How bad can the new spying legislation be? Exhibit 1: it's called the USA Liberty Act
Freedom doesn't mean what you think it does
In asking the DNI to provide the number of US citizens who communications have been collected in the previous six months, the bill's sponsors have also purposefully ignored one of the most visible efforts by the people's representatives to keep the security services in check.
For several years, Congress has been asking for the NSA and others to provide a figure on the number of American citizens included in the existing 702 database, and they have played years of games in response. Ultimately, the spies simply refused to provide a figure, sparking something close to apoplexy in Senator Ron Wyden (D-OR).
The remaining changes follow a similar pattern: more window-dressing than real reform.
The bill does specifically prohibit the NSA from collecting so-called "about" communication – where anyone even mentioning a specific target could also have their communications stored. But the NSA has already agreed to that change, largely because it was never going to withstand legal scrutiny.
It uses the same formulation as other spying program reforms and allows for a representative of civil liberties groups to argue in front of the secretive Foreign Intelligence Surveillance Court (FISC) as it makes a determination. But, as has been repeatedly noted by such groups, that role is strictly limited. There is no right for that representative to attend hearings; the representative does not have the right to access all the relevant information; and the court is not obliged to listen to, act on, or even reference their arguments. The situation is ripe for abuse.
The bill extends whistleblower protections given to government employees to private contractors that work for the intelligence community. Which sounds good but, again, a look at what has happened in the real world means such protections are likely to be no more than window dressing. No one working for the security services will seriously imagine that attempting to use whistleblower protections will do anything but paint a giant Edward Snowden-shaped target on their back. At least not without a number of public signs of a change in culture – and we have yet to see any.
Return of the PCLOB
And finally, the bill reintroduces the Privacy and Civil Liberties Oversight Board (PCLOB) back into the mix after it was effectively killed off by Congress for daring to criticize other illegal spying programs. The PCLOB was stripped of many of its power – and this bill does not return them. It is notable that President Trump also nominated an NSA-friendly person to chair the PCLOB.
The oversight board has no real independent power and no one worth their salt would apply to fill the empty positions on the panel having seen what was done to the previous directors when they challenged the status quo. In short, it is yet another fig leaf.
And so the USA Liberty Act is exactly what you imagine it to be: a piece of law written to give the illusion of reform by adding reports and paperwork, and yet quietly retains highly questionable spying programs – keeping the real levers of power in the hands of the security services and the Congressmen who wrote the law. ®