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Renewed Calls for More Surveillance Aren’t Based in Reality

Earlier this week, Sen. Tom Cotton (R-Ark.) introduced a bill that would delay implementation of the USA Freedom Act — a bill passed earlier this year that places extremely modest restrictions on the NSA’s surveillance infrastructure. (Photo: AP/Danny Johnston)

It should go without saying that fear mongering, misinformation, and xenophobia aren’t going to keep America safe. But that’s not stopping some politicians from seizing the Paris attacks to put forward surveillance proposals that would erode our liberties while doing nothing to protect the country.

They’re also not grounded in anything resembling reality.

Earlier this week, Sen. Tom Cotton (R-Ark.) introduced a bill that would delay implementation of the USA Freedom Act — a bill passed earlier this year that places extremely modest restrictions on the NSA’s surveillance infrastructure. Barring congressional action, the USA Freedom Act will be implemented by the end of the month, ending the NSA’s daily collection of virtually all Americans’ phone records. 

In Sen. Cotton’s view, the USA Freedom Act:

“takes us from a constitutional, legal, and proven NSA collection architecture to an untested, hypothetical one that will be less effective … at a time when our threat level is incredibly high.”

Instead, he believes his bill:

“will empower the NSA to uncover threats against the United States and our allies, help keep terrorists out of the United States, and track down those responsible in the wake of the Paris terrorist attacks.”

These comments might sound comforting, but they bear little resemblance to the facts.

Under the program that the USA Freedom Act reforms and Cotton wants extended, the NSA collected detailed information about the calls made by every American. The only federal appeals court to consider the issue found that the program was illegal and numerous members of Congress agreed. As for its “proven” record, two independent executive branch oversight bodies could not identify a singly instance where it directly contributed to thwarting a terrorist attack.

In other words, the program not only constituted a massive infringement on privacy, but it was a colossal failure from a security standpoint. So why would Cotton suggest otherwise?

Other policymakers have also blamed the use of encryption for the attacks on Paris, absent clear evidence that it played any role. Sen. Feinstein (D-Calif.) has said that encrypted products that allow “evil monsters to communicate” are a problem. Sen. McCain and New York County District Attorney Cyrus Vance have called on Congress to pass legislation that would require companies to build backdoors into their products for law enforcement use — basically to weaken their encryption to ensure police can access communications or information stored on electronic devices.

Like the Cotton bill, these are also lose-lose proposals. Numerous technology experts, along with former senior intelligence officials, have explained that weakening encryption lowers our cybersecurity defenses by making data more vulnerable to hackers or malicious governments. Contrary to the insistence of some politicians, the FBI hasn’t been able to provide specific examples or cases in which encryption has interfered with an investigation.

Members of Congress understandably want to take action to prevent future Paris-like attacks. But history cautions us against knee-jerk legislation and policy. 

After 9/11, Congress hastily passed the Patriot Act with little debate. Officials warned there could be more terrorist attacks without the sweeping authorities in the bill, and the national climate of fear made opposition politically risky. The result: Our country’s mass surveillance architecture ballooned, library records were targeted, and millions of Americans were subjected to unconstitutional searches.  

We are still struggling to undo the damages wrought by these policies, even as some seek to capitalize on the climate of fear following the events in Paris to expand the powers of the government. This week, CIA Director John Brennan suggested, without any evidence, that “hand wringing” over NSA mass surveillance since Edward Snowden’s disclosures is preventing the government from identifying terrorists — even though the only NSA reform legislation that has passed since has not even been implemented. That’s just irresponsible posturing.

We may continue to see politicians avoid an honest debate over security and privacy by proposing false solutions. But the rest of us need to make sure tragic events like those in Paris are not used to replace reason with misinformation, and liberty with fear. 

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Neema Singh Guliani

Neema Singh Guliani works in the ACLU's Washington Legislative Office.

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