NSA Reform Will Likely Have to Wait Until After the Election

Legislation to reform the government’s surveillance programs looks destined for a lame-duck session of Congress—and might not get touched at all until next year.

Civil liberties activists hold a rally against surveillance of US citizens as US President Barack Obama is expected to announce reforms of the National Security Agency (NSA) at the Justice Department in Washington on January 17, 2014.
National Journal
Dustin Volz
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Dustin Volz
Sept. 7, 2014, 4:35 p.m.

A bill that would cur­tail the gov­ern­ment’s broad sur­veil­lance au­thor­ity is un­likely to earn a vote in Con­gress be­fore the Novem­ber midterms, and it might not even get a vote dur­ing the postelec­tion lame-duck ses­sion.

The in­ac­tion amounts to an­oth­er sting­ing set­back for re­form ad­voc­ates, who have been agit­at­ing for le­gis­la­tion that would rein in the Na­tion­al Se­cur­ity Agency ever since Ed­ward Snowden’s leaks sur­faced last sum­mer. It also de­flates a sud­den surge in pres­sure on Con­gress to pass the USA Free­dom Act, which scored a stun­ning en­dorse­ment from Dir­ect­or of Na­tion­al In­tel­li­gence James Clap­per last week.

The hard-fought bill has a wide ar­ray of back­ing from tech com­pan­ies, pri­vacy and civil-liber­ties groups, the White House, and even the in­tel­li­gence com­munity. But mul­tiple sources both on and off Cap­it­ol Hill say the meas­ure is not a top le­gis­lat­ive pri­or­ity on a jam-packed Sen­ate cal­en­dar filled with oth­er agenda items, in­clud­ing un­re­solved fights over a con­tinu­ing res­ol­u­tion and the Im­port-Ex­port Bank.

“Ex­tremely un­likely,” one Sen­ate staffer said when asked wheth­er the bill would be con­sidered in Septem­ber.

The fail­ure to move on NSA re­form doesn’t stem from a lack of ef­fort. Sen­ate Ju­di­ciary Chair­man Patrick Leahy spent months up­dat­ing the USA Free­dom Act, an om­ni­bus re­form pack­age ori­gin­ally au­thored by Rep. Jim Sensen­bren­ner that passed the House back in May. Amid com­plaints from the tech lobby and pri­vacy groups alike that the House ver­sion was too weak, Leahy in­tro­duced a souped-up ver­sion of the bill in Ju­ly, just be­fore Con­gress broke for the sum­mer re­cess.

The bill would ef­fect­ively end the gov­ern­ment’s bulk col­lec­tion of phone metadata—the num­bers and time stamps of calls but not their ac­tu­al con­tent. Phone com­pan­ies such as Ve­r­i­zon would in­stead re­tain those re­cords, which in­tel­li­gence agen­cies could ob­tain only after be­ing gran­ted ap­prov­al from the For­eign In­tel­li­gence Sur­veil­lance Court. The bill would also ush­er in a host of ad­di­tion­al pri­vacy and trans­par­ency meas­ures, in­clud­ing a more pre­cise defin­i­tion of what can be con­sidered a sur­veil­lance tar­get.

Leahy’s of­fer­ing de­b­uted with wide fan­fare, with co­spon­sors ran­ging from tea-party hero Sen. Ted Cruz to lib­er­al stal­warts such as Sens. Ed­ward Mar­key and Chuck Schu­mer. But Sen­ate Ma­jor­ity Lead­er Harry Re­id has giv­en no in­dic­a­tion he wants to shep­herd the com­plic­ated bi­par­tis­an bill through his cham­ber so close to the midterm elec­tions. Re­id’s of­fice did not com­ment for this story, but even some re­form ad­voc­ates privately con­ceded that the polit­ic­al cal­cu­lus to pass a bill per­ceived as weak­en­ing the in­tel­li­gence agen­cies is un­fa­vor­able at a time when na­tion­al se­cur­ity con­cerns are rising in the Middle East and else­where.

But bey­ond the cal­en­dar squeeze and geo­pol­it­ic­al ten­sions, the Free­dom Act has nev­er had a clear path for­ward. It was not em­braced by de­fense hawks such as Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein or Sens. Ron Wyden and Mark Ud­all, who have be­come icons of the sur­veil­lance-re­form move­ment. The two Demo­crats said they wanted to strengthen the bill to re­quire war­rants for “back­door” searches of Amer­ic­ans’ In­ter­net data that can be in­cid­ent­ally col­lec­ted dur­ing for­eign sur­veil­lance hauls. Sources in­dic­ated that their sup­port for the Free­dom Act re­mains a bridge too far.

“We were told to go after Re­pub­lic­ans,” one in­dustry said.

Wyden and Ud­all’s reti­cence to pub­licly back Leahy’s bill may stem from a con­vic­tion that they can get a bet­ter deal next Con­gress, with Sec­tion 215 of the USA Pat­ri­ot Act—the leg­al un­der­pin­ning for the NSA’s phone-re­cords col­lec­tion—due to ex­pire on June 1, 2015.

But many see an NSA re­form de­bate that rolls in­to next year as no sure bet, re­gard­less of what party holds con­trol of the Sen­ate.

“If the USA Free­dom Act is not passed this Con­gress, we are really in un­charted ter­rit­ory, and the pro­cess has to start all over again,” said Har­ley Gei­ger, seni­or coun­sel at the Cen­ter for Demo­cracy & Tech­no­logy, a pro-re­form group. “All the ele­ments for re­form are in place now, but it just hap­pens that we don’t have much time.”

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