Outgoing Senator Mark Udall of Colorado has been the biggest thorn in the NSA’s side. 
Jack Dempsey/AP
NSA reform may be the last true bipartisan issue.
Republicans won victories nationwide in Tuesday’s midterm election, handily taking control of Congress and ousting two key critics—Senator Mark Udall (D. Colorado) and Senator Mark Begich (D. Alaska)—of the NSA. The GOP takeover of the legislative branch means Republicans will chair all senate committees, including the powerful Senate Select Committee on Intelligence.
Privacy advocates like the ACLU are often aligned with the Democratic and liberal sides of politics, so it stands to reason that some might worry this would be a crushing blow to privacy. The biggest NSA defenders are Republicans; the Patriot Act that justifies much of the spying behavior disclosed by Edward Snowden was created and passed under a Republican administration and Congress; and a majority of Republican lawmakers have voted to enhance those spying powers over the years, even after the Snowden information was revealed.
Further, 2015 is shaping up to be a key year in the fight for privacy in the post-Snowden era. A number of provisions of the Patriot Act will be up for reauthorization next June. The USA Freedom Act, which aims to curtail NSA powers, will also finally be up for consideration in the Senate. With more than half of the American people disapproving of the NSA’s activities, reform is a clearly pressing issue.
Yet, a Republican majority in the House and Senate is not the devastating blow to privacy you might have expected it to be. Here are four reasons why.
Everyone Hates Clandestine Spying on Americans
Though NSA reform once was a partisan issue, Edward Snowden’s revelations of the depth of government surveillance united Democrats and Republicans in calling for an overhaul. Neema Singh Guliani, legislative counsel with the American Civil Liberties Union, says it’s too early to tell what direction the new leadership will go, but she says the issue of NSA reform is not a one-senator or a one-party issue.
Take Colorado, for instance. Outgoing Democratic Senator Mark Udall was one of the Senate intelligence committee’s few members who persistently criticized the agencies it oversaw. He fought all expansions of NSA reach and opposed using drones to spy on US citizens, introduing a bill in 2013 to ensure private drone operators could not spy on people in this country.
If he were to be replaced by a pro-NSA senator, the weight of the reform movement would have become severely unbalanced.
In fact, Republican Cory Gardner, who beat Udall handily by 4 percentage points, has such a good record on privacy that Udall was essentially unable to run on his own sterling record. Gardner recently reversed his position on matters of privacy. Though he initially voted for the updated and expanded Patriot Act in 2011 (which Udall was staunchly against), Gardner’s record changed dramatically after Snowden’s NSA revelations, consistently voting against expanding NSA reach. As a congressman, he co-sponsored the EFF-backed version of the new USA Freedom Act.
This kind of bipartisan support for privacy issues is not unique to Colorado, as one look at the congressional scorecard compiled by the coalition for StandAgainstSpying reveals.
Personality Matters as Much as a Voting Record
Voting in favor of privacy isn’t enough. Lawmakers must actively scrutinize the surveillance state to be effective. Mark Jaycox, legislative analyst with the Electronic Frontier Foundation, says a lawmaker’s personality is just as important as the votes he or she casts.
“We lose someone like Udall who has been a vociferous advocate of privacy and has been an active overseer of the intelligence committee, and who we get [in his place] is Gardner—who politically is very similar to Udall,” Jaycox says. “But we’re losing personalities who have been actively overseeing and actively being transparent on these issues and calling the NSA out … and we don’t know how active their replacements will be.”
Active and engaged lawmakers are essential on the intelligence and judiciary committees, Jaycox notes, because the most important oversight is conducted before and after the votes occur in hearings and in private classified briefings. “We have their votes. But votes are only half the story here. The other half is how they perform on the committee—if they’re going to ask difficult questions and if they’re going to serve as overseers of the intelligence committee.”
Democratic Senator Mark Begich of Alaska was another harsh critic of government spying who lost his seat. Begich, who was a member of the intelligence committee, had a voting record of consistently upholding our privacy rights and of being tough on the NSA.
“You knew that Begich was going to go to that briefing and ask them 50 questions,” Jaycox told WIRED.
Begich’s replacement, republican Dan Sullivan, a former Alaska Department of National Resources commissioner, has no record to speak of on matters of privacy. Jaycox says it’s important that vocal advocates for privacy get placed on the intelligence and judiciary committees.
“It is incumbent on Senator McConnell and the new majority to insert as good if not better replacements than their democratic counterparts—people who will ask tough questions that Senator Paul is asking or that Senator Udall would have asked,” Jaycox says.
A Pro-NSA Chair of the Intelligence Committee Isn’t All-Powerful
As key provisions of the Patriot Act move closer to their expiration nexy year, Congress will have to confront privacy and domestic security head-on. “The issue of NSA reform is a must-address issue,” Singh Giulini explains.
But now that the Republicans control the Senate—Sen. Richard Burr of North Carolina will chair the intelligence committee—it may be harder to pass comprehensive NSA reform that limits what kind of information can be tracked and stored, from whom, and using which methods. Burr once famously said, “If I had my way, with the exception of nominees, there would never be a public intelligence hearing.”
Senator Richard Burr of North Carolina is set to become chairman of the Senate Select Committee on Intelligence. He has been a vocal supporter of the CIA and NSA. Lauren Victoria Burke/AP
This doesn’t sound promising for privacy reform. But Burr can’t have his way simply by wielding the gavel. All eyes will be on him, and members of his own party have expressed outrage at the aggressive behavior of the intelligence-gathering community. A quiet reauthorization of the Patriot Act will not be possible in this environment.
“Based on what we hear from a lot of members, there is a lot of discomfort in a quiet re-authorization where there is not a full debate and a full understanding of what is being passed. It’s an issue that is not going to go away, and leadership will have to deal,” Singh Guliani notes. Adding that everyone knows “it’s not something we can kick the can on indefinitely.”
Although Burr has been an outspoken supporter of the NSA, he’ll have a hard time fighting the reform momentum that has swept Capitol Hill. “All of that is going to shift onto chairman Burr and create pressure on him to take a closer look at these issues,” Singh Guliani says.
And although the committee chairs have the prerogative to set the agenda, “junior members do hold power and sway within the committee and that can supplement any deficiencies that a chair of the committee may have,” Jaycox says.
This Is the Big Test of Bi-Partisanship
There are three main bills and issues up for discussion that impact privacy—USA Freedom Act, the Cybersecurity Information Sharing Act, and reform of the Electronic Communications Privacy Act. Although the USA Freedom Act, which sets forth some reforms, was led by Senator Leahy who will now be stripped of his chairmanship of the intelligence committee, USA Freedom Act enjoys bi-partisan support, as does ECPA.
Jayfox says passage of CISA, however, is unlikely any time soon. “CISA will remain a longshot in this Congress and hopefully will always remain a longshot,” he says.
The question now is whether the new leadership will feel the pressure to address privacy reforms in the lame-duck legislation session or if it will put off the issue until the next session.
“We don’t know how this new leadership will prioritize the issue….Grassley hasn’t come out with a position on USA Freedom Act. He hasn’t supported or opposed the bill so it’s hard to predict,” Singh Guliani says.
She notes, though, that over the last few weeks the Republican leadership has been vocal about wanting to push the USA Freedom Act through. “Last night we saw Paul and other members say we want to work across the aisle on bills and pass bills that get on the president’s desk. This bill is an opportunity to see if they follow through on some of those promises,” she says.
“All the stars are aligned on it. It has the support of lawmakers and the support of civil liberties groups.”
Alex Washburn/WIRED
