Some Civil Libertarian Groups Back Dem Surveillance Bill

With a vote expected today in the House on the Restore Act — the Democratic surveillance bill that scales back August’s Protect America Act (PAA) — a split has emerged among civil libertarian groups that unanimously strongly opposed that bill. The ACLU continues to oppose the Democratic bill, but two other prominent civil libertarian organizations, the Center for Democracy and Technology and the Center for National Security Studies are urging passage.

Both organizations consider Restore to be an imperfect bill. In particular, neither is fond of the so-called “basket” orders for surveillance authorized by Restore that allow the NSA to collect communications without individualized suspicion. But Kate Martin of CNSS sees the issue much as the Justice Department’s Ken Wainstein does: the FISA Court has a front-end oversight role over foreign calls that might be to U.S. persons. It’s just Wainstein finds that unacceptable, and Martin doesn’t.

“Our view is that as written, the Restore Act would allow the Court to authorize surveillance without a warrant when we think the Fourth Amendment requires a warrant. Yes, that’s problematic,” Martin says. “But the circumstances under which the court is authorized to do so are much narrower than the circumstances under the Protect America Act, and it’s going to be revisited by Congress in a way that’s crucial, with oversight and a sunset provision.”

That’s the position taken by the Center for Democracy and Technology as well. The non-individualized court orders aren’t desirable in themselves. But they do represent “a significant improvement over current law.” And there’s the crucial issue. Both groups view the debate as a fight between Restore and PAA — which the
administration wants to simply make permanent — and not a fight between the PAA and some other alternative.

“Over the years, we’ve frequently worked for improvements to the law which were not exactly what we wanted, and for improvements to existing law even when they didn’t go as far as we wanted,” Martin explains. “And that’s what this is.” She says that if Restore becomes law, her organization will continue to push for changes to it, including “to restore fully the requirement that a judicial warrant be obtained when the government seizes Americans’ international communications.”

Martin would not comment on the ACLU’s continued opposition to the bill.