislative affairs at conservative-libertarian advocacy group FreedomWorks, said his group is planning to hold the lawmakers who voted for a straight 702 reauthorization accountable. “We are going to remind our activists, and these votes are going to be scored on our scorecard,” he said.

Last week’s vote could also place some Democrats in danger during their own primaries, according to Goitein. “I think there are a lot of voters in California who are pretty pissed at the way [Sen.] Dianne Feinstein voted, at the way [House Minority Leader] Nancy Pelosi spoke out in favor of this bill that endorses warrantless searches of Americans’ communications,” she said.

Despite a bruising defeat on Section 702, privacy advocates say that between ongoing litigation and the midterm elections, they’re still that hopeful their best chance to reform the government’s surveillance programs lies ahead.

“I think the Privacy Shield is the best chance,” said Goitein. “And potentially by the time that happens, we will have a different Congress. And a couple of stars that were out of whack at that point in the alignment—which include the companies showing up missing because of their litigation and Republican leadership being so opposed to reform—those will be reoriented.”

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