As the U.S. Department of Justice attempts to deal with cyberspying abroad, Americans are still looking to confront intelligence gathering on our home soil.
Last year, Senator Patrick Leahy and Representative Jim Sensenbrenner introduced the USA Freedom Act, one of the first comprehensive bills to address multiple aspects of the National Security Agency's (NSA) spying.
The proposal is finally starting to gain some traction in the House of Representatives,where an amended version is expected to be voted upon this week. But that won't be the final word. The Senate plans to vote on their own version of the Freedom Act by the summer.
It's legislation that Senator Ron Wyden, a Democrat from Oregon, has been advocating for for a very long time—well before Edward Snowden's revelations shocked the nation. Senator Wyden says significant efforts toward reform remain, but there are signs of greater transparency ahead.
"This really is a federal human relations data base," says Sen. Wyden of mass surveillance. "In other words, the country was told a year ago, 'Oh, this stuff is no big deal, it's just meta data. It's just innocent.' I and others said not so fast. This is in effect digital surveillance when the government knows who you called, when you called, and often where you called from, that's a great deal of personal information about people. The government knows that you called a psychiatrist three times in 24 hours, and once after midnight—it knows a lot about you."
Sen. Wyden says that he and his colleagues are trying to change this, aiming their sights on "significant reforms" that would force the government to go through legal channels in order to collect information.
"Instead of the government collecting all of this information, the government would have to go to court on a particular individual and show particularized evidence with respect to an individual," says Sen. Wyden of one of the proposals in the USA Freedom Act. "I think that's certainly moving in the right direction."
As it stands now, the government asks a secret court established by the Foreign Intelligence Surveillance Act (FISA) for permission to carry out surveillance programs—something that Sen. Wyden has criticized.
"The Foreign Intelligence Surveillance court is essentially one of the most bizarre judicial bodies in the United States," says the senator. "I don't know of any other court that essentially hears one side. In effect, when the government made the case to essentially reinterpret the section 215 provision in the PATRIOT Act, there was nobody there to argue the other side. When you have the reforms we're talking about with respect to the FISA court, there would be someone there to argue the other side on the major Constitutional questions."
Sen. Wyden says that when it comes to data collection, he believes that there's no reason that phone companies should hold onto additional data that they aren't already storing. He says that while the government should function as a watchdog of the phone companies, it is not these telecom providers that citizens should be worried about.
"The phone company cannot take away your liberty—the government can," says Sen. Wyden. "When the government targets a foreigner, which in many instances is very appropriate because those are some really serious threats, what we now know, because James Clapper has confirmed it to me in writing and we've made it public, is that very often Americans get swept up in those searches and they can have their email and communications reviewed."
Sen. Wyden hopes to close this "loophole" that currently allows for the accidental review of American communications, something he says is increasingly important since interactions are often interconnected globally. He adds that the "backdoor search loophole" is gaining bi-partisan support in the House of Representatives.
"We still have some very serious issues, particularly secret law," says the senator. "In effect, Americans expect that intelligence agencies will sometimes need to conduct secret operations. But these agencies shouldn't be following secret laws."
In addition to reforming secret laws and policies, Sen. Wyden says it is important for lawmakers to address the ways intelligence agencies operate.
"They are incredibly dedicated, patriotic public servants and do an amazing job for our country," he says. "But too often we have seen a culture of misinformation on the part of intelligence leadership. And it goes on to this day."
Sen. Wyden points to the former head of the National Security Agency, General Keith Alexander, who said “We don’t hold data on U.S. citizens,” back in 2012.
"That is one of the most false statements ever made about U.S. surveillance," says Sen. Wyden.
In addition to Gen. Alexander's statement, Sen. Wyden points to an op-ed piece written in USA Today by Dean Boyd, director of the CIA Office of Public Affairs. In that piece, Boyd calls for a CIA review of some of the files of the Senate Select Committee on Intelligence. But then days later, Sen. Wyden says that the Director of the CIA, John Brennan, said the agency had no such interest in those files.
"That's the kind of culture of misinformation that lives until this day," says Sen. Wyden.
While many are concerned that the rights of U.S. citizens are being violated, so too are others who believe surveillance is necessary to ensure the safety of the nation. Sen. Wyden says there are ways to balance these competing stances without harming either. He points to a report by the President's Intelligence Advisory Board, which supports the kinds of reforms being pushed by Sen. Wyden and his colleagues.
"I and others feel very strongly that the government has emergency authority—when the government sees that something is a threat the government can move immediately, and then come back after the fact in order to go through the various legal processes that you would normally do beforehand," says Sen. Wyden. "The combination of those emergency orders, plus what the president's own advisory board has said, ensures that when Americans follow this debate, they will see that it is possible for our country to have liberty and security—the two are not mutually exclusive."