A Tale of Two Surveillance Reform Bills

NOVEMBER 1 UPDATE: I fixed the chart to correctly reflect that both bills authorized Amici participation and also allow the Constitutional Advocate to initiate and appeal to the FISA Court of Appeals.

Today, Senator Patrick Leahy (D-VT) and Representative Jim Sensenbrenner (R-WI) introduced a bill to reform government surveillance in light of the NSA spying disclosures brought to us by Edward Snowden.  This bill, the "USA Freedom Act" follows on the heels of September's bipartisan offering from Senators Ron Wyden (D-OR), Mark Udall (D-CO), Rand Paul (R-KY), and Richard Blumenthal (D-CT), the "Intelligence Oversight and Surveillance Reform Act". The Leahy/Sensenbrenner bill has political legs.  ACLU, Center for Democracy and Technology, and other groups "strongly support" it, and it has bipartisan support in both chambers, including from Senators Udall and Blumenthal. I thought it would be helpful to compare this bill to the Wyden/Udall proposal.  There's a comparison based on each bill's table of contents, and a comparison based on some highlighted substantive provisions, each of which should be illuminating.  Assuming the text of each bill is foolproof enough to constrain the NSA as indicated, there are many similarities, and few differences between the proposals.

Most importantly, neither bill addresses the vast surveillance NSA conducts outside of FISA, which nevertheless sweeps in bulk data about Americans.  Nor does any bill stop the NSA's BULLRUN program, efforts to undermine the implementation of strong encryption on the public Internet. These activities happen outside of FISA, seriously damage American interests, and are almost wholly unregulated.  Nor, as I've written, do these bills go far enough to protect the average non-U.S. person from indiscriminate surveillance.  Without these protections, America’s Internet companies and our long term political interests in spreading democracy and the rule of law will suffer.

It's great to have these bills, but let's be careful out there.  These are only partial reform measures given what we now know about the NSA. 


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