How should we understand the Senate’s failure to pass the USA Freedom Act on Tuesday? I’m not sure. But I’m pretty sure it’s misguided to propose, as Steve Vladeck did yesterday, that the failure represents the “end of the Snowden affair”—“the end of the 17-month-long national conversation over how to reform U.S. foreign intelligence surveillance authorities.”
As Steve notes, Senator Leahy managed to do something quite remarkable: he drafted a surveillance-reform bill that garnered the support of major civil-liberties groups, the biggest technology companies, and the intelligence community. Steve is certainly right that the Senate’s vote was a disappointment. That the Senate was unable to pass the bill suggests that there may be something very wrong with the Senate.
But it tells us very little about the prospects for surveillance reform. It’s not just that the Senate will be forced to return to the question of surveillance reform before Section 215 sunsets. (Members of Congress and the administration have already signaled that they intend to revive reform legislation next year.) It’s also that Congress isn’t the only forum in which surveillance reform can be achieved.
Three federal appeals courts—the Second Circuit, the D.C. Circuit, and the Ninth Circuit—are already considering challenges to the NSA’s call-records program. Those challenges could end that program and have significant implications for other mass-surveillance programs as well. Multiple district courts are considering challenges to surveillance conducted under section 702 of the Foreign Intelligence Surveillance Act. Those challenges could have implications not only for the UPSTREAM and PRISM programs but also for surveillance under Executive Order 12333.
The technology companies whose cooperation the government needs in order to conduct surveillance have already taken multiple steps to limit government surveillance. Apple has adopted encryption by default. Microsoft is challenging the government’s authority to compel the production of data stored by U.S. companies abroad. Twitter is challenging the constitutionality of the national-security-letter provisions. The technology companies will continue to do these things whether or not Congress manages to pass a surveillance-reform bill. They are doing these things because they believe, quite rightly, that their customers care about their privacy.
To be sure, there are some reforms that can’t be achieved without lawmakers. Only Congress can make much-needed structural changes to the Foreign Intelligence Surveillance Court (FISC), for example. But even at the FISC, reform is already in the air. Before the Snowden revelations, the Court rejected multiple appeals for release of court opinions and briefs filed under seal. Since the revelations, the Court has released opinions, transcripts, and briefs.
Congress should pass a surveillance-reform bill. That it hasn’t done so already represents a disturbing abdication of responsibility. But if Congress fails to impose reforms, it will succeed only in marginalizing itself. The courts will act. Technology companies will act. Reform is coming, whether Congress embraces it or not.