Civil liberties advocates suffered a major setback in December, when the US Senate voted to extend the Foreign Intelligence Surveillance Act (FISA) — a bill that allows the government to conduct warrant-less electronic monitoring on suspected terrorists overseas and, as has become increasingly evident, its own citizens. Renewed on New Year's Eve, just before the inauguration of a new Congress, the law has come under intense criticism from those who argue it gives the government dangerously broad powers to spy on Americans; yet such opposition wasn't enough to stop FISA from sailing through the Senate by a 72-23 vote before arriving on President Obama's desk for his signature.
But Senator Ron Wyden, a Democrat from Oregon and one of the bill's most outspoken critics, says he remains committed to implementing safeguards that would protect Americans' Fourth Amendment rights, while pursuing new accountability measures designed to keep the NSA in check. "We will win this," Wyden emphatically told reporters at CES Wednesday. "It's not a question of 'are we,' but when."
Not a question of if, but when
One of the most contentious parts of the bill is its perceived lack of transparency and oversight. Thus far, the NSA has refused to say exactly how many Americans it is actually spying on, citing opaque security concerns.
Wyden himself introduced an amendment that would have required the government to disclose the number of US citizens caught in the NSA's electronic dragnet, but his efforts were ultimately stonewalled on the Senate floor. Democratic Senator Patrick Leahy also introduced a bill that would have shortened FISA's lifespan to three years, rather than five, but his proposal eventually died, as well.
"The central question is whether Americans deserve to have a 'yes' or 'no' answer" as to whether a list of monitored citizens even exists, Wyden explained. He noted with optimism that his amendment garnered 43 votes in the Senate last year, adding that he expects to see further bipartisan support from Republican Senator Chuck Grassley and GOP Representative Pat Toomey, as well as incoming Democratic members of Congress.
Overcoming politics and procedure
Still, the defeat of Wyden's amendment was a comparatively dour way to end the year — especially for a politician who spent much of 2012 spearheading landmark legislative efforts to protect online freedoms. The Senator was at the forefront of the opposition movement against SOPA and PIPA, and played a critical role in stonewalling a so-called "anti-leaks" bill that threatened to dramatically regulate news coverage of national security issues.
But Wyden says there are factors — both political and procedural — that precluded FISA from attracting the kind of grassroots opposition that SOPA and PIPA attained.
"It didn't help that I was on the Senate floor on December 28th," he quipped, adding that by the time FISA came up for debate, most Americans were "still unwrapping Christmas presents."
"Wouldn't you normally go talk to people before you write a bill? We couldn't do that."
The Senator also cited inherent procedural hurdles that often make it difficult for members of Congress to act quickly — or, for that matter, to even get the full story on a proposed law. On the anti-leaks bill, for example, Wyden says he and his colleagues on the Senate Intelligence Committee were barred from even consulting outside parties, due to nebulous "intelligence reasons."
"Boy, is that a weird process," he said. "Wouldn't you normally go talk to people before you write a bill? But we couldn't do that. So after the bill came out, only then we were allowed to actually go talk to human beings, and we saw how badly flawed the bill was."
Wyden credited Senate Majority Leader Harry Reid with giving FISA at least some time for debate, and says that despite its defeat, he still looks back on 2012 as a year of major victories in the name of digital freedom. The challenge going forward, then, is to rouse up enough FISA opposition to make substantive changes — even as Congress heads toward another debt ceiling and at a time when, as Wyden says, "many procedures are stacked against our side."