MCCRC delegation presses Van Hollen: FISA court reform is fine – but end bulk collection too

Longworth House Office Building. These doors were barricaded due to the shutdown.

On Thursday, a Montgomery County Civil Rights Coalition delegation met with Representative Chris Van Hollen (D-MD-8) to register again their disappointment with the Congressman’s July vote against the Amash-Conyers bill, and discuss NSA reform measures we recommend.

The delegation included representatives from several organizations that co-signed an August letter expressing “profound disappointment” with the Congressman’s Amash-Conyers vote, including Sue Udry (Defending Dissent executive director), Thomas Nephew, Bill Day (both MCCRC), Mike Mage (ACLU Montgomery County president), Sara Love (ACLU Maryland legislative director), Fran Pollner, Rick Sullivan (both Peace Action Montgomery), and David Moon (program director, Demand Progress; District 20 candidate).*  Darian Unger (District 20 candidate) and Jean Athey (Peace Action Montgomery) had other obligations or they would have joined us as well.

Good news
On Tuesday, Representative Van Hollen added a bill of his own — H.R.3228 (“FISA Court Reform Act of 2013” — to a growing list of NSA reform legislation.

MCCRC welcomes Congressman Van Hollen’s bill, a companion to one introduced by Senator Blumenthal.  The bill addresses one facet of the NSA bulk data collection scandal — a rubber-stamp approval process by the “Foreign Intelligence Surveillance Court” (FISC) involved — by providing for a measure of “adversarial review” of violations and appeals of decisions.  However, the process still doesn’t take place in public proceedings the way the petition MCCRC has circulated advocates.  As Bill Day pointed out in the meeting, proceedings that an advocate’s clients — the American people — are not privy to aren’t truly, fully adversarial (since the clients can’t monitor their advocate).**  But it’s also true — as Van Hollen staffer Ben Cook pointed out — that they’re more adversarial than not having an advocate at all.

However, that’s only one, partially implemented part of the recommendations we presented to the Congressman in petition form (as well as a list of 165 online and in-person supporters of that petition). It’s also critical that the scope of collection and surveillance requests be scaled back to what the Fourth Amendment demands:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Not so good news
So our delegation was dismayed by the Washington Post’s description of Rep. Van Hollen’s view that

…it’s more important to control who has access to data than to regulate how it’s collected. “I really think that’s the key issue when it comes to protecting civil liberties: What are the standards that apply when people are trying to search the data and do you have an advocate to protect individual liberties in that process.” …

The Congressman essentially reiterated that view in our meeting.  Access to retrospective investigation of phone or electronic records might outweigh the liberty interests of the people those records describe; improving the FISC approval process with a Constitutional Advocate might be sufficient reform.  In what he termed a “thought experiment,” Rep. Van Hollen proposed the analogy of a “lock box” accessible by permission, suggesting that — if the process worked as designed — Fourth Amendment civil liberty interests were adequately protected. Among our rejoinders…

• 

  Part of our delegation. L. to r., front: Bill Day (MCCRC supporter), Fran Pollner (Peace Action Montgomery). Back: Sue Udry (Defending Dissent), David Moon (Demand Progress), Sara Love (ACLU Maryland).  Not pictured: Mike Mage (ACLU-Montg. County), Rick Sullivan (Peace Action), Thomas Nephew (MCCRC).

  Bill Day, responding to the idea that the Constitutional Advocate might be a sufficient reform, used the simple but effective analogy of parents and the cookie jar: far better to simply remove the cookie jar of data from the reach of NSA, than to put it in reach with the admonition not to take a cookie.

• Sara Love pointed out that police don’t get to storm everyone’s homes prospectively to look for evidence of crimes or criminal conspiracies — that’s not how America works.
• I disputed that the box was “locked” — and could be known to be locked — citing examples of data being secretly shared with the DEA, of so-called “LOVEINT” abuses by NSA employees as the tip of what’s likely to be an iceberg of examples …examples that we’re only learning about now, basically thanks to a whistleblower on the run.
• David Moon suggested the Congressman’s assertion proved too much — by the same token, why not collect all credit card and bank statements in advance, to name but a few of the countless interesting data points investigators would like to have at their disposal?

In our view, Rep. Van Hollen’s “seize without a warrant first, search with a warrant later” theory — if that’s how to characterize it — would rather plainly fail to satisfy the Fourth Amendment.

Van Hollen also said he would not be “comfortable” with a simple repeal of the PATRIOT Act such as in the Holt bill, on the basis that parts of that legislation were uncontroversial and/or ‘modernization’ of existing law.  While that seems like an unfortunate way to look at an unnecessary monstrosity like the PATRIOT Act — “this paragraph looks fine –let’s not throw it all out”? — the appeal of modernization per se might also be a winning argument for updating ECPA, a.k.a the Electronic Communications Privacy Act …of 1986.

Not so bad news
On the other hand, Rep. Van Hollen did agree that his measure was part of a larger reform picture, again, similarly to what was reported in the Washington Post:

Asked whether he would support a broader approach similar to the one proposed by Wyden, Paul, Blumenthal  and Udall in the Senate, Van Hollen said he would “certainly look” at that kind of bill. But he said he was focused on taking it one step at a time. “This a very important piece of the overall issue and it signals important bipartisan cooperation in the House on this issue,” he said.

When he spoke with us, Rep. Van Hollen assured us “I’ll look at the larger bill [Sensenbrenner/Conyers — ed.], I’ll look at the Lofgren bill … I don’t want to overcommit but I will take a close look at that.”  After the Congressman had to leave for his next meeting, his aide Ben Cook echoed the Washington Post’s reporting in describing his boss seeing the bill as part of a ‘comprehensive’ legislative package.

So — other parts of his discussion with us notwithstanding — Congressman Van Hollen is still thinking about the kinds of bulk data collection restrictions envisioned in the Wyden, Leahy, and Conyers/ Amash bills now before Congress and (we understand) the Sensenbrenner/ Conyers bill that soon will be. That would be great; it would be less great if  it turns out ‘broader’ or ‘comprehensive’ reform, in the Congressman’s view, really can exclude prohibitions on bulk data collection.

Here are some after-meeting reactions by some of our delegation:

What Montgomery County civil liberties advocates can do
Obviously, it will be important for you to contact Rep. Van Hollen (or your Congressperson) and your Senators as soon as possible. Use the numbers below:

• Rep. Van Hollen: (202) 225-5341
• Rep. Delaney: (202) 225-2721
• Rep. Sarbanes: (202) 225-4016
• Senator Mikulski: (202) 224-4654
• Senator Cardin: (202) 224-4524

and…

1. thank Congressman Van Hollen, if you’re calling him, for offering his “FISA Court Reform Act” (H.R.3228)
2. …but urge him or your Representative to advocate for:
   • Rep. Holt’s “Surveillance State Repeal Act” (H.R.2818), and
   • Rep. Lofgren’s “Surveillance Order Reporting Act of 2013″ (H.R.3035)
3. …and urge our Senators Mikulski and Cardin to advocate for:
   • Sen. Wyden’s “Intelligence Oversight and Surveillance Reform Act” (S.1551), and
   • Sen. Franken’s “Surveillance Transparency Act of 2013″ (S.1452)

To learn more about the legislation we’re recommending, please see our prior posts about general and transparency-related NSA legislation.  For talking points about the problems with NSA bulk collection, consider some of those noted above, as well as…

• It’s not clear at all that any of the NSA’s vast new authorities and powers have been particularly effective since the PATRIOT and FISA Amendment Act were passed.  Only this week, NSA chief General Keith Alexander walked back NSA’s  years long mistaken claims of terror plots thwarted by its surveillance from 54 to 13 to only “1 or 2” terror plots — at which point it’s fair to wonder how many other means could have stopped them, up to and including just street vendors noticing something odd.
• For that matter, it’s not clear at all why either the PATRIOT Act or FISA Amendment Act were considered necessary after 9/11; even without those authorities, the NSA was keeping tabs on 2 of the hijackers in San Diego (via their calls to Yemen), yet failed to provide this information to the FBI. So it’s frankly false to claim these laws are necessary now — at least based on the worst terror incident this country has ever experienced.
• What’s the harm done? Aside from 24/7 infringement of 4th Amendment rights, you mean?  Those rights are one of the most important shields for your First Amendment rights.  And the some of the means the NSA is employing — e.g., sabotaging encryption standards — open the door for criminal abuse. (Especially when they’re teaming up with black hat hacker companies like VUPEN.)

Thanks!

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* Demand Progress was not asked to co-sign the letter, which was circulated among Montgomery County or Maryland-based organizations.  However, David Moon joined us for a silent protest of the Congressman’s vote in early August.
** Though “pseudo-adversarial” was not a fair description on my part as I searched for a word to convey the incomplete nature of the process; “quasi-adversarial” might have been better.