Why the Amash-Conyers Vote Signals a Potential Privacy Sea Change

For over a decade, there has been a seemingly inevitable trend in Washington toward diminished privacy rights in the name of national security. But last night something extraordinary happened, which could be the beginning of a major shift in Congress’s attitude toward government surveillance.

A bipartisan amendment, offered by Representatives Justin Amash (R-MI) and John Conyers (D-MI), to defund the NSA’s blanket collection of Americans’ phone records came up just seven votes short of passing the House. It failed 217-205. This narrow vote bodes well for the future of the privacy and civil liberties debate in the nation’s capital. As the ACLU’s Michelle Richardson noted, “This is the biggest vote in opposition to the PATRIOT Act in the last 12 years.”

Earlier this summer, it was revealed that the secretive Foreign Intelligence Surveillance Court was ordering phone carriers to turn over all of their customers’ “metadata” records to the NSA. These records can reveal extremely intimate details of one’s life. This blanket collection program is carried out under Section 215 of the PATRIOT Act, which allows for the collection of phone records as long as there are reasonable grounds to believe the records are relevant to an authorized terrorism investigation. Civil liberties advocates and many Members of Congress including Rep. Jim Sensenbrenner (R-WI), an original architect of the PATRIOT Act, have expressed concern that this blanket collection program goes much farther than what Congress intended to authorize. The phone records of millions upon millions of innocent Americans cannot all be relevant to a terrorism investigation.

The offering from Amash-Conyers and cosponsors Thomas Massie (R-KY), Mick Mulvaney (R-SC), and Jared Polis (D-CO) sought to limit this controversial program by amending the defense appropriations bill to defund data collection carried out under any court order that didn’t specify that only phone records of people directly under investigation could be collected. As CDT’s Greg Nojeim put it, this amendment would reject “the over-reaching and unconstitutional ‘collect everything’ approach” currently being carried out by the NSA.

The amendment itself faced what appeared to be nearly insurmountable hurdles in the days leading up to the vote:

• On Tuesday NSA Director General Keith Alexander made a last-minute visit to Capitol Hill to persuade Members to oppose the amendment;
• That same day, a letter was sent to Congress signed by former executive branch officials—including CIA Director Michael Hayden and Attorneys General Michael Mukasey and Alberto Gonzales—in support of the blanket records collection program;
• Then, on Tuesday evening, White House Press Secretary Jay Carney issued a statement opposing the amendment;
• And on Wednesday, the day of the vote, the influential Chairmen of the House Judiciary, Homeland Security, Armed Services, Appropriations, Intelligence, and Foreign Affairs Committees, sent a “Dear Colleague” letter to Members urging them to oppose Amash-Conyers.

Despite these huge hurdles, the amendment came within a hair’s breadth of passing.

If nothing else, the vote was a powerful statement that much of Congress—perhaps much more than previously expected—rejects the interpretation of Section 215 that has allowed a secretive program to exist for seven years that sweeps in the phone records of millions of innocent Americans. Nearly half of the House took a stand on one of the most significant civil liberties issues of the day and voted to end this abuse of Section 215.

With this vote and the growing unease among the public about surveillance, it is increasingly apparent that the tide is turning and Congress will eventually be forced to address the legitimate concerns about the overreaching collection program. Yesterday, Congress nearly defunded the entire program. Surely it can muster the votes to rein it in.

In the mean time, keep the pressure up and contact your Members. As we’ve seen time after time, these calls matter.