A Victorious Loss for Privacy

Losing by 12 is not usually cause for celebration. But for a growing number of Americans worried that the National Security Agency (NSA) has gone too far, last Wednesday’s narrow defeat to a bipartisan amendment is more a glimmer of hope. For a bitterly divided and partisan Congress that is often in a state of legislative gridlock, the fact that Republicans and Democrats can find common ground on privacy issues is welcome news.

The U.S. House of Representatives voted 205–217 against limiting the covert collection of telephone “metadata” under Section 215 of the Patriot Act to potential terrorists or spies who are actually under investigation. Reps. Justin Amash (R-Mich.) and John Conyers (D-Mich.) sponsored the amendment, which an unlikely coalition of liberal Democrats, libertarian Republicans, and Tea Party conservatives supported.

The vote was the first real test of congressional sentiment on NSA surveillance of millions of innocent Americans since Edward Snowden revealed that the nation’s premier spy agency has been systematically sweeping up data about every phone call in the United States. Although a loss is still a loss, this slim margin demonstrated an appetite for reform of the nation’s post-9/11 surveillance laws. It was also a striking contrast to the House’s 2011 overwhelming reauthorization of the same Patriot Act provisions.

The breadth of congressional opposition to the NSA program was particularly remarkable against the backdrop of intense lobbying efforts from the administration. General Keith Alexander, the nation’s chief spy, held emergency classified briefings for House members to extol the virtues of the NSA’s phone record fetish. At the same time, the White House denounced the Amash-Conyers amendment before it even reached the House floor, a rare step for any president.

For an administration that has defended NSA snooping on the theory that it has the blessing of all three branches of government, the mounting dissent in Congress should indeed be cause for alarm. A steady stream of new legislation has been introduced to reform the Patriot Act since the scope of the NSA’s domestic spying became public. Lawmakers have also raised serious concerns about the Foreign Intelligence Surveillance Court, which operates in secret and again approved the telephone records program last week. Even the author of the Patriot Act, Rep. Jim Sensenbrenner (R-Wis.), wrote to the Attorney General to protest the court’s “overbroad interpretation” of the law, suggesting that Congress would be unlikely to reauthorize it.

Moves to limit the government’s reach is no doubt a reflection of the increasing disquiet among Americans who recognize that dragnet surveillance of domestic phone records is not only highly invasive, but also unnecessary and likely unconstitutional. With Rep. Amash’s vow to fight on, it also signals a rare opportunity to achieve meaningful, bipartisan reform on privacy and surveillance issues.

In sum, there is an important victory hidden beneath this defeat. The unexpectedly strong opposition appears to be the beginning of a new chapter in the battle for privacy in the digital age. At very least, it ensures that more debate and more proposals are soon to follow — and may well succeed the next time around.

Photo by Scott Beale.