The Senate Has a New Plot to Thwart NSA Spying

A reworked bill in the Senate being introduced this week is renewing confidence among anti-surveillance crusaders still hollering for reform.

WASHINGTON, DC - SEPTEMBER 17: Sen. Patrick Leahy (D-VT) talks to reporters after a Democratic Senate policy luncheon, on Capitol Hill, September 17, 2013 in Washington, DC. He was asked questions about gun control and yesterday's Navy Yard shooting.
National Journal
Dustin Volz
July 28, 2014, 11 a.m.

More than a year after Ed­ward Snowden’s leaks ig­nited a furi­ous de­bate over the prop­er scope of gov­ern­ment sur­veil­lance, Wash­ing­ton may fi­nally be ready to fun­da­ment­ally re­define the Na­tion­al Se­cur­ity Agency’s broad spy­ing powers.

Key sen­at­ors have been work­ing with the White House, tech com­pan­ies, and pri­vacy groups to rally be­hind a new bill that is ex­pec­ted to be in­tro­duced Tues­day.

Bar­ring last-minute changes or a sud­den break­down in ne­go­ti­ations, the forth­com­ing le­gis­la­tion—the cul­min­a­tion of months of post-Snowden deal-mak­ing—likely rep­res­ents the best chance yet at NSA re­form in an oth­er­wise his­tor­ic­ally grid­locked Con­gress. The meas­ure is un­likely to earn a vote be­fore Au­gust re­cess, but it could go straight to the floor when Con­gress re­con­venes in Septem­ber and land on the pres­id­ent’s desk some­time this fall.

The bill, ac­cord­ing to re­cent drafts that cir­cu­lated late last week, would ef­fect­ively end the gov­ern­ment’s abil­ity to col­lect bulk metadata on Amer­ic­ans’ phone re­cords and ush­er in a series of new pri­vacy and trans­par­ency meas­ures de­signed to pre­vent ab­uses at the na­tion’s in­tel­li­gence agen­cies.

Cham­pioned by Sen­ate Ju­di­ciary Com­mit­tee Chair­man Patrick Leahy, the new meas­ure is a beefed-up ver­sion of the USA Free­dom Act that passed the House in May. The lower cham­ber’s of­fer­ing was watered down on its way to the floor be­cause of pres­sure from the White House, prompt­ing a num­ber of power­ful tech and civil-liber­ties groups to drop their sup­port.

At the time, Leahy said he was “dis­ap­poin­ted” that the House re­moved “mean­ing­ful re­forms” in­cluded in the ori­gin­al lan­guage of the Free­dom Act, and he vowed to work over the sum­mer to re­store some of them.

The Ver­mont Demo­crat’s ef­forts, for the mo­ment, ap­pear to have paid off. Leahy’s new Free­dom Act, ac­cord­ing to mul­tiple people who have seen re­cent drafts, would lim­it the amount of call-re­cords data the NSA can col­lect by tight­en­ing the defin­i­tion of what can be con­sidered a tar­get. The House’s le­gis­la­tion, crit­ics said, con­tained vague lan­guage that the NSA could have ex­ploited to define en­tire ZIP codes or oth­er broad se­lect­ors as an ap­pro­pri­ate “tar­get.”

Re­cent drafts of Leahy’s bill would re­quire the gov­ern­ment to be more trans­par­ent about how much data it is col­lect­ing—and what per­cent­age of that be­longs to Amer­ic­ans. It would also cre­ate a pan­el of ad­voc­ates to ar­gue pri­vacy and civil-liber­ties con­cerns be­fore the For­eign In­tel­li­gence Sur­veil­lance Court, which is tasked with ap­prov­ing the in­tel­li­gence com­munity’s sur­veil­lance or­ders and has been cri­ti­cized by re­form pro­ponents as act­ing like a rub­ber stamp on bulk data col­lec­tion.

All of those changes are in ad­di­tion to the baseline changes that passed the House, which would bar the gov­ern­ment from re­tain­ing bulk U.S. phone metadata—the num­bers and time stamps of calls but not their ac­tu­al con­tent. In­stead, phone com­pan­ies would keep those re­cords and be re­quired to hand them over to the NSA and oth­er in­tel­li­gence agen­cies only after the gov­ern­ment earned ap­prov­al for data searches from the FISA Court.

Fan­fare around Leahy’s bill rose over the week­end. On Monday, The New York Times ed­it­or­i­al board wrote a gush­ing re­view of the meat­i­er USA Free­dom Act, call­ing it a “break­through against the growth of gov­ern­ment sur­veil­lance power.”

But sur­veil­lance crit­ics aren’t cel­eb­rat­ing just yet. Many are still lick­ing their wounds after cer­tain pro­vi­sions in the ori­gin­al Free­dom Act were gut­ted in the House.

“If the bill in­tro­duced looks like drafts cir­cu­lat­ing, it will have con­sid­er­able sup­port from tech com­pan­ies and pub­lic-in­terest groups,” said Har­ley Gei­ger, seni­or coun­sel at the Cen­ter for Demo­cracy & Tech­no­logy. But Gei­ger quickly tempered his en­thu­si­asm, not­ing, “The Sen­ate is hard to pre­dict.”

Back­ing from the ad­min­is­tra­tion for the cur­rent pro­pos­al, however, could go a long way to min­im­ize res­ist­ance from na­tion­al se­cur­ity hawks such as Sen­ate In­tel­li­gence Com­mit­tee Chair­wo­man Di­anne Fein­stein, who has been an ar­dent de­fend­er of gov­ern­ment sur­veil­lance since Snowden’s leaks began last June.

The Cali­for­nia Demo­crat, ac­cord­ing to mul­tiple sources, has been at­tempt­ing to push a data-re­ten­tion man­date that would re­quire phone com­pan­ies to keep cus­tom­er data for a cer­tain amount of time that would ex­ceed cur­rent re­quire­ments set at 18 months. Mul­tiple pri­vacy ad­voc­ates said such a man­date would amount to a “pois­on pill” and would likely prompt a cas­cade of groups to drop their sup­port for the Free­dom Act.

Also un­clear is where key law­makers in the House stand. Rep. Jim Sensen­bren­ner, who au­thored the House’s ori­gin­al Free­dom Act, sup­ports the Sen­ate’s changes, an aide said. But House Ju­di­ciary Com­mit­tee Chair­man Bob Good­latte, a Vir­gin­ia Re­pub­lic­an who helped shep­herd the pre­vi­ous Free­dom Act through the lower cham­ber, has yet to in­dic­ate how he feels about the Sen­ate lan­guage.

“Once the Sen­ate acts, we will closely ex­am­ine the changes made,” a Ju­di­ciary aide said.

But oth­ers re­main con­fid­ent that if the Sen­ate over­comes op­pos­i­tion from a Fein­stein-led co­hort of de­fense hawks, the meas­ure will find little res­ist­ance in the House.

“I have not seen any­thing in that draft that strikes me as dif­fi­cult to ad­apt in the House,” said one House Demo­crat­ic staffer close to the NSA ne­go­ti­ations.

Amid the politick­ing, sur­veil­lance crit­ics are quick to point out that more could be done with Leahy’s bill, such as re­quir­ing a war­rant for “back­door” searches of Amer­ic­ans’ In­ter­net data in­cid­ent­ally col­lec­ted dur­ing for­eign sur­veil­lance, an idea that passed the House last month as an amend­ment to the an­nu­al de­fense ap­pro­pri­ations bill on a 293-123 vote. Sen. Ron Wyden has long ad­voc­ated for a bill that would close the so-called back­door loop­hole, but re­cent drafts of Leahy’s com­prom­ise did not in­clude such a pro­vi­sion.

And the le­gis­la­tion would do little to rein in the Re­agan-era Ex­ec­ut­ive Or­der 12333, which many have ar­gued is far more power­ful than either Sec­tion 215 of the USA Pat­ri­ot Act or Sec­tion 702 of the For­eign In­tel­li­gence Sur­veil­lance Act, which are the fo­cus of the Free­dom Act. Last week, the Pri­vacy and Civil Liber­ties Over­sight Board said it would began ex­amin­ing 12333, which al­lows the NSA to col­lect for­eign in­tel­li­gence without a war­rant—and “in­cid­ent­ally” scoop up com­mu­nic­a­tions data of Amer­ic­ans. It has been only nom­in­ally up­dated since its cre­ation.

“This [Leahy] bill is a par­tial fix,” CDT’s Gei­ger said. “It does not fix everything, or all of the great many prob­lems that are as­so­ci­ated with gov­ern­ment sur­veil­lance.”

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