By Robert Romano
Americans for a Limited Government, 14/05/2015On May 13, the U.S. House of Representatives voted overwhelmingly, 338 to 88, to adopt H.R. 2048, the so-called "USA Freedom Act," that promises, in section 501, to include a "Prohibition on bulk collection" by the National Security Agency (NSA).
Ahead of the vote, the White House — a strong supporter of the agency's mass surveillance program it has said is vital to security — issued a statement in favor of the legislation, promising that it would "enhance privacy and better safeguard our civil liberties, while keeping our nation safe."
There is only one problem.
In truly Orwellian fashion, the bill does exactly the opposite, Rep. Justin Amash (R-Mich.) warned in a Facebook post to his constituents.
"H.R. 2048 actually expands the statutory basis for the large-scale collection of most data," Amash wrote in opposition to the bill hours before the vote.
Amash explained, "H.R. 2048 does this by authorizing the government to order the production of records based upon a "specific selection term" (i.e., like a search term used in a search engine)… A 'specific selection term' may be a specific person (including a corporation, such as Western Union), account, address, or personal device, but it also may be "any other specific identifier," and the bill expressly contemplates using geographic regions or communication service providers (such as Verizon) to define the records sought, so long as it's not the only identifier used as part of the specific selection term. In other words, the bill doesn't let the government require Verizon to turn over all its records without limitation, but nothing appears to prevent the government from requiring Verizon to turn over all its records for all its customers in the state of New York."
"Only a politician or bureaucrat wouldn't call that 'bulk,'" Amash added.
But it gets worse, as the legislation, if it becomes law, may undermine pending lawsuits against the agency, Amash warns, "H.R. 2048 gives our intelligence agencies, for the first time, statutory authority to collect Americans' data in bulk. In light of the Second Circuit's opinion that the NSA has been collecting our information in bulk without statutory authority for all this time, it would be a devastating misstep for Congress to pass a bill that codifies that bulk collection and likely ensures no future court will ever again be positioned to rule against the government for over-collecting on statutory grounds."
Meaning, the only remaining recourse would be to sue on constitutional grounds, leaving it to chance how courts might rule on the basis of the Fourth Amendment's protections against warrantless surveillance.
Congress would be better off doing nothing, since that would increase the odds of the warrantless surveillance being overturned in federal court. Instead, now members are giving their imprimatur to the program.
"The U.S. House is missing an historic opportunity to rein in the NSA mass surveillance program," Americans for Limited Government President Rick Manning said, instead urging Congress to "return to real reform that protects Americans from government surveillance in violation of the Fourth Amendment."
The legislation now heads to the U.S. Senate, and in the meantime, almost everyone in the House will pretend they voted to end the program. But don't be fooled.
All they did was provide political cover and a legal basis to Big Brother to download and store your phone records. That's not called ending the program; it's called authorizing it.
Robert Romano is the senior editor of Americans for Limited Government.
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