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Modern field guide to security and privacy

Can the Senate’s new Republicans usher in NSA surveillance reform?

After the Snowden leaks, many wannabe Republican senators made NSA reform a campaign platform. Now that they're in the Senate, privacy advocates hope they'll stay true to their commitment for curbing surveillance and add momentum to a reform bill.

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    Newly elected Republican senators Steve Daines (l.) of Montana and Cory Gardner of Colorado (r.) both advocated reforming the National Security Agency while they were campaigning. They are seen here along with senators Mike Rounds (second from left) of South Dakota and Wyoming's John Barrasso (center). They are seen leaving to a Republican retreat in January.
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With the snow-capped Montana mountains behind him, flannel-clad Steve Daines blasted the National Security Agency’s sweeping surveillance practices. “I stood up to the Washington establishment in support of [a bill] to stop the NSA from collecting the records of innocent Americans,” he said. “Big government can take away our freedoms.”

That was Mr. Daines’ campaign ad. And the message clearly resonated – Daines, a former House representative from Montana, won his election to the Senate.

Security and privacy became hot-button issues in political races across the country after former NSA contractor Edward Snowden disclosed the spy agency’s collection of millions of Americans call records. With several national polls showing Americans support curbing the controversial program, many wannabe senators, like Daines, spoke out about the need to protect civil liberties.

Now, 13 new senators are here in Washington – and their votes will be crucial in the upcoming debates over surveillance reform.  

Congress failed to pass a reform bill last year, despite President Obama’s urging and recommendations from government-appointed privacy and civil liberties boards to end the domestic call record bulk collection program. In a Republican-controlled Congress, however, the politics of privacy are even more complex.

After the November elections, incoming Senate Majority Leader Mitch McConnell encouraged his Republican colleagues to oppose advancing the USA Freedom Act because it could hurt the fight against terrorism. With the threat from the Islamic State in the news, the vote to debate the surveillance reform bill fell short by just two votes. This time around, privacy advocates are warily watching the fresh crop of senators – all Republican but one.

If they stay consistent with their past pro-privacy positions, they could very well tip the precarious balance in the upper chamber in favor of reform.

“There’s a pretty short list of issues where our phones start ringing off the hook here,” Daines told Passcode. Guns, he says, is a key one – “and when you start looking at surveillance and the federal government overreach, our phone really starts ringing.”

This year, the pressure’s on: A key provision of the Patriot Act the NSA says provides the legal authority for the domestic spying program is set to sunset in June.  

“It’s something the Republican Party is going to have to debate,” says Mark Jaycox, legislative analyst for the Electronic Frontier Foundation. “The question is going to be, can new members convince the leadership that these authorities need to be reformed?”

When these issues come up for debate, he said, “we are counting on the members to be consistent in their positions when it comes to privacy issues, surveillance, and national security issues.”

The outspoken freshman reformers

After Mr. Snowden leaked documents revealing the government was collecting phone metadata from millions of Americans, then-House member Daines started hearing from his constituents.

“Montanans were concerned, [asking], ‘What’s the government doing with information they know about us?’” Daines said.

For his constituents, NSA reform is more about the overreach of what they see as big government “encroachment” into their personal lives, Daines said. “When you lose your trust of government and what they do with data here, it’s a pretty important loss of trust,” he said. “We need to be advocates in Washington representing the people back home, who are saying first and foremost, we need to make sure our civil liberties, our freedoms, our personal privacy, our personal information are protected from an overreaching federal government.”

Formerly a vice president at cloud computing company RightNow Technologies, Daines isn’t the only one who has been gung-ho for surveillance reform. New Colorado Republican Sen. Cory Gardner replaced Mark Udall, one of the most vociferous advocates of NSA reform, and he too has forged a pro-reform path. Senator Gardner voted to strip away funding for the NSA’s bulk collection of phone records in a controversial amendment sponsored by Rep. Justin Amash in 2013.

That amendment is considered one of the more intense moves for NSA reform put forward in the post-Snowden era. While it ultimately failed in a close vote, Gardner, Daines, and newly elected Sen. Bill Cassidy from Louisiana all voted for it.

That means three of the seven newly elected senators who were previously in the House have already staked out strong pro-reform positions.

Gardner went so far as to oppose the USA Freedom Act in the House – even though he cosponsored it – “because I felt the leadership in the House had stripped the bill of most of its pro-reform positions,” he told Passcode. “What we have to do is balance the need for security with the need for protections of civil liberties. It’s something we will constantly battle in a world of evolving and rapidly changing technology utilized by those who would wish to do the country harm.”

Now that he’s in the Senate, Gardner plans to continue working to curtail other aspects of government surveillance, including protecting the privacy of Americans’ e-mails. He also plans to press the Obama administration to discuss the potential involvement of other parts of the government such as the Drug Enforcement Agency in other surveillance programs. There have been recent reports the agency is using a secret domestic license-plate scanning program to collect stores hundreds of millions of records about motorists mainly to fight drug trafficking.

“Can you tell us with a straight face, in a classified if necessary session, that this is it – there are no more bulk collection or surveillance programs going on?” Gardner says he plans to ask the administration. “With the ability of technology to grow, so grows government’s capability, so grows bad actors’ capabilities. So too must grow the Congress’s willingness to protect innocent, non-offending Americans.”

House-turned-Senate members

There’s at least a baseline for NSA reform among all seven of the House-turned-Senate members. Senators Cassidy, Shelley Capito, James Lankford, and Tom Cotton all voted for the House version of the USA Freedom Act. (Gardner and Daines were the only two who voted against the USA Freedom Act because they thought it did not go quite far enough to protect privacy.)

Michigan Senator Gary Peters, the Senate’s lone Democrat freshman, was one of the cosponsors of that House bill – and the e-mail privacy act to prevent law enforcement from accessing those accounts without a warrant. “Recent abuses revealed to have taken place in the NSA surveillance program cast a poor light on important tactics that must be used in our counterterrorism efforts,” he said in an October 2014 interview with the Lansing State Journal.

Some of these senators could play key roles in the upcoming debate. Senator Lankford, who was tapped for the Senate Intelligence and Homeland Security Committees, said he was “astounded” by the number of voters who told him they trust the private sector, and said it doesn’t bother them that Google has their information – but were perturbed by the idea government officials may have access to the same information. “Ads retain their information, but they do not want the government to see it,” Lankford said. “Individuals have a right to be able to protect their property, even if that property is an e-mail that’s theirs and for a private audience only.”

Newcomers to Washington

It’s more difficult to discern where freshman senators who do not have past voting records in the House might fall on this issue. Many of those newcomers to Washington are already weighing security and privacy questions early in the term, however, as they had to address them during campaign debates and interviews.   

Sen. Thom Tillis, for instance, wants to make sure intelligence and law enforcement have the tools they need, but he does have “a concern” with bulk collection. “If people feel like their privacy is being threatened – not just the phone conversations they have, what they do on the Internet – those kinds of things could undermine our economic backbone in the country and the world,” the North Carolina senator told Passcode. “People want to know there are appropriate safeguards.”

Still, Senator Tillis says he wants to know more about “whose shoulders to burden” for surveillance reform, especially when it may mean having the NSA gather phone records directly from private company databases. “Even capturing that data can be very expensive, it’s not clear to me they’re set up for this,” Tillis says, determined any changes should be made “in a way that’s not burdensome for the industry.”

He also supports people taking stronger precautions to keep their data secure from hackers and bad actors with the newest technology available – at a time when the FBI and other intelligence officials are lambasting tech companies’ new, stronger encryption technologies they claim make it difficult to decode suspected terrorists or criminals’ communications. “The private sector should do everything they can to continue to innovate so at the end of the day the individuals’ privacy is protected to the maximum ability,” Tillis said.

Freshman Sen. Ben Sasse has said, according to Nebraska media outlets during his campaign, that the government should not be able to read American citizens’ e-mails without a warrant. According to the Nebraska Watchdog, Sasse said “it’s a problem” if the Patriot Act permits widespread collection of data on innocent Americans and should be amended.

Iowa freshman Senator Joni Ernst told Radio Iowa she’s glad Snowden leaks “brought to light that we were looking at private citizens' emails, tracking conversations,” even though she, as a veteran who served in a combat zone, views the former contractor as a traitor for releasing the information. “We have to protect their Fourth Amendment rights, those citizens of the United States.”

Freshman Alaska Senator Dan Sullivan, in an August debate against then-Sen. Mark Begich, had said the NSA needed to be “reined in.” Now that he’s in the Senate, would he support something like the USA Freedom Act, if it came up again this session? “I think in this session you’ll see new approaches and different approaches,” he told Passcode. “I’m going to take the time to look at the issues more deeply.”

National security hawks versus privacy advocates  

While newcomers may talk about the importance of privacy and surveillance reform, they may soon face pressure from national security hawks within the caucus when surveillance reform comes up for a vote.

With Senator McConnell and his team of Republicans actively campaigning against taking up the USA Freedom Act last session, only four GOP senators – Ted Cruz of Texas, Dean Heller of Nevada, Mike Lee of Utah, and Lisa Murkowski of Alaska – joined with the Democrats to debate the reform bill. It wasn’t enough. One Democrat, Bill Nelson of Florida, opposed advancing the bill, and Senator Rand Paul also voted no because he said the reforms did not go far enough.

Those two “no” votes tanked prospects to even debate the reform bill. This year, on the heels of the Charlie Hebdo attacks in Paris and with the Islamic State on the rise, calls for the pendulum to swing toward national security have intensified from hawks in Congress.

Republican Sen. Marco Rubio from Florida, for instance, already penned an op-ed this year calling for the new GOP majority in both houses of Congress to permanently extend the NSA’s spying authorities. And House Speaker John Boehner claimed government surveillance helped foil a terror attack on the Capitol.

Several new senators said they have not faced pressure from within their party to be more hawkish on surveillance – yet. Privacy advocates are looking at Tom Cotton, who served in Iraq and Afghanistan, as one freshman likely to join the hawks. While Senator Cotton voted for the House version of the USA Freedom Act in the House, he has been outspoken against taking potentially useful surveillance capability away from the national security apparatus. “Folks, we are at war. You may not like that truth … Do not take this tool away from our warriors on the front lines,” he said during debate to quash the Amash amendment. Cotton’s office did not respond to request for comment about his current position.

But it’s not just the hawks laying the groundwork for the upcoming debate; veteran senators in favor of reform are also gearing up for action.

Democratic Sen. Ron Wyden of Oregon in the first few days of this session used Twitter to call on new senators to join him to reform government surveillance – a mission he has been promoting for years from his perch on the Senate Intelligence Committee.

He wants the new members, “to join what Senator [Rand] Paul and I often joke is the Ben Franklin caucus,” said Senator Wyden told Passcode. “Ben Franklin famously said that anyone who gives up their liberty to have security really doesn’t deserve either. So I’m hopeful that these new members will be sympathetic and I’ll take them at their word that they’re interested.”

The political forecast

While McConnell has quashed debate on the USA Freedom Act before, reform advocates say that if the House takes up the issue in earnest, the Senate could follow suit.

“To the degree the Snowden revelations faded to the background, and Paris moves to the foreground, that does change the dynamic somewhat,” said California Rep. Adam Schiff, now the top Democrat on the House Intelligence Committee – and a strong pro-NSA reform voice. “But I don’t think enough for the House majority to count on straight reauthorization.”

Some privacy pros are cautious in their optimism. Even though many freshman lawmakers went into the new term with ideas for reining in the spy agency, lawmakers’ have a tendency to change after they’ve taken office, said Trevor Hughes, president and CEO of the International Association of Privacy Professionals.

“We have certainly seen politicians who have campaigned on very pro-privacy platforms, and when faced with the reality of politics on the Hill or with the reality of national security infrastructure, something changes and they become more central,” said Mr. Hughes.

President Obama himself, Hughes notes, is prime example. “Obama campaigned on many strong privacy positions and they’ve moderated since he became president,” he said. “Whether that will happen [in the Senate] is hard to say, but we certainly haven’t seen it go the other direction: Someone without a privacy statement or platform come into Congress and become a privacy advocate.”

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