Privacy SOS

Wyden v. Feinstein, with our privacy hanging in the balance

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Yesterday the Senate failed to amend the Big Brother Spying Act (aka the FISA Amendments Act) to include even one of the very, very limited transparency or privacy adjustments proposed by Senators Wyden, Merkley, Udall and Leahy. (There was a snowball's chance in hell that Senator Rand Paul's Fourth Amendment Protection amendment would pass; the Fourth Amendment is too radical for this Congress, by a long shot.) Our esteemed Senate then voted to reauthorize the bill for another five years, meaning that in 2017 we will have another chance to debate a surveillance law that will have enabled mass, society-wide military monitoring and collection of every single electronic transaction and communication in the world for 9 years. For those of you keeping track, that's more than twice as long as the US engagement in World War II.

Oregon Democrat Ron Wyden has long been a stalwart for privacy and pretty much the only person in the Senate who has repeatedly put his career on the line to challenge the most powerful institutions and forces in the United States, which together constitute the military surveillance industrial complex. You can see him giving a truly inspiring defense of privacy and the Bill of Rights in the video clip of yesterday's Senate floor debate embedded above. (You can read live tweets from the debate here, if you like that sort of thing).

On the other end of the spectrum from Privacy Superhero Ron Wyden we have California Democrat Dianne Feinstein, who has profited personally and immensely off of that very industrial complex and who acts as attack dog for those powerful interests every time their power is questioned or, heaven forbid, challenged. The personification of a SAW-like civil liberties nightmare, Feinstein was the only person who stood in opposition to every single privacy and transparency amendment offered. As Glenn Greenwald writes, her comments consisted mostly of fearmongering: "she basically just screamed "Terrorist!" and "9/11" over and over until her time ran out, and then proudly sat down as though she had mounted rational arguments against the transparency and oversight amendments."

Perhaps the most astounding theme throughout the proceedings was Feinstein's repeated assertion that disclosing any information to the public about how the law actually works (the government's interpretation of the law is secret) would threaten our national security. That's because if people knew what the government was doing with FISA authority, they would be "stunned" (Ron Wyden's words) and push the government to change the law.


Even more notably, Feinstein repeatedly argued that requiring even basic disclosure about the eavesdropping program – such as telling Americans how many of them are targeted by it – would, as she put it, "destroy the program". But if "the program" is being conducted properly and lawfully, why would that kind of transparency kill the program? As the ACLU's Richardson noted: "That Sen. Feinstein says public oversight will lead to the end of the program says a lot about the info that's being hidden." In response to her warnings that basic oversight and transparency would destroy the program, Mother Jones' Adam Serwer similarly asked: "Why, if it's all on the up and up?"

In other words: we don't get to know about how the law is used because if we knew about it we'd be so outraged that we'd change the law, and the government doesn't want it to change. So: secrecy. Democracy!

EFF's Trevor Timm summed up the relevance of the five year FISA reauthorization thusly:

[T]his vote was nothing less than abdication by Congress as its role as watchdog over Executive power, and a failure of its independent obligation to protect the Bill of Rights. The FISA Amendments Act and the ongoing warrantless spying on Americans has been, and will continue to be, a blight on our nation and our Constitution.

Amen. I hope someday soon (though not until 2017, most likely) we will look back on this era as we do now upon statutory apartheid in the United States. In order for that to happen, we'll need to put in serious work. Here's to a 21st century Church Committee, and to a recommitment to fight for the Bill of Rights in 2013 and beyond.

© 2021 ACLU of Massachusetts.