The text of the RESTORE Act is here. It’s not quite as bad as I’d feared from media reports, but it still has some serious flaws. The most frustrating thing about it is that it starts off really well. The first substantive provision is:
Notwithstanding any other provision of this Act, a court order is not required for the acquisition of the contents of any communication between persons that are not United States persons and are not located within the United States for the purpose of collecting foreign intelligence information, without respect to whether the communication passes through the United States or the surveillance device is located within the United States.
In my opinion, they should have just cut the bill off there. The whole thing would have been 3 pages long, it would have taken away the White House’s most potent talking point, and it would have gotten the enthusiastic endorsement of people like me.
Instead, it goes on to create this elaborate, cumbersome, and arguably unconstitutional “blanket warrant” process for eavesdropping on calls between an American and a non-American. I have yet to see any coherent explanation for why such a provision is necessary.
A significant amount of the bill is devoted to detailing a variety of reports and audits that various parts of the executive branch are required to submit about the government’s surveillance activities. While more oversight is rarely a bad thing, I’m frankly not that enthusiastic about these provisions because I’m worried they’ll be perceived as a substitute for individualized warrants. Moreover, I think there’s a good argument to be made that genuinely foreign surveillance activities shouldn’t be subject to the same level of scrutiny as domestic surveillance. So to the extent that all these reporting requirements blur the line between domestic and foreign surveillance, I think that could be a bad thing.
I continue to be baffled by the politics of all this. I imagine the Democratic leadership thinks they’re going to buy peace with the White House by compromising and giving them some of what they want. But that’s not how this administration works. They’ve never shown any willingness to meet critics halfway. (See, for example, Max Cleland) If the Democrats give the president anything less than everything on his wish list, they’ll be loudly denounced as soft on terrorism. So if they’re going to get attacked anyway, they might as well at least make their base happy by passing a bill that’s strongly supportive of civil liberties.
This is not that bill. The ACLU is endorsing Rush Holt’s alternative legislation, so perhaps that’s the legislation advocates of civil liberties should be demanding.
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