The Washington Post

Will new amendment to USA Freedom Act bar bulk data seizures?

The National Journal reports: House to Advance Bill to End Mass NSA Surveillance:

The House Judiciary Committee will hold a markup of the USA Freedom Act on Wednesday, a surprising and sudden move that may be a counter to plans the House Intelligence Committee has to push forward a competing bill that privacy advocates say would not go far enough to curb the government’s sweeping surveillance programs.

The Freedom Act is sponsored by Rep. Jim Sensenbrenner, the one-time mastermind behind the post-9/11 Patriot Act, from which both the Obama and Bush administrations have derived much of the legal authority for their surveillance programs. Sensenbrenner, a Wisconsin Republican, has vocally condemned NSA spying since Edward Snowden’s leaks surfaced last June.

A manager’s amendment has been posted to House Judiciary’s website that a sources close to the negotiations said is a “compromise” on the Freedom Act. The “bipartisan substitute” from House Judiciary Chairman Bob Goodlatte, Rep. John Conyers, the panel’s top Democrat, and others will prohibit the bulk collection of data under Section 215 of the Patriot Act but keep in tact the “relevancy” standard for collection authority. The original Freedom Act had sought to completely rewrite the relevancy standard.

The swift move follows a jurisdictional squabble last month between the House Judiciary and House Intelligence committees. Some Judiciary members–who are among the most vocal critics on the NSA in Congress–said they were being intentionally sidelined after the House parliamentarian gave primary jurisdiction of a another surveillance reform bill to the Intelligence Committee instead of Judiciary.

Much as I believe that the NSA bulk data seizure program is unconstitutional because it is an “unreasonable” general warrant, the preferable remedy would be a congressional fix. Moreover, I agree that we should never count on the courts to save us.

I haven’t yet read the new language and am wary that it won’t end the bulk seizure of data, but will merely restrict “searches” of that data in the hands of the government. I await those who know this statute well to dissect the meaning of these amendments. But you can read the language of the original USA Freedom Act for yourself here and the new manager’s amendment here and see what you think.

Randy Barnett is the Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, and Director of the Georgetown Center for the Constitution. His books include: Restoring the Lost Constitution: The Presumption of Liberty (Princeton, 2d. ed 2014); and The Structure of Liberty: Justice and the Rule of Law (Oxford, 2d. ed. 2014).



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