Nearly Two Years After Snowden, Congress Poised to Do Something — Just Not Much

NSA collection of U.S. telephone records could continue, but the agency would only get records matching "specific selector terms" it specifies.

(This post is from our new blog: Unofficial Sources.)

Members of Congress appear ready to use a rare moment of leverage over the NSA to place modest limits on only one of the many mass surveillance programs exposed by Edward Snowden.

The USA Freedom Act of 2015, a long-awaited compromise bill negotiated by House and Senate Judiciary Committee members, was unveiled Tuesday. The bill calls for the bulk collection of Americans’ phone records by the National Security Agency to be replaced with a more selective approach in which the agency would collect from communications companies only records that match certain terms. The bill also requires more disclosure — and a public advocate — for the secretive Foreign Intelligence Surveillance Court.

But nearly two years after Snowden gave the public a rare and extensive view into the U.S. surveillance state, Congress is doing nothing to limit NSA programs ostensibly targeted at foreigners that nonetheless collect vast amounts of American communications, nor to limit the agency’s mass surveillance of non-American communications. The limited reforms in the new bill affect only the one program explicitly aimed at Americans.

Congress had leverage for once because three provisions of the PATRIOT Act are set to expire on June 1. They include, most significantly, Section 215 of the act, which was intended to allow the government to obtain specific business records relevant to particular counterterror investigations, subject to review by a FISA court judge. Instead, the NSA used it to justify the wholesale seizure of American telephone records.

The USA Freedom Act would amend Section 215 so that the government, when seeking phone and other business records, would have to use a “specific selection term”.

In the past, the intelligence community has been served well by congressional inaction. But this time, the legislative branch has to affirmatively pass something or a provision the NSA cares a lot about goes away. In fact, this time, inaction would serve privacy activists. ACLU attorney Jameel Jaffer, for instance, argued Tuesday that the USA Freedom Act “would make only incremental improvements” in some areas and that Congress should let Section 215 expire and pursue “wholesale reform.”

The new bill has the political virtue of splitting the differences between Republican and Democratic elites, even as it leaves out in the cold a nascent alliance of libertarian-leading Republicans, anti-surveillance liberals and privacy activists who wanted more. It accepts — without any public evidence — the claim that the intelligentce community needs access to domestic phone records. Judiciary committee members were quoted in the Washington Post saying the bill “would ensure the NSA maintains an ability to obtain the data it needs to detect terrorist plots.”

The new bill is also expected to garner considerably more support than two outlier proposals. One, by Senate Majority Leader Mitch McConnell, R-Ky, would renew the PATRIOT Act as is. Another, sponsored by Reps. Mark Pocan, D-Wisc., and Thomas Massie, R-Ky., is called the Surveillance State Repeal Act and would completely repeal both the PATRIOT Act and the FISA Amendments Act, which the NSA cites as legal authority for the “Prism” and “upstream” programs that “incidentally” collect untold amounts of domestic content. A group of whistleblowers endorsed that bill yesterday.

Senator Patrick Leahy, D-Vt., the ranking Democrat on the Judiciary Committee, has called the bill “the most significant reform to government surveillance authorities since the USA Patriot Act was passed nearly 14 years ago.” But of course that’s a low bar.

Leahy added that the current bill “is a path forward that has the support of the administration, privacy groups, the technology industry — and most importantly, the American people.”

And indeed some anti-surveillance groups are lining up behind the bill, partly in the hope that they may be able to make it stronger.

The Center for Democracy & Technology announced that it is supporting the bill, which it called “a significant first step in broader government surveillance reform,” but added that even with passage “there would still be much more work to done to enhance privacy protections from overbroad government surveillance.”

“Introduction of the USA FREEDOM Act is a significant step toward meaningful surveillance reform,” Amie Stepanovich, U.S. Policy Manager at Access, said in a statement. “Congress has considered multiple ways to rein in the NSA for almost two years but has failed to take any real action. We are running out of time, and the people are running out of patience.”

The Open Technology Institute announced its support for the bill “as the last, best hope for surveillance reform.”

Photo of Sen. Patrick Leahy: T.J. Kirkpatrick/Getty Images

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